In an order about a long-running and controversial case of social media censorship, a federal judge picked by Donald Trump seems to have made fun of Vice President Kamala Harris on Friday.
In the order, U.S. District Judge Terry A. Doughty wrote, “We now consistently proceed—burdened by what has been.” This seems to be a reference to one of the failed presidential candidate’s famous and often-used stump speech lines: “unburdened by what has been.”
The court also talks about “regime change” and how Robert F. Kennedy could soon be in charge of a federal public health agency. They describe this possibility as “relevant” and “wild.”
In the main case, Republican attorneys general in Louisiana and Missouri sued the Biden administration over a policy that told social media sites to take down false information about COVID-19. They said that the requests to do so were in violation of the First Amendment.
This 155-page opinion and order from the district court came out on Independence Day in 2023. It compared the Biden administration to Orwell’s “Ministry of Truth.” In a separate order, Doughty told federal officials and agencies to stop all communication with social media companies that might affect free speech.
The government made an appeal and lost at first.
Conservative judges on the U.S. Court of Appeals for the Fifth Circuit agreed with Doughty in September 2023 that it was likely that the FBI, CDC, the White House, and the COVID-19 Response Team broke the First Amendment by “encouraging and coercing” social media sites to “censor disfavored” speech.
After some days, the Department of Justice went to the highest court in the country.
In her request for a stay until the appeal was heard, Solicitor General Elizabeth Prelogar called Doughty’s original order “an unprecedented injunction that makes the US District Court for the Western District of Louisiana in charge of the Executive Branch’s communications with and about social media platforms.”
The case was first called Missouri v. Biden, but it was later changed to Murthy v. Missouri. It was then sent back to the district court, which was a win for the government.
The majority opinion by Justice Amy Coney Barrett, on the other hand, didn’t get into the details of the controversy. Instead, it threw out the case using the conservative standing doctrine.
This is a legal theory that was created by judges in the 1920s to make it harder for people to sue the government for what they thought were violations of their rights.
Barrett wrote, “The main flaw in the history of restrictions is the lack of specific cause and effect findings in any single instance of content moderation.” “The District Court failed to make any.” The Fifth Circuit also did not.
The view goes on:
The plaintiffs, without any concrete link between their injuries and the defendants’ conduct, ask us to conduct a review of the years-long communications between dozens of federal officials, across different agencies, with different social-media platforms, about different topics. This Court’s standing doctrine prevents us from “exercis[ing such] general legal oversight” of the other branches of Government. We therefore reverse the judgment of the Fifth Circuit and remand the case for further proceedings consistent with this opinion.
As of now, Doughty is still sticking to his guns.
“This case began because Defendants violated Plaintiffs’ First Amendment rights to free speech,” the order says. “We had already said that Plaintiffs’ claims were likely valid and issued a preliminary injunction in their favor.” The Fifth Circuit agreed with most of it. But the Supreme Court didn’t.
The main part of the order tells both sides to come up with ideas for how to handle “jurisdictional discovery.”
This is not merits-based discovery, the court says. Instead, it is a way to find out if the claims can still be made by showing that the people making them have the right to do so. What should a district court do when it’s not clear whether it has jurisdiction or not? That’s how Doughty sums up the court’s question.
In real life, the plaintiffs had 14 days to think of another strong argument against the defendants. The defendants then had 14 days to respond to those arguments.
It’s possible that the issues at stake in the lawsuit will no longer be relevant in the near future, as the judge suggests, though he doesn’t use this exact legal term.
The order also says, “We end with the unavoidable truth that regime change is imminent.” “However, to decide this case based on regime change alone would be purely speculative, and our rules on standing, injunctions, and discovery all forbid such speculation.” So we’re not going to.
