supreme court – Techdirt (original) (raw)

T-Mobile Leans On Recent Supreme Court Chevron Ruling To Insist The FCC Can’t Require All Phones Be Unlocked

from the this-is-why-we-can't-have-nice-things dept

Last July the FCC announced it was moving forward with plans that should make unlocking your mobile phone easier than ever. According to the FCC announcement, the agency, with broad and bipartisan public support, has been working on new rules requiring that wireless carriers unlock customers’ mobile phones within 60 days of activation.

Wireless carriers, trying to monopolize consumer hardware and lock everybody into hardware and software walled gardens, historically had a brutal and draconian view of device unlocking. If you recall, you not only used to not be able to switch wireless phones between carriers, but companies routinely forced you to use their own, substandard mapping or GPS apps.

At various times unlocking your phone was also deemed downright illegal under the Digital Millennium Copyright Act (DMCA). We’ve come a long way (with wireless carriers dragged kicking and screaming most of the way), and very often it’s now possible to unlock your device and change carriers if your phone is paid off and you’re no longer under contract.

But the FCC correctly observed that the current guidelines surrounding unlocking are a mishmash of voluntary industry standards and inconsistent requirements — usually affixed to merger conditions or the use of certain spectrum. The agency’s new proposed rules should create some uniformity, and will even require that devices be unlocked if a user is under a wireless contract.

Unsurprisingly, wireless giants like AT&T and T-Mobile aren’t enthused. Both have been filing whiney missives with the FCC, claiming that clear unlocking rules will somehow prevent them from providing incredible value to U.S. consumers. T-Mobile has been going so far as to claim the rules would stop them from being able to offer cellphones on payment plans (which makes no coherent sense).

T-Mobile, a pale echo of the disruptive “uncarrier” it used to be before the Sprint merger, even went so far as to hint that the FCC might not have the authority to do any of this in the wake of the Supreme Court’s dangerous and corrupt Chevron ruling:

“[T]he Commission fails to point to specific statutory authorization for an unlocking mandate, and would have profound economic consequences, thus raising a ‘major question’ that would require clear statutory authority from Congress,” T-Mobile vice president of government affairs Clint Odom told Democratic commissioner Geoffrey Starks last week.”

Should the FCC proceed, T-Mobile hints the FCC will face legal action. That’s quite a tone change from a company that used to be viewed as a disruptive, consumer-centric player in the wireless space.

As [noted previously](http://“[T]he Commission fails to point to specific statutory authorization for an unlocking mandate, and would have profound economic consequences, thus raising a ‘major question’ that would require clear statutory authority from Congress,” T-Mobile vice president of government affairs Clint Odom told Democratic commissioner Geoffrey Starks last week.), corporations, well aware that they have a corrupt Congress in their back pocket, recently pushed the Supreme Court to dismantle what’s left of regulatory independence, throwing most consumer protection and regulatory autotomy into [legal chaos](http://“[T]he Commission fails to point to specific statutory authorization for an unlocking mandate, and would have profound economic consequences, thus raising a ‘major question’ that would require clear statutory authority from Congress,” T-Mobile vice president of government affairs Clint Odom told Democratic commissioner Geoffrey Starks last week.). It’s framed by corporate power earlobe nibblers as some noble streamlining of rule-making authority, but it’s just rank corruption, designed to prevent regulators from being able to implement popular reforms.

In this case, you’ve got a really popular and fairly basic streamlining of rules preventing wireless companies from restricting consumer choice. And yet even here you have companies trying to claim that the FCC now, post Chevron, lacks the authority to do absolutely anything of note. Post Chevron, you’re going to see a lot of this, across every business sector that impacts every last aspect of your life. Popular reform efforts vetoed by a corporations and a corrupt court.

Some, like this, are going to be problematic annoyances impacting relatively minor reforms. Others, in instances like environmental or public safety reforms, will absolutely prove fatal. Yet it’s been hard to get journalists, the public, or even many policy folks to understand the full scope of what’s coming.

Filed Under: 5g, chevron, fcc, lobbying, phones, smartphones, supreme court, telecom, uncarrier, unlocked phones, unlocking, wireless
Companies: t-mobile

Seventh Circuit Allows Indiana’s Controversial Age Verification Law, For Now

from the age-verification-is-still-unconstitutional dept

The U.S. Seventh Circuit Court of Appeals has allowed Indiana’s age verification law to go into effect — even as the Supreme Court has suggested a similar law in Texas might be unconstitutional. The Seventh Circuit panel handed down this ruling, letting the law go into effect just weeks after the U.S. Supreme Court decided to take up a case challenging Texas’s nearly identical age verification law.

The high court just granted cert in that case, Free Speech Coalition et al v. Paxton. Free Speech Coalition (FSC), the trade group representing the adult content industry, sued Texas Attorney General Ken Paxton in a bid to block Texas’ HB 1181 law, which mandated age verification for adult content sites.

That law is quite similar to the one Indiana passed. In the Texas case, a split panel at the Fifth Circuit found HB 1181 to be constitutional, despite the Texas federal district court ruling that existing precedent made it clear that age verification mandates were unconstitutional. The Supreme Court agreed to review the 5th Circuit’s decision allowing the law to go into effect, but in the process they declined to block HB 1181 while litigation played out.

The ruling allowing the Indiana’s law to go into effect is quite peculiar. FSC sued the state of Indiana to block enforcement of Senate Bill (SB) 17, their age verification law. Judge Richard L. Young for the Southern District of Indiana ruled SB 17 “facially” unconstitutional and issued a preliminary injunction for the plaintiffs, blocking the law from taking effect. This ruling followed on many other rulings around the country rejecting age verification mandates as unconstitutional.

Indiana Attorney General Todd Rokita appealed the injunction to the Seventh Circuit. There, the majority opinion deferred to the Supreme Court’s allowance of Texas HB 1181 to stay in effect through the course of FSC v. Paxton as justification for the Indiana law to be enforced.

In other words, Indiana should be able to enforce its own law as well because SCOTUS is allowing Texas to enforce its law for now. The judges did this as a means to maintain “judicial efficiency.” They also put the case regarding the Indiana law on hold until the Supreme Court rules on Texas’ law.

While the judges concurred on staying the injunction against SB 17, Seventh Circuit Judge Illana D. Rovner dissented in part. Judge Rovner wasn’t convinced by Indiana’s argument that it was in the state’s interest to enforce the law, per the horrid precedent set by the Fifth Circuit, when it found age verification rules specifically targeting porn websites to be constitutional. Judge Rovner characterized these types of laws as potentially “burdensome.”

Consider this portion of Judge Rovner’s dissenting opinion:

“[We] impose a cost on the businesses and individuals that have to comply with the Act, and curtail their First Amendment rights, based solely on an unreasoned stay denial even though the only court decision as to this Indiana statute held that the burden is unconstitutional. And such a precedent could have drastic consequences in a future case where the economic burden of a statute was even greater by subjecting the parties to that burden while awaiting the Supreme Court’s decision without ever considering the relative harms to the parties.”

All three of the Seventh Circuit judges – Judges Frank H. Easterbrook, Amy J. St. Eve, and Rovner – determined SB 17 to be “functionally identical” to HB 1181. And since HB 1181 is already being enforced and the Supreme Court allowed it to stay in force during the ongoing litigation, it was deemed fair to follow this ruling and allow SB 17 to go into force as well. Rovner does note it is troubling they granted the motion to allow SB 17 to be enforced without ever considering the harm an age verification mandate would have on the suing platforms and users.

“Here…the district court held that the statute was unconstitutional, and granted a preliminary injunction, enjoining it on First Amendment grounds and denying the motion to stay that injunction. The result, of course, is that the Indiana statute has never been in force, unlike the Texas statute. We have not yet had the opportunity to consider the appeal on the merits, and therefore, the current state in our case is that the plaintiffs have not been required to comply with the burdensome requirements of the Act.”

The Seventh Circuit declined to rule on the constitutionality of SB 17, unlike the Fifth Circuit in the case of Texas HB 1181. It only looked at whether or not the law could go into effect now or should be stayed.

Rovner rightly points out that the Supreme Court’s decision to grant cert in the Paxton case should cause some more careful thinking by the Seventh Circuit. It at least indicates that some at the Supreme Court feel the case in the Fifth was decided incorrectly.

One could as easily argue that the Court’s grant of certiorari signals a concern with the Fifth Circuit’s determination of constitutionality, and favors leaving the district court’s determination in place.

When reviewing these laws, it’s reasonable to think SCOTUS might believe that the Fifth Circuit erred in using rational basis (or, similarly, that it erred in how it applied that scrutiny). That would explain why it took the case. And thus, Rovner is correct that it’s a bit odd for the Seventh Circuit to effectively bless the Fifth Circuit’s approach right at the very moment the Supreme Court had indicated it may have problems.

Rovner also points out that the majority’s decision in the Seventh Circuit claims to be in favor of keeping the “status quo,” but that makes no sense, given that Indiana’s law has never been in force, and this move puts it into force:

Here, in contrast, the district court held that the statute was unconstitutional, and granted a preliminary injunction, enjoining it on First Amendment grounds and denying the motion to stay that injunction. The result, of course, is that the Indiana statute has never been in force, unlike the Texas statute. We have not yet had the opportunity to consider the appeal on the merits, and therefore, the current state in our case is that the plaintiffs have not been required to comply with the burdensome requirements of the Act. If we were to alter that status quo, we should do so only by considering the stay on the merits and determining that a stay is appropriate under that analysis

Either way, for now the law is in effect, and Rokita can go after adult content sites for not making use of age verification while we wait for the Supreme Court to determine if the Fifth Circuit was correct in the first place.

Michael McGrady covers the legal and tech side of the online porn business, among other topics.

Filed Under: 5th circuit, 7th circuit, age verification, indiana, ken paxton, supreme court, texas, todd rokita
Companies: free speech coalition

Big Telecom Asks The Corrupt Supreme Court To Declare All State And Federal Broadband Consumer Protection Illegal. They Might Get Their Wish.

from the our-solution-is-to-simply-break-everything dept

Mon, Aug 19th 2024 05:25am - Karl Bode

As we recently noted, telecom giants like AT&T and Comcast are having some very good luck using a corrupt, MAGA-heavy court to not only kill popular net neutrality rules — but to effectively lobotomize the FCC’s ability to protect broadband consumers at all.

Leveraging the recent Supreme Court Lopper rulings, telecom lawyers are trying to argue that pretty much any effort to protect consumers from telecom monopolies is outside of the scope of the 1996 Telecom Act, whether or not precedent (whatever that’s worth now) or logic agrees. It’s the same story you’ll soon see played out across every industry that touches your lives post Chevron.

But in their so-far successful effort to kill the federal regulatory state, Comcast, AT&T, and friends have created a new quandary. Courts have repeatedly ruled that if the federal government abdicates its authority to protect broadband consumers from monopoly harm, states are fully within their legal right to step in and fill the void.

For every state whose legislature telecoms have completely captured (Arkansas, Missouri, Tennessee), there’s several that have, often imperfectly, tried to protect broadband consumers, either in the form of state level net neutrality laws (California, Oregon, Washington, Maine), crackdowns on lies about speeds or prices (Arizona, Indiana, Michigan), or requiring affordable low income broadband (New York).

In 2021 at the peak of COVID problems, New York passed a law mandating that heavily taxpayer subsidized telecoms provide a relatively slow (25 Mbps), $15 broadband tier only for low-income families that qualified. ISPs have sued (unsuccessfully so far) to kill the law, which was upheld last April by the US Court of Appeals for the 2nd Circuit, reversing a 2021 District Court ruling.

New York’s efforts to provide broadband to poor people was predicated on the Trump administration’s unpopular decision to repeal net neutrality and strip away the FCC’s Title II authority over telecoms. If big telecom blocks the restoration of this authority (and it’s looking likely so far based on hints from the sixth circuit), states are bolstered, as noted above, to step in and fill the void.

Telecoms like AT&T are frightened of states doing their jobs to protect consumers and market competition from their bad behavior. So a group of telecom trade groups this week petitioned the Supreme Court with a very specific ask. They want the court to first destroy FCC broadband consumer protection oversight and net neutrality, then kill New York’s effort, in that precise order, in two different cases.

Verizon, AT&T, and Comcast argue that if they are successful at killing FCC oversight of broadband consumer issues, states will follow NY’s lead and (gasp) try to offer poor people inexpensive broadband. Something they falsely claim will stifle their ability to expand broadband access:

“Other States are likely to copy New York once the Attorney General begins enforcing the ABA [Affordable Broadband Act] and New York consumers can buy broadband at below-market rates. As petitioners’ members have shown, New York’s price cap will require them to sell broadband at a loss and deter them from investing in expanding their broadband networks. As rate regulation proliferates, those harms will as well, stifling critical investment in bringing broadband to unserved and underserved areas.”

Big Telecom lawyers trot this claim out any time the government attempts to hold them accountable for anything (they falsely claimed the same about net neutrality and numerous merger approvals). But as local monopolies that see little real oversight or competition, they’re already disincentivized to actually care about shoring up broadband access, especially to poor, rural, minority markets.

In short, leveraging MAGA court corruption, telecoms want to make federal and state broadband consumer protection effectively illegal. The bullshit claim they feed a lazy press is that they’re rebalancing constitutional power and protecting the public from “renegade regulators.” If people want specific protection, they’ll insist, Congress should step in and pass a new, very clear, well-crafted law.

But telecoms spend an estimated $320,000 on lobbying Congress every day to ensure Congress never reforms much of anything. In reality, what these companies want is to protect their lucrative and harmful regional monopolies from federal/state government oversight and market competition. They want it all, they want no limits, and they don’t much care about the broader impact on real people.

And there’s a very real chance they’re going to get it.

Telecom consumer protection groups (which have been all but invisible in terms of modern strategic vision or social media public messaging as this shitshow unfolds) will almost certainly insist that something will protect the public from the worst possible outcome here. But post-Roe, rosy cheeked optimism as to what our corrupted courts will or won’t do just doesn’t carry the same weight.

You’d like to think that somewhere in the bowels of the sixth circuit exist adults who realize the madness and chaos caused by dismantling the federal government with no real additional backup plan. But I don’t think after the last few years that’s any sort of easy assumption.

Again, post-Chevron, some variation of this is going to be playing out in every industry that touches your lives. Logic or precedent be damned, corporate lawyers are going to argue that every consumer protection, public safety, environmental, or campaign finance regulator in the country can’t enforce or create new protections without the approval of FedSec judges or a corrupt Congress.

You’re getting an early sneak peak with telecom and net neutrality, but some variation of this will soon be playing out everywhere thanks to an easily-bribeable Supreme Court stocked with people who think utterly demolishing the girders of governance forges an amazing new utopia. For them.

For the rest of us, the result is going to be absolute legal chaos and an almost incalculable level of every day real-world harms, as any existing and future regulatory enforcement U.S. corporations don’t like grinds to a halt. Already feckless U.S. regulators will also be less incentivized than ever to push for reforms for fear of costly legal challenge.

Journalists, public policymakers, and activists have done an utterly abysmal job at making the full scope and impact of all of this clear to the public. But without immediate and massive Supreme Court and congressional campaign finance reforms (which, by any indication, aren’t coming anytime soon) the impact is going to be anything but subtle, and in many cases, deadly.

Filed Under: broadband, chevron, consumer protection, high speed internet, loper, new york, supreme court, telecom
Companies: at&t, comcast, verizon

Age-Gating Access To Online Porn Is Unconstitutional

from the we've-done-this-already dept

Texas is one of eight states that have enacted laws that force adults to prove their age before accessing porn sites. Soon it will try to persuade the Supreme Court that its law doesn’t violate the First Amendment.

Good luck with that.

These laws are unconstitutional: They deny adults the well-established right to access constitutionally protected speech.

Texas’ H.B. 1181 forces any website made up of one-third or more adult content to verify every visitor’s age. Some adult sites have responded to the law by shutting down their services in Texas. The Free Speech Coalition challenged the law on First Amendment grounds, arguing that mandatory age verification does more than keep minors away from porn — the law nannies adults as well, barring them from constitutionally protected speech.

The district court agreed with the challengers. Laws regulating speech because of its content (i.e., because it is sexually explicit) are presumed invalid. Under strict scrutiny, the state must show that its regulation is narrowly tailored to serve a compelling government interest. In other words, the government needs an exceptionally good reason to regulate, and it can’t regulate more speech than necessary.

The case will turn on what level of scrutiny applies. Protecting minors from obscene speech is a permissible state interest, as the Fifth Circuit court established when it applied the lowest form of scrutiny — rational basis review — to uphold the law. But not all speech that is obscene to minors is obscene to adults. Judge Higginbotham, dissenting from the Fifth Circuit’s decision, pointed out that kids might have no right to watch certain scenes from Game of Thrones — but adults do.

In previous cases regulating minors’ access to explicit content, the Supreme Court applied strict scrutiny specifically because the laws restricted adult access to protected speech. Texas hopes to get around decades of precedent by arguing that there is no way that age verification “could reasonably chill adults’ willingness” to visit porn sites. If adults don’t care about age verification, Texas reasons, nothing in the law stops them from viewing sexually explicit material: No protected speech is regulated.

There’s just one problem: Adults do care about age verification.

H.B. 1181 bars age verification providers from retaining “identifying” information. But nothing in the law stops providers from sharing that same info, and people are rightly concerned about whether their private sexual desires will stay private. That you visited an adult site is bad enough. Getting your personal Pornhub search history leaked along with your government ID is enough to make even the most shameless person consider changing their name and becoming a hermit.

Texas swears up and down that age verification tech is secure, but that doesn’t inspire confidence in anyone following cybersecurity news. Malware is out there. Data leaks happen.

A bored employee glancing at your driver’s license as you walk into the sex shop is not the same thing as submitting to a biometric face scan and algorithmic ID verification, by order of the government, before you can press play on a dirty video. Just thinking about it kills the mood, which may be part of the point.

Texas pretends there’s no difference between the bored bouncer and biometric scans, but if you knew the bouncer had an encyclopedic, inhuman ability to remember every name and face that came through the door and loose lips, well, you wouldn’t go there either.

Hand-waving away these differences is the kind of thing you only do if you’re highly ideologically motivated. But normal people are very reasonably concerned about whether their personal sexual preferences will be leaked to their boss, mother-in-law, or fellow citizens. Mandatory age verification turns people off of viewing porn entirely, and it chills their free expression.

Sexual preferences are private and sensitive; they’re exactly the type of thing you don’t want leaking. So, of course, sexual content is a particularly juicy target for would-be hackers and extortionists. People pay handsomely to keep “sextortion” quiet. If you’re worried about your privacy and you don’t trust the age verification software (you shouldn’t), you’re likely to avoid the risk up front. One adult site says only 6% of visitors go through age verification and that even fewer succeed. Thus the chilling effect: even though adult access to porn is technically legal, people are so afraid of having their ID and last watched video plastered across the internet that they stop watching in the first place.

If the Supreme Court recognizes this and applies strict scrutiny, it will ask whether less restrictive means could protect minors. Back in 2004, the Court tossed out COPA, a law requiring credit card verification to access sexually explicit materials, reasoning that blocking and filtering software would protect minors without burdening adult speech. Today’s filtering software is far more effective than what was available twenty years ago — as the district court found — and, notably, filtering software doesn’t scan adults’ faces.

Sex — a “subject of absorbing interest to mankind,” as one justice once put it — matters. Adults have the right to sexually explicit speech, free of the fear that their identifying information will be leaked or sent to the state. Texas can and should seek to protect kids without stoking that fear.

Santana Boulton is a legal fellow at TechFreedom and a Young Voices contributor. Her commentary has appeared in TechDirt. Follow her on X: @santanaboulton.

Filed Under: 1st amendment, age gating, age verification, free speech, ken paxton, porn, strict scrutiny, supreme court, texas
Companies: free speech coalition

6th Circuit Temporarily Puts Net Neutrality On Ice As The Post-Chevron GOP Assault On The Regulatory State Accelerates

from the who-needs-a-functioning-federal-government dept

Tue, Aug 6th 2024 05:22am - Karl Bode

We recently noted how the telecom industry, with the help of the recent Chevron ruling, was gearing up to deliver what it hoped would be the killing blow to popular net neutrality protections (read: broadly popular FCC rules designed to prevent telecom monopolies from abusing their market power to screw customers and competitors).

AT&T, Comcast, Verizon and friends certainly appear to be having some early success.

In June, the Sixth U.S. Circuit Court of Appeals won the lottery to hear the industry’s net neutrality challenge; a boon for telecoms given the Republican-heavy makeup of the court (the GOP historically always sides with the policy interests of big telecom).

In mid-July, the Sixth Circuit temporarily paused restoration of the rules. Now the court has granted an extended stay, preventing the rules from being restored until the courts can hash out the legal debate between industry and government, which won’t happen until at least November. There’s a very real possibility that thanks to a corrupt Supreme Court, the rules won’t survive legal challenge.

The court’s stay makes it pretty clear they’re inclined to see things the way of the telecom industry: namely that the FCC lacks the authority to impose net neutrality rules without a more specific new net neutrality law crafted by Congress. It doesn’t appear to matter that previous courts confirmed the FCC has that right, or that Congress is clearly too corrupt to pass more tailored consumer protections.

Courts had previously ruled — several times now — that the Communications Act allows the FCC to impose net neutrality rules — or classify/declassify broadband providers as common carriers under Title II of the Act — provided they based their determinations on some kind of actual logic.

Post Chevron and the successful, corporate-funded attack on the “major questions doctrine,” that painful, multi-decade effort to establish precedent appears trashed, much to the thrill of telecom giants. Major questions doctrine declared that regulators with informed expertise had some leeway within the confines of what’s often vaguely or badly-worded law. Corporations like AT&T, knowing they had Congress under their lobbying thumb, didn’t much like that.

“The final rule implicates a major question, and the commission has failed to satisfy the high bar for imposing such regulations,” the court wrote. “Net neutrality is likely a major question requiring clear congressional authorization.”

There’s several instances in the ruling where Chief Judge Jeffrey Sutton also seems to imply the court is viewing the entire fracas in a way that will be favorable to industry.

“The consistency query makes matters worse,” Sutton wrote. “The Commission’s ‘intention to reverse course for yet a fourth time’ suggests that its reasoning has more to do with changing presidential administrations than with arriving at the true and durable ‘meaning of the law.’”

In short Sutton is implying that the FCC’s constant ping-ponging back and forth between partisan administrations on the issue means we need a new, clearer net neutrality law. You’re to ignore that Congress, which sees an estimated $320,000 in telecom industry lobbying influence every single day, is too corrupt and incompetent to ever actually do that.

Which is to say if the courts shoot down net neutrality, it’s not happening. At least on the federal level. But blocking the FCC from declaring broadband ISPs as common carriers also the Telecom Act also greatly restricts its consumer protection enforcement ability more broadly, the entire reason AT&T, Comcast and friends are pursuing this avenue of attack in the first place.

States could still help fill the void on net neutrality. Precedent (for whatever that’s worth anymore) has repeatedly established that if the federal government abdicates its authority over broadband consumer protections and net neutrality, states have full authority to step in and craft their own laws. For now at least; with fed authority defanged, state authority will be the next target of corporate power.

Only a few media outlets seem to understand the gravity of our new, post-Chevron reality. Regardless of precedent, impact, or logic, GOP-appointed lawyers are keen to dismantle most federal oversight of corporate power. It’s the culmination of a fifty-year vision to ensure the nation’s wealthiest and most powerful can pursue largely unchecked wealth accumulation with a disregard for real-world harm.

Most regulatory effort, rule, or enforcement will be challenged anew, posing grave risks to public safety, corporate accountability, functional infrastructure, and environmental reforms across every agency in America. Despite what should be obvious stakes and impact, most journalists and policy experts are treating concerns about the defanging of the regulatory state as either hyperbole or a real snoozer.

But what you’re seeing play out in telecom (federal corporate oversight defanged, states rushing to fill the void) is going to play out across every industry and sector that impacts your life, flooding the court system with absolute chaos for the foreseeable future. The impact will be historically large, incredibly dire, and absolutely none of it is going to be remotely subtle.

Filed Under: 6th circuit, broadband, chevron, consumers, fcc, high speed internet, net neutrality, supreme court, telecom

Justice Alito Almost Messed Up The Internet; Then He Threw A Temper Tantrum

from the doesn't-play-well-with-others dept

It turns out the internet was one Sam Alito petulant tantrum away from being a total disaster. In two key First Amendment cases, Alito was given the majority opinion to write. And, in both of them, his insistence on obliterating the old boundaries of the First Amendment caused other Justices to switch sides – and Alito to act like a spoiled brat.

This year, the Supreme Court session ran later than usual. Usually, they finish up by the end of June, but this year it extended the term over to July 1st. There were, obviously, a bunch of “big” decisions (Presidential immunity! Chevron deference!) that were held to the very end, including the two big internet cases: the NetChoice cases and the Murthy case.

As people awaited the decisions, there was a fair bit of SCOTUSology as court experts (and non-experts) speculated based on the number of decisions written by each Justice (and which months the cases were heard in) as to which Justice would have the majority decisions in remaining cases. I heard from quite a few such experts who expected that Alito would have the majority decision in the NetChoice cases, given that the other Justices all seemed to have majority opinions from February cases, and Alito’s name seemed to be missing.

Some people were surprised because in basically all of the internet cases oral arguments, Alito seemed quite out of step with the rest of the Court (and reality). When the decision finally came out, saying that the lower courts didn’t do the proper analysis for a “facial challenge,” it sent the cases back to the lower courts for a redo. But the majority opinion included some very important commentary about how the First Amendment still applies to social media editorial discretion. The overall ruling was technically a unanimous decision, but some noted that Justice Alito’s “concurrence” read like it had been written to be the majority opinion. It delves deeper into the facts of the case than a concurrence normally would (the majority opinion normally handles that).

Oh, and one other weird thing: in that final week of June, people were confused by Justice Alito not showing up to a couple of decision days, and his absence was never explained. Until now.

CNN now has quite an incredible insider’s tale of how Justice Alito had, in fact, been given the job of writing the majority opinion in the NetChoice cases, but lost it because he tried to push the decision too far into saying that states could regulate content moderation.

Alito, while receptive to the 5th Circuit’s opinion minimizing the companies’ speech interests, emphasized the incompleteness of the record and the need to remand the cases. Joining him were fellow conservatives Clarence Thomas and Neil Gorsuch and, to some extent, Barrett and Jackson.

On the other side was Kagan, leaning toward the 11th Circuit’s approach. She wanted to clarify the First Amendment implications when states try to control how platforms filter messages and videos posted by their users. She was generally joined by Chief Justice John Roberts and Justices Sonia Sotomayor and Brett Kavanaugh.

Alito began writing the court’s opinion for the dominant five-member bloc, and Kagan for the remaining four.

It’s also interesting that Justice Jackson was siding with Alito. During oral arguments, Justice Jackson asked some… odd questions, leading some to worry about how she might come down. The CNN report suggests those fears were legitimate.

Either way, Alito pushed his views too far and caused both Barrett and Jackson to bail out.

But when Alito sent his draft opinion around to colleagues several weeks later, his majority began to crumble. He questioned whether any of the platforms’ content-moderation could be considered “expressive” activity under the First Amendment.

Barrett, a crucial vote as the case played out, believed some choices regarding content indeed reflected editorial judgments protected by the First Amendment. She became persuaded by Kagan, but she also wanted to draw lines between the varying types of algorithms platforms use.

“A function qualifies for First Amendment protection only if it is inherently expressive,” Barrett wrote in a concurring statement, asserting that if platform employees create an algorithm that identifies and deletes information, the First Amendment protects that exercise of editorial judgment. That might not be the situation, Barrett said, for algorithms that automatically present content aimed at users’ preferences.

Kagan added a footnote to her majority opinion buttressing that point and reinforcing Barrett’s view. Kagan wrote that the court was not dealing “with feeds whose algorithms respond solely to how users act online – giving them the content they appear to want, without any regard to independent content standards.”

Barrett’s concerns have been worrying to some, as it suggests that algorithmic recommendations may not be protected by the First Amendment. This would upset a bunch of what people thought was settled law regarding things like search engine recommendations. However, the hope is that if such a case comes before the Court (which it almost certainly will…), that a fuller briefing on the record would clarify that algorithmic recommendations are still speech.

As we noted, Alito’s concurrence reads pretty petulant. It declares the majority’s “First Amendment applies to social media” explanation as “nonbinding dicta.” CNN details that this was him being angry that he lost the majority on that case.

But the key reason he lost control over the decision seems to be that he, unlike the eventual majority, would have sided a lot more with the Fifth Circuit’s ruling, which upended a century’s worth of First Amendment law.

Alito had the backing of only two justices in the end, Thomas and Gorsuch. He expressed sympathy for state efforts to restrict what, in an earlier phase of the Texas case Alito called “the power of dominant social media corporations to shape public discussion of the important issues of the day.”

In his separate July 1 opinion for a minority, Alito pointed up why states might want to regulate how platforms filter content: “Deleting the account of an elected official or candidate for public office may seriously impair that individual’s efforts to reach constituents or voters, as well as the ability of voters to make a fully informed electoral choice. And what platforms call ‘content moderation’ of the news or user comments on public affairs can have a substantial effect on popular views.”

Like Oldham, Alito took jabs at the “sophisticated counsel” who challenged the state regulations.

The same article notes that Alito also lost the majority on another “Fifth Circuit misunderstands the First Amendment” case. The one involving Sylvia Gonzalez, who was retaliated against by the mayor for her efforts to shake up the local government. The Fifth Circuit originally said this was totally fine. Eventually, the Supreme Court sent the case back to the Fifth Circuit to try again.

But again, Alito tried to go too far:

When the justices voted on the case in March, the majority agreed that the 5th Circuit erred in the standard it used. Alito was assigned the opinion.

But as he began writing, he went further than the other justices in his review of Gonzalez’s case. Alito and his colleagues realized he couldn’t “hold five,” as the expression goes, for a majority.

A new majority agreed to dispatch the case with a limited rationale in unsigned opinion. Rejecting the 5th Circuit’s reasoning, the Supreme Court said the 5th Circuit had applied an “overly cramped view” of the court’s precedent for when people may sue for First Amendment retaliation claims. The high court noted that Gonzalez could not show evidence of whether officers handled similar situations differently because her situation, involving the alleged removal of a document, was exceedingly rare.

Alito also wrote a concurrence for that case, but here he went on a long rant basically explaining why even if the Fifth Circuit used the wrong standard, there were lots of reasons why Gonzalez should have lost her case. Basically, if he had written the majority opinion, all of this would have qualified as “nonbinding dicta” under Alito’s own standard. Now, at least, it’s just a concurrence.

But, apparently, because Alito was ticked off that he couldn’t “hold five” in either of these cases, it caused him to take his ball and go home (i.e., just not show up at the Court on decision days):

On June 20, when the chief justice announced the opinion in Gonzalez v. Trevino, Alito’s chair at the bench was empty. Alito missed that day, as a total four opinions were handed down, and the next, June 21, when the justices released five other opinions.

Justices sometimes skip one of these final days of the annual session, but usually there’s an obvious reason for the absence, such as travel to a previously scheduled speech. Court officials declined to provide any explanation.

Alito returned for the final four announcement days of the term, yet sometimes appeared preoccupied. On the last day, when Kagan announced the decision in the NetChoice case, Alito was reading through material he had brought along to the bench.

Poor baby.

In both cases, Alito’s view of the First Amendment seems disconnected from reality and history. And, in both cases, he still had a chance to write the majority opinion (sending both cases down on what is, effectively, technicalities). But, in both cases, he was unable to write a reasonable opinion, causing his colleagues on the bench to jump ship to more reasonable rulings.

And, in response, he decided to just sulk like a teenager who didn’t get his way. In the end, that left us with a much better, more First Amendment supportive majority decision (in both cases). But it’s truly incredible how close we came to bad decisions in each, and how both of those flipped due to Alito’s insistence on pushing his terrible, unsupported ideas about free speech.

Filed Under: 1st amendment, content moderation, free speech, samuel alito, supreme court, temper tantrum
Companies: ccia, netchoice

7 Years And A Supreme Court Visit Later, Court (Again) Rules Cop Can’t Sue Activist Over Violent Acts Committed By Others

from the back-to-what-it-always-should-have-been dept

I can’t even imagine what it must be like to fight an obviously bogus lawsuit for most of a decade. That’s what activist DeRay Mckesson has been dealing with since 2017.

Mckesson participated in a protest in Baton Rouge, Louisiana all the way back in July 2016. At that protest, Officer John Ford (previously known as “John Doe”) was struck by a chunk of cement thrown by a protester. In response to this, the officer not only sued Mckesson but also a Twitter hashtag (#blacklivesmatter) and a social movement (Black Lives Matter).

Almost immediately, his lawsuit was dismissed with prejudice by a Louisiana federal court, which ruled he couldn’t sue hashtags, social movements, or even the person who organized the protest wherein the officer had been injured by someone other than the person he was suing.

That should have been the end of it. But the officer apparently had plenty of money to burn. Decisions were appealed and re-appealed and, unfortunately, the next court in line to handle the officer’s (clearly deficient) complaint was the Fifth Circuit Court of Appeals.

If any appellate court can find a way to keep a cop happy, it’s the Fifth. And so it did that very specific job, reviving the lawsuit in 2019 by reasoning that Mckesson’s decision to lead the protest onto a freeway was a negligent enough action it justified suing him over an injury caused by another protester, even if it didn’t occur during this particular bit of highway blocking.

This went to the Supreme Court, which rejected the Fifth’s (third) attempt to get this right, sending it back to the Fifth, which sent it back down to the federal court in Louisiana with the massive amounts of often-contradictory notes it had compiled during its multiple takes on the lawsuit.

Finally, after seven years of litigation, four visits to the Fifth Circuit Appeals Court, and one trip to the nation’s top court, the district court in Louisiana has issued a ruling [PDF] that brings everything full circle: this lawsuit is bullshit and always has been. (h/t Short Circuit)

Plaintiff John Ford, a Baton Rouge Police Department officer, was on duty at a demonstration in Baton Rouge on July 9, 2016, when he was struck by a heavy object thrown by an unidentified demonstrator. Ford sued Defendant DeRay Mckesson, now the sole remaining Defendant, alleging that Mckesson negligently organized and led the protest and was therefore liable under Louisiana tort law for Ford’s injuries. Now before the Court is Defendant’s Motion for Summary Judgment, which argues that Plaintiff’s action must be dismissed because the summary judgment evidence shows that Defendant did not organize the protest, breached no duty to Plaintiff, and was not the cause-in-fact of Plaintiff s injuries. Plaintiff opposes the Motion. For the reasons that follow, Defendant’s Motion will be granted, and Plaintiffs action will be dismissed with prejudice.

Even if the court was inclined to read the state tort law as capable of covering acts performed by someone other than the person being sued, it would need a whole lot more connective tissue in terms of the defendant’s involvement in the act that injured the officer.

In this case, there’s not even evidence that Mckesson organized the protest, much less led it, and… much less committed any illegal act himself or encouraged others to do so.

That section, entitled “Mckesson organized and led the protest, references a “tweet of the location and time of the protest” that Defendant acknowledged “re-tweet[ing].” The section also cites deposition testimony about the organizing of the protest, in which Defendant said that he did not know the organizers personally, and only met them on the night of the protest.

As for Plaintiff’s own recollection of the protest, he testified that he did not “hear” Defendant giving any orders during the protest, although he heard Defendant “[tell protesters] to come out into the road.” Finally, Plaintiff submitted a video filmed in part by Defendant during the protest. In the five minutes of the video before Defendant’s arrest, Defendant in no way blocks traffic, engages in violence, or gives orders to anyone. Indeed, Defendant appears to be walking in the middle of the protest rather than at the head of it.

Given this, it’s impossible to allow the lawsuit to proceed. Doing so would mean anyone in the general vicinity of any incident or occurrence that might involve (at some point) criminal activity could be sued simply for being near the protest (or whatever) where criminal activity occurred. (All emphasis in the original.)

Although Defendant may have participated in similar protests in other places, none of the specific allegations regarding his role in this protest are supported by the evidence. In other words, Plaintiffs case for causation rests solely on Defendant’s possible presence at other protests and his possible direction of some protestors into the road. The Court will not impose liability on a protest participant for the actions of an unidentified individual under these circumstances.

Hopefully, that’s the end of it. I would have to assume (although IANAL) all appeal options have been exhausted. But this cop has been particularly tenacious in this case, determined to hold perhaps the most recognizable person in this protest at least indirectly responsible for the injury he sustained while policing the protest. But the law doesn’t work that way. It never has. But somehow this lawsuit managed to be reviewed by higher courts five times before ending the way it should have ended years ago.

Filed Under: #blacklivesmatter, 5th circuit, baton rouge, black lives matter, deray mckesson, free speech, louisiana, suing a hash tag, supreme court

from the can't-believe-we're-doing-this-again dept

I’m not going to go through all the background on this story, because we just did that yesterday. If you missed that post, it will help to go read it before reading this one. I concluded that post by noting that, thanks to district court Judge Terry Doughty petulantly claiming he can’t stay an obviously problematic injunction (and nearly identical to the injunction the Supreme Court just trashed in the Murthy decision), the DOJ would likely quickly run to the Fifth Circuit to ask for the same relief.

And run they did. Before my article had even posted, the DOJ had filed an emergency motion with the Fifth Circuit asking for a stay on these issues. The motion is basically the same thing the DOJ filed in the district court, just now asking the Fifth Circuit the same thing:

The government respectfully requests a stay pending appeal of the district court’s preliminary injunction. A stay is warranted because the Supreme Court previously stayed, and ultimately reversed, an identical injunction issued by the same district court based on the same record. The Supreme Court’s decision makes clear that the government is likely to succeed on appeal, and the Supreme Court’s prior stay confirms that the equities and the public interest warrant a stay while the appeal proceeds. We request relief by July 24, 2024, to allow sufficient time for the Supreme Court to consider an application for a stay, should the Solicitor General elect to file one. We have sought plaintiffs’ position but have not received a response.

Almost immediately, RFK and his co-plaintiffs filed a “nuh uh, we’re totally different” response using the same argument they had used in the district court:

The chief difference between this action and Murthy is the identity of the plaintiffs. The Kennedy Plaintiffs have a very different, “strong claim to standing,” and Mr. Kennedy in particular, as a candidate for President, has an urgent claim to relief. Murthy v. Missouri, 144 S. Ct. 32, 32-33 (2023) (Alito, J., dissenting from denial of leave to intervene) (“Indeed, because Mr. Kennedy has been mentioned explicitly in com munications between the Government and social media platforms, he has a strong claim to standing, and the Government has not argued otherwise. Our democratic form of government is undermined if Government officials prevent a candidate for high office from communicating with voters, and such efforts are especially dangerous when the officials engaging in such conduct are answerable to a rival candidate.”).

First of all, ignoring what the majority actually said while citing the dissent of the majority is a choice. But the main thing is that the core issue still stands. If the administration were actually coercing social media companies into their moderation decisions, then perhaps the plaintiffs would have standing.

But no one — including RFK Jr. — has presented any evidence of such coercion.

And therefore, the fact that he’s a candidate for President (with no chance to win) is meaningless here.

And, yes, if the administration was actually pressuring social media companies to silence other candidates for President, RFK Jr. would have a point. But social media companies have plenty of reasons to pull down RFK Jr.’s dangerous nonsense peddling that is making kids sick by creating vaccine hesitancy and other nonsense. That’s got nothing to do with the government suppressing speech of a rival candidate, and everything to do with that candidate spewing dangerous stuff.

But, this is the Fifth Circuit, which has a history of making decisions driven by ideology more than reality. So it’s entirely possible that they reject this, and the issue quickly returns to the Supreme Court’s shadow docket, as the government is forced to seek an emergency order putting a stay on the clearly ridiculous injunction.

That would be quite fast, and while the initial request would flow up through Justice Alito (who wrote the cantankerous dissent), I could see enough Justices getting pretty pissed off that the Fifth Circuit seemed to clearly not be paying attention to what the majority was saying in its ruling regarding standing.

Filed Under: 5th circuit, content moderation, doj, murthy v. missouri, rfk jr., supreme court
Companies: children's health defense, meta

Big Telecom Prepares For The Final Killing Blow Against Net Neutrality

from the here-we-go-again dept

Thu, Jul 11th 2024 05:29am - Karl Bode

Back in April the Biden FCC once again voted along party lines to restore net neutrality rules stripped away by the Trump FCC in a flurry of sleazy industry behavior that included using fake and dead people to create the illusion of public support. The Trump FCC was also caught making up a DDOS attack to explain away public outrage (net neutrality historically actually has fairly broad bipartisan support).

With the return of the rules, the telecom industry is once again taking the matter to court, filing a flurry of lawsuits in late May claiming the FCC lacks the authority not just to enforce net neutrality, but to protect broadband consumers at all. In June, the Sixth U.S. Circuit Court of Appeals won the lottery to hear the industry’s net neutrality challenge; a boon for telecoms:

“In a good sign for the broadband providers, the Sixth U.S. Circuit Court of Appeals in early June won the lottery to hear the net neutrality challenge. The Ohio-based appeals court is generally seen to lean conservative, with 10 of its 16 judges appointed by Republican presidents. But much is yet to be settled.

The judicial timeline could also be instrumental — if Trump wins in November, FCC lawyers under the next GOP chair will likely abandon defense of some of these more progressive rules in court. It’s possible the fight could one day land at the Supreme Court, where net neutrality critics like Justice Brett Kavanaugh already sit.”

Big telecom has a big advantage this time around: the Supreme Court’s recent ruling that dismantled Chevron deference, regulatory independence, and decades of well-established legal precedent. Years of court battles had pretty clearly established that the FCC has the authority to create — and repeal — net neutrality rules under the Communications Act — provided they justify it with data and logic.

But eliminating Chevron deference upends all of that, and as Colorado Professor Blake Reid notes, it’s very likely that the courts declare, after several years’ worth of billable hours for lawyers, that the FCC effectively has almost no consumer protection authority over telecom under the law:

“The easy money is that the Court’s conservative majority (including then-Judge Kavanaugh, who wrote a blistering dissent against an earlier iteration of the rules in USTA v. FCC), will simply rule that Title II of the ‘34 Act does not apply to ISPs. This result would obliterate the Damoclean pendulum of rules that has more or less kept ISPs in check over the last two decades and make it clear that America’s oft-reviled ISPs have free rein to, um, dutifully serve their customers.”

The FCC’s oversight of telecom was already fairly feckless and unevenly enforced after decades of lobbying. But should the courts head this direction, the FCC’s already shaky consumer protection authority would be effectively lobotomized without extremely explicit new laws from Congress. A Congress AT&T and friends have lobbied over decades into absolute corrupt gridlock and dysfunction.

AT&T and friends have routinely tried to argue that America wants net neutrality rules, Congress should simply pass a net neutrality law. But getting any consumer protection reforms through one of the most corrupt and broken Congressional bodies in U.S. history is a non-starter, and they know it.

Obliterating all meaningful federal oversight of telecom is a particular problem given U.S. telecom (contrary to industry claims) isn’t a functional free market; it’s a bunch of largely unaccountable regional monopolies tethered to our domestic surveillance systems. Companies that have spent the better part of the last generation crushing competitors underfoot and rendering federal oversight toothless.

In a recent filing, FCC lawyer Scott Noveck argues that Chevron wasn’t integral in the legal justifications underpinning their net neutrality rules:

“Loper Bright has no direct relevance here because the [Net Neutrality] order under review does not turn or rely on Chevron. Instead, the order consistently focuses on ascertaining the best reading of the Communications Act using the traditional tools of statutory construction – exactly as Loper Bright instructs.”

But if the courts ignore all logic, precedent, and consumer welfare (kind of a recurring theme lately) and rule against the FCC, nearly all of its consumer protection efforts could be in jeopardy, whether we’re talking about net neutrality, recent efforts to stop racism in broadband deployment, or even basic efforts to mandate transparency in broadband billing.

Net neutrality rules are set to go into effect on July 22, though the telecom industry filed a request on July 10 that the Sixth circuit block that from happening. That this is all happening so late in Biden’s term is thanks to the belated FCC nomination of Gigi Sohn, and the subsequent telecom-industry backed homophobic smear campaign that successfully stopped her from being seated by Congress.

One downside for big telecom: courts have repeatedly and clearly ruled that if the federal government is going to abdicate its consumer protection oversight of telecoms, states are well within their right to fill the void and pass their own net neutrality rules. Though even here, this creates a fractured landscape of inconsistent enforcement across each state border.

Now that they have Congress lobbied into corrupt gridlock, corporations are taking aim at what little regulatory independence exists within the ever-narrowing confines of law. Once they’ve successfully lobotomized regulatory independence, they’ll reallocate their resources to take aim at the last vestiges of state consumer protection authority. It’s a generational project, and it’s succeeding.

The great irony is that despite decades of infighting, shitty press coverage, and misinformation, U.S. net neutrality rules aren’t particularly onerous, won’t meaningfully impact telecom industry finances (by the industry’s own admission), and have never even been consistently enforced.

The battle has really always been about whether you want government oversight of a very broken and highly monopolized broadband industry. What it looks like if AT&T, Comcast, Verizon, Charter and friends see no coherent federal oversight whatsoever (something they’ve been gunning for for the better part of my life) is a very real possibility looming just over the horizon.

Contrary to the years of claims by telecom-industry funded think tankers and consultants, letting regional monopolies run amok isn’t going to have some near-mystical, Utopian outcome. It’s going to mean even higher prices, spottier access, slower speeds, less reliability, and all manner of new, obnoxious nickel-and-diming efforts. It will redefine market failure and regulatory capture, and it’s not going to be subtle.

Filed Under: chevron, high speed internet, net neutrality, supreme court, telecom

from the that's-not-how-any-of-this-works dept

RFK Jr. seems to believe that being a Kennedy and spouting anti-vax nonsense qualifies him to be President. Now, he’s taking his delusions to a whole new level by arguing that the Supreme Court’s Murthy decision means the government can’t even talk to social media companies anymore. Buckle up, folks, this is going to be a wild ride.

Vanity Fair recently had quite the takedown of RFK Jr. based on conversations with his own family members. It is made quite clear that RFK Jr. is not one to let facts get in the way of whatever nonsense he’s decided to claim to the world.

And while people can point to lots of high-profile ways in which that has played out, I’m going to point out one that is relevant to Techdirt’s general interests: RFK Jr. has been trying desperately to sue whoever he can think of to complain about getting booted from Facebook.

He has sued various social media companies, which have failed spectacularly (thanks to Section 230). He recently has decided to try suing Meta, yet again, in the belief that his Quixotic Presidential campaign somehow makes the issue different than it was before.

However, he also sued the Biden administration directly in 2023. He kept prattling on ignorantly, arguing that the administration is deliberately trying to stifle his speech (which is kind of hilarious, given that any time he talks, more people realize what a nutcase RFK Jr. actually is). RFK filed the lawsuit in the same court where Missouri/Louisiana and some other nonsense peddlers appeared to be having some success in their equally batshit lawsuit against the administration over social media moderation.

Soon after filing the case in the same court, where they were guaranteed to get the same judge, RFK sought to merge his case with the Missouri case. Judge Terry Doughty, after issuing his batshit crazy decision in the case, more or less agreed to merge Kennedy’s case into the Missouri v. Biden docket. He issued a similar injunction as the one he issued in that case, but put it on hold until ten days after the Supreme Court sent down its ruling in the original Missouri case.

As you likely now know, after getting a still crazy (but slightly less crazy) Fifth Circuit ruling, the Supreme Court took the case, newly dubbed Murthy v. Missouri, and made it clear that none of the plaintiffs could show standing. The majority opinion also made it quite clear that both the district court decision and the Fifth Circuit decision were crazy because they were willing to accept absolute nonsense as fact, when it was obviously not.

While that decision sent the case back down to the lower court, unless you were delusional and totally committed to believing things that were not true, you would realize that this basically meant that such a case had no chance to go anywhere.

Enter RFK Jr.

The day after the Supreme Court ruling came down, the DOJ did the proper thing and notified Judge Doughty of the Supreme Court opinion. The DOJ also pointed out that given the nature of the Supreme Court ruling, RFK Jr. also clearly lacked standing. So, rather than letting the injunction go into effect, the DOJ intended to file a motion asking Judge Doughty to “vacate” the injunction he had granted RFK.

While this Court’s stay remains in effect, the government intends to file with this Court a motion for an indicative ruling under Federal Rule of Civil Procedure 62.1 that the Court would vacate the preliminary injunction in Kennedy because the Kennedy plaintiffs (who relied exclusively on the same set of facts “before the Court in Missouri v. Biden,” ECF No. 6-1 at 2) lack standing under the Supreme Court’s analysis in that case. If the Court issues such a ruling, the government would seek a remand from the Fifth Circuit under Federal Rule of Appellate Procedure 12.1 to allow this Court to enter the requested vacatur. In the alternative, the government plans to ask this Court to stay the Kennedy preliminary injunction for the full duration of the pending appeal from that injunction, if the Court declines to enter the requested indicative ruling.

The DOJ also argued that the clock on the “10 days” until the injunction supposedly went into effect didn’t start ticking until the Supreme Court officially sent the decision to the lower court, which would be a month or so later:

Under Supreme Court Rule 45.3, the Supreme Court “will send” its judgment to the lower court “32 days after entry of the judgment, unless the Court or a Justice shortens or extends the time, or unless the parties stipulate that it be issued sooner.” The Supreme Court will accordingly send down its ruling on Monday, July 29, 32 days (plus a weekend day) from yesterday. The government understands this Court’s stay of the preliminary injunction in Kennedy to extend for ten days after that date—i.e., the date on which the Supreme Court “sends down” its ruling in Missouri.

RFK Jr’s lawyers jumped in to say “nuh uh” and to suggest that the injunction (which the Supreme Court had clearly rejected regarding the other plaintiffs in the case) should go into effect very soon.

Two days ago, on Wednesday, June 26, 2024, the Supreme Court handed down its ruling in the Missouri v. Biden case. See Murthy v. Missouri, No. 23-411, 2024 WL 3165801 (U.S. June 26, 2024). Accordingly, under the plain language of this Court’s ruling—and contrary to the Notice of Opinion filed yesterday by Defendants—it would appear that this Court’s stay will be “automatically lifted” on July 7, 2024—eleven days after Murthy was handed down—and that the preliminary injunction will, absent further judicial action, become operative on that day.

The DOJ then felt the need to file a “motion for clarification” from Judge Doughty. First, they point out that RFK’s lawyers are misrepresenting what Judge Doughty actually said in his ruling on the stay of the injunction:

Defendants disagree with the Kennedy Plaintiff’s interpretation, which does not accord with the Supreme Court’s rules governing the timing of when the Supreme Court “sends down” its opinions and judgments. The Kennedy Plaintiffs seize on the Court’s use of the phrase “handed down” at some points in its opinion—and if that were all the Court’s order said, then the Plaintiffs’ interpretation would be reasonable. But in the decretal language of its order—the part that has actual legal force—the Court unambiguously referred to the date on which the Supreme Court “sends down” its ruling. See Dkt. 38 at 23 (“IT IS FURTHER ORDERED that in light of the stay issued by the Supreme Court of the United States in Missouri v. Biden, this order is STAYED for ten (10) days after the Supreme Court sends down a ruling in Missouri v. Biden.”). Plaintiffs never acknowledge that language or attempt to square their interpretation with it.

But, even more importantly, the DOJ says, in effect, “hey, in light of SCOTUS saying ‘no standing’ for the other plaintiffs, how about we extend the stay on the injunction no matter what so we can brief you on why RFK also has no standing”:

In the alternative, if the Court adopts Plaintiffs’ characterization of the duration of the stay, Defendants request that this Court grant a 26-day extension of the stay beyond the expiration date urged by Plaintiffs, until and including Friday, August 2, 2024, to enable the parties to fully brief and this Court to decide (1) a motion by Defendants for an indicative ruling under Federal Rule of Civil Procedure 62.1 that the Court would vacate the preliminary injunction in Kennedy because the Kennedy plaintiffs lack Article III standing under the Supreme Court’s analysis in Murthy, and (2) in the alternative, a motion by Defendants for a stay pending appeal for the full duration of the pending appeal from that injunction, if the Court declines to enter the requested indicative ruling.

In response, RFK filed something saying that the DOJ should have requested this kind of clarification when Doughty first issued his “10 days” ruling:

If Defendants genuinely found the Court’s stay ruling unclear, or if they viewed eleven days as insufficient, they had five months to ask this Court or the Fifth Circuit for relief. Instead, Defendants sat on their hands, and now, five days after Murthy was handed down, Defendants move for “clarification” of a ruling that is already clear, and for the further stay of an injunction already on appeal.

But then, RFK goes on to argue (ridiculously, and wrongly) that he has much stronger arguments for standing on the basis of him being a laughably unqualified candidate for President.

The bottom line is that the Kennedy Plaintiffs have much stronger standing than did the Missouri plaintiffs, and Mr. Kennedy in particular, as a candidate for President who is still being brutally censored on major social media platforms (just as this Court predicted) , urgently requires and is entitled to vindication of his rights

But that’s not what gives you standing. What gives you standing, Bobby Jr., is actual evidence that the government coerced social media companies to shut down your accounts, and that it didn’t happen because your anti-vax nonsense violated their policies. And RFK can’t show that because it didn’t actually happen.

However, they also argue that the right place for this discussion is not in Judge Doughty’s courtroom, but rather at the Fifth Circuit. As we’ll discuss below, this was the most compelling bit to Judge Doughty who decided that this is out of his courtroom for now.

The DOJ then responded to this even more stringently, pointing out that RFK obviously has no standing, based on the Murthy ruling.

First, the Supreme Court’s decision in Missouri demonstrates that the Kennedy Plaintiffs lack standing to obtain a preliminary injunction. The Kennedy Plaintiffs stated that they “do not rest their claims on censorship of their own speech. Rather, Plaintiffs have brought this case as (and on behalf of) social media users, whose right to an uncensored public square is being systematically violated.” Dkt. 20 at 2.1 And this is the sole basis for standing that this Court found for Plaintiff Sampognaro, who “submitted no direct evidence of content suppression.” Dkt. 38 at 11. But the Supreme Court rejected this “startlingly broad” theory, “as it would grant all socialmedia users the right to sue over someone else’s censorship—at least so long as they claim an interest in that person’s speech.” Missouri, 2024 WL 3165801, at 16. And the Court held that such a theory fails to establish an Article III injury absent “any specific instance of content moderation” of a third-party to whom Plaintiff had a “concrete, specific connection,” “that caused [plaintiff] identifiable harm,” id. at 16-17. Plaintiffs fail to supply any such example.

Nor can the Kennedy Plaintiffs rely on a direct censorship theory of standing following Missouri because they have failed to show any future injury that is traceable to the government conduct they seek to enjoin—much less any future injury that is traceable to each of the governmental Defendants covered by the preliminary injunction. Id. at 7-8; see id. at 9 (“‘[P]laintiffs must demonstrate standing for each claim that they press’ against each defendant, ‘and for each form of relief that they seek.’”) (citation omitted). In Missouri, the Supreme Court explained that “[t]he primary weakness in” the plaintiffs’ reliance on “past restrictions” of their content by social-media platforms is that this Court made no “specific causation findings with respect to any discrete instance of content moderation”—in other words, no findings that any act of content moderation was attributable to actions by Defendants (much less a particular Defendant) as opposed to the third-party platforms’ exercise of their independent discretion. Id. at *8. The Kennedy Plaintiffs motion for a preliminary injunction, which “submit[s] no new evidence,” Dkt. 6-1 at 1, did not rectify that deficiency.

Furthermore:

Kennedy adduced no evidence establishing that any social-media company’s action against his accounts can be attributed to the actions of a Defendant. In fact, the record evidence is to the contrary: Facebook explained that it removed pages and accounts linked to the “[D]isinformation [D]ozen” “for violating [Facebook’s] policies,” and noted that it was not imposing a complete ban because “the remaining accounts associated with these individuals [were] not posting content that [broke Facebook’s] rules.” Missouri, Dkt. 10-1, Ex. 37 at 1. That suggests the relevant actions reflected the platform’s own decisions, not any governmental action.

The DOJ then also points to the recent Vullo decision from the Supreme Court, which reinforced the standards from Bantam Books in deciding whether or not a government official has coerced a third party to censor someone. The DOJ says that there’s no way RFK can meet the standards set forth in that decision:

As the Supreme Court recently emphasized in a decision issued after the Kennedy preliminary injunction, it is perfectly “permissible” for the government to “attempt[] to persuade” a private party not to disseminate speech, National Rifle Association, 602 U.S. at 188, so even a showing that platforms would not have taken content-moderation actions against plaintiffs’ speech but for the government’s actions would not suffice to show that those actions violated the First Amendment. Rather, the relevant question is whether the government’s “conduct … , viewed in context, could be reasonably understood to convey a threat of adverse government action in order to punish or suppress the plaintiff’s speech.”

The Kennedy Plaintiffs are unlikely to be able to demonstrate on the merits that the government coerced the platforms to act given the difficulties identified by the Supreme Court in even establishing that the government’s actions influenced the platforms. See Missouri, 2024 WL 3165801, at *13 n.8 (“acknowledging the real possibility that Facebook acted independently in suppressing [the plaintiff’s] content”). Accordingly, the injunction should be dissolved

The DOJ also points out that Doughty should stay the injunction if only because the issue is going to have to be dealt with by the Fifth Circuit anyway, and it’s standard practice to stay such an injunction until an appeal is decided. Also, they point out that if the Kennedy injunction goes into effect, it will bar all sorts of communications that the Supreme Court in Murthy said were perfectly normal, reasonable communications between government officials and private companies.

Because the universal preliminary injunction here is identical to the injunction in Missouri, it also will inflict exactly the same harms that the Supreme Court found sufficient to issue a stay in that case

But… the very next day, Judge Doughty basically wiped his hands of the issue, saying that the case is out of his court, and if there’s an issue they should take it up with the Fifth Circuit:

This Court lacks jurisdiction to address Defendants’ request. Generally, a notice of appeal divests the district court of jurisdiction over the judgment or order that is the subject of the appeal. Sierra Club, Lone Star Chapter v. Cedar Point Oil Co., Inc., 73 F.3d 546, 578 (5th Cir. 1996). The Court in Sierra Club noted that Fed. R. Civ. P. Rule 62(d) provides an exception to this rule when an appeal is taken from an interlocutory or final judgment granting, dissolving or denying an injunction where the district court may suspend, modify, restore, or grant an injunction during the pendency of the appeal upon such terms as to bond or otherwise as it considers proper for the security of the rights of the adverse party. Id. The court in Sierra Club further noted that the authority granted by Rule 62(c) does not extend to the dissolution of an injunction and is limited to maintaining the status quo.

But wouldn’t maintaining the status quo at least mean maintaining the stay that blocks the injunction from going into effect? He’s doing the reverse of “maintaining the status quo” by apparently letting his original injunction go into effect. Which means, in theory, that the government is yet again barred from talking to social media companies even as the Supreme Court just said that was stupid.

And thus… it seems that the DOJ is likely to make these arguments again before the Fifth Circuit, which is where logic and common sense go to die.

Filed Under: 5th circuit, doj, injunction, jawboning, murthy v. missouri, rfk jr., standing, supreme court, terry doughty
Companies: meta