President Biden is not going to walk away from the extensive censorship regime he has implemented in the executive branch. The censorship was preliminarily enjoined on Independence Day by Chief Judge Terry Doughty of the Western District of Louisiana in Missouri v. Biden. Judge Doughty’s injunction order is posted online here. It is supported by Judge Doughty’s 155-page memorandum here. I commented briefly on the injunction in “Enjoining Mr. Joe” and John in detail at greater length in “A major blow against censorship.”
On Wednesday the Biden administration filed a notice of appeal. The notice of appeal brings the preliminary injunction before the Fifth Circuit Court of Appeals. Injunctions present an exception to the rule that cases are not subject to appeal until they are over. Thus the reason for Judge Doughty’s lengthy memorandum setting forth the evidence compiled in discovery so far. Judge Dougthy’s factual recitation consumes pages 4-87 of his memorandum. The factual recitation runs over into Judge Doughty’s discussion of the plaintiffs’ probability of success in the following pages through 119 as well.
The government will undoubtedly seek a stay of Judge Doughty’s injunction pending appeal. Rule 8 of the Federal Rules of Appellate Procedure obligates the government to bring the motion first to Judge Doughty himself. He won’t grant it. The government will move for a stay in the Fifth Circuit. I think the standard governing a stay is similar to the standard governing review of the preliminary injunction itself.
To obtain or uphold a preliminary injunction, the plaintiffs must show: (1) a likelihood of success on the merits; (2) a substantial threat of irreparable injury; (3) that the threatened injury if the injunction is denied outweighs any harm that will result if the injunction is granted; and (4) that the grant of an injunction will not disserve the public interest. See, e.g., Louisiana v. Biden, No. 22-30019 (5th Cir. 2022).
What is the government to do without the authority to cajole, harass, and coerce social media into suppressing “misinformation,” “disinformation,” and the like? It’s an emergency and the government’s wise counsel is not illegal in any event (e.g., “Defendants maintain their interest in being able to report misinformation and warn social media companies of foreign actors’ misinformation campaigns outweighs the Plaintiffs’ interest in the right of free speech”). I think that will have to be the gist of the thing in addition to the other legal issues discussed in the memorandum. It seems to me that Judge Doughty has written a strong opinion in the most important free speech case to have come down the pike since I don’t know when.
