On Independence Day last month, Western District Louisiana federal district judge Terry Doughty preliminarily enjoined the Biden administration from continuing its censorship regime in place. Judge Doughty’s 155-page memorandum is posted online here. Judge Doughty’s preliminary injunction is posted here.
I anticipated the interlocutory appellate proceedings in “Walk away, Joe.” The government’s appeal of Judge Doughty’s preliminary injunction came before a three-judge panel of the Fifth Circuit for oral argument this past Thursday. Matt Taibbi was there and has posted an excellent report on it in the subscribers-only Racket News post “In Landmark Censorship Case, Judges Grill the Feds.”
Taibbi quotes Judge Jennifer Walker Elrod: “What appears to be in the record are these irate messages from time to time from high ranking government officials that say, you didn’t do this yet,” she said. “It’s like ‘Jump!’ and ‘How High?’”
Taibbi has no doubt that the oral argument didn’t go well for the government but remains cautious about the outcome. Having listened to the recording of the oral argument, I would throw caution to the wind and predict that the government is going to lose this appeal in substance (check out, for example, Judge Don Willett homing in on the government’s argument around 15:00). Bonus guess: Judge Elrod will write the opinion.
Department of Justice appellate attorney Daniel Tenny represented the government in the oral argument and was up first. Former Missouri Solicitor General John Sauer responded on behalf of the state plaintiffs at 32:30. Current Missouri Solicitor General Joshua Divine supplemented Sauer’s argument on the issue of state standing at 1:04:00. Tenny undertook his rebuttal at about 1:13:00. Tenny did better in rebuttal than in his opening argument.
As Taibbi observes, John Sauer is a powerful advocate. If one enjoys the give and take of oral argument or aspires to do it better, one can listen and learn from Sauer. He is a master of the form. I would like him to slow down a little, but I am in awe of his ability.