Biden hits the fan in the Fifth Circuit, part 2

A month ago the Fifth Circuit Court of Appeals heard the Biden administration’s plea to set aside Judge Terry Doughty’s preliminary injunction in Missouri v. Biden. Judge Doughty’s 155-page memorandum ruling in support of the injunction is posted online here. Judge Doughty’s injunction is separately posted here.

I anticipated the appellate proceedings in “Walk away, Joe.” Having listened to the oral argument before the Fifth Circuit, I threw caution to the wind and predicted that the government would lose the appeal in substance. In the event yesterday, the government lost the appeal — with respect to the White House, the Surgeon General, the CDC, and the FBI, although the injunction was reversed as to the other defendants and the terms of the injunction narrowed to Judge Doughty’s prohibition six, which the court modified “to target the coercive government behavior with sufficient clarity to provide the officials notice of what activities are proscribed.”

As modified, Biden et al. — the covered defendants set forth by institution and name at pages 72-73 — are prohibited from taking any “actions, formal or informal, directly or indirectly, to coerce or significantly encourage social-media companies to remove, delete, suppress, or reduce, including through altering their algorithms, posted social-media content containing protected free speech. That includes, but is not limited to, compelling the platforms to act, such as by intimating that some form of punishment will follow a failure to comply with any request, or supervising, directing, or otherwise meaningfully controlling the social-media companies’ decision-making processes.”

The Fifth Circuit has posted its opinion online here. When I threw caution to the wind and predicted Biden would lost this appeal, I also guessed that Judge Elrod would write the opinion. She may have, but the opinion is designated per curiam — by the court. The court has also granted the government’s request for a 10-day stay pending appeal to the Supreme Court, which may or may not see fit to hear the case at this point.

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