(Photo
by
Mario
Tama/Getty
Images)
It
remains
incredible
to
me
that
we
sometimes
have
to
rely
on
the
nutty
Fifth
Circuit
to
correct
the
even
nuttier
“MAGA
favorite”
judges
who
issue
the
stupidest
decisions
in
court
cases.
But
now
they’ve
done
it
again,
as
the
Fifth
Circuit
has
pointed
out
that,
no, RFK
Jr.
does
not
appear
to
have
standing to
sue
Joe
Biden
because
Facebook
moderated
some
of
his
anti-vax
nonsense.
This
will
take
some
background
coverage
to
get
to
where
we
are.
If
you’ll
recall,
Missouri
and
Louisiana sued
Joe
Biden,
falsely
claiming
that
the
White
House
engaged
in
a
campaign
to
censor
conservatives
on
social
media.
They
filed
this
in
a
federal
court
where
they
knew
they’d
get
Trump
appointee
Judge
Terry
Doughty,
who
appeared
to
deliberately
wait
until
July
4th
(a
day
the
courts
are
closed)
to
issue
a
truly
wacky
opinion,
who
also
took
a
bunch
of
nonsense,
lies,
and
conjecture
as
proof
of a
grand
conspiracy to
censor
conservatives.
The
Fifth
Circuit rejected
a
lot of
Doughty’s
nonsensical
injunction,
but
did
leave
some
of
it
in
place
(at
one
point,
bizarrely,
reissuing
its
decision
and
saying
that
one
part
of
the
government,
CISA,
that
it
initially
said
hadn’t
done
anything
wrong, had
in
fact
done
something
wrong,
but
the
Court
chose
not
to
tell
us
what).
Eventually,
the
case
made
its
way
to
the
Supreme
Court
(under
the
name
Murthy
v.
Missouri),
where
both
lower
court
rulings
were
effectively
tossed
out.
The
majority,
led
by
Justice
Amy
Coney
Barrett,
made
it
clear
that the
plaintiffs
had
no
standing,
particularly
because
they
couldn’t
show
that
any
content
moderation
efforts
by
the
social
media
companies
had
anything
to
do
with
actions
by
the
federal
government.
As
the
Supreme
Court
said:
The
primary
weakness
in
the
record
of
past
restrictions
is
the
lack
of
specific
causation
findings
with
respect
to
any
discrete
instance
of
content
moderation.
The
District
Court
made
none.
Nor
did
the
Fifth
Circuit,
which
approached
standing
at
a
high
level
of
generality.
The
platforms,
it
reasoned,
“have
engaged
in
censorship
of
certain
viewpoints
on
key
issues,”
while
“the
government
has
engaged
in
a
yearslong
pressure
campaign”
to
ensure
that
the
platforms
suppress
those
viewpoints.
83
F.
4th,
at
370.
The
platforms’
“censorship
decisions”—including
those
affecting
the
plaintiffs—were
thus
“likely
attributable
at
least
in
part
to
the
platforms’
reluctance
to
risk”
the
consequences
of
refusing
to
“adhere
to
the
government’s
directives.”
Ibid.
We
reject
this
overly
broad
assertion.
As
already
discussed,
the
platforms
moderated
similar
content
long
before
any
of
the
Government
defendants
engaged
in
the
challenged
conduct.
In
fact,
the
platforms,
acting
independently,
had
strengthened
their
pre-existing
content-moderation
policies
before
the
Government
defendants
got
involved.
Meanwhile,
while
all
of
this
was
going
on,
pretend-free
speech
supporter
RFK
Jr.
had
been
running
around
to
multiple
courts
trying
to
sue
over
the
fact
that
Meta
had
moderated
some
RFK
Jr.
related
content.
Those
cases
(there
are
multiple
ones) haven’t
gone
well
at
all.
Perhaps
seeing
an
opportunity
to
piggyback
on
the
Missouri/Louisiana
case,
he
filed
a
similar
case
in
the
same
district
and
tried
to
connect
the
cases.
Judge
Doughty
put
that
effort
on
hold
until
the
Supreme
Court
process
played
out.
Once
that
was
done,
RFK
Jr.’s
lawyers
insisted
that
any
plain
reading
of
the
Murthy
ruling
was
that
while
maybe
the
others
in
the
case
didn’t
have
standing, clearly
he
did.
His
explanation
for
this
was
complete
and
utter
nonsense,
but
in
Judge
Doughty’s
court,
that’s
enough.
A
few
months
back,
Judge
Doughty
insisted
that
RFK
Jr. had
done
enough
to
show
standing and
his
case
against
the
Biden
admin
could
proceed.
As
I
noted
in
my
writeup
of
this
ruling,
Judge
Doughty
came
to
this
by
completely
misrepresenting
a
ton
of
information
regarding
how
the
world
works.
Thankfully,
the
Fifth
Circuit
has
now
stepped
in
to vacate
that
decision,
slap
Doughty
on
the
wrist,
and
suggest
he
try
again.
RFK
Jr.
relied
heavily
on
two
declarations:
one
from
Mary
Holland,
the
head
of
RFK’s
anti-vax
organization
Children’s
Health
Defense
(CHD)
and
one
from
Brigid
Rasmussen,
the
chief
of
staff
for
his
doomed
political
campaign.
The
court
notes
that
the
Supreme
Court
had
clearly
instructed
lower
courts
in
the
Murthy
ruling
that
they
need
to
show
pretty
clear
“traceability”
of
actual
government
actions
leading
to
private
companies’
decisions
to
moderate.
While
Doughty
skipped
over
the
details
and
said
“sure
thing,
looks
like
censorship
to
me,”
the
three-judge
panel
here
(Higginbotham,
Stewart,
and
Haynes)
realize
that
RFK’s
claims
are
just
as
weak
as
everyone
else’s
involved
in
this
case.
Neither
of
the
new
depositions
show
anything
approximating
traceability.
Indeed,
the
court
notes
that
the
deposition
seems
pretty
similar
to
declarations
that
the
Supreme
Court
already
rejected
in
this
very
case.
The
Court
in
Missouri
explained
that
“the
vast
majority
of
[the
White
House’s]
public
and
private
engagement
with
the
platforms
occurred
in
2021,
when
the
pandemic
was
still
in
full
swing”
and
that
“the
frequent,
intense
communications
that
took
place
in
2021
had
considerably
subsided
by
2022.”
Id.
at
1994.
The
Court
also
noted
that,
“in
April
2023,
President
Biden
signed
a
joint
resolution
that
ended
the
national
COVID–19
emergency”
and
“[t]he
next
month,
the
White
House
disbanded
its
COVID–19
Response
Team,
which
was
responsible
for
many
of
the
challenged
communications
in
this
case.”
Id.
at
1995.
Regarding
the
CDC,
the
Court
concluded
that
“the
risk
of
future
harm
traceable
to
the
CDC
is
minimal”
because
“[t]he
CDC
stopped
meeting
with
the
platforms
in
March
2022.”
Id.
at
1994.
Although
“the
platforms
sporadically
asked
the
CDC
to
verify
or
debunk
several
claims
about
vaccines,”
“the
agency
has
not
received
any
such
message
since
the
summer
of
2022.”
Plaintiffs
argue
that
because
the
CDC
and
Kennedy
continue
to
be
censored,
their
situation
is
distinguishable
from
Missouri.
Missouri
demonstrates
the
flaw
in
that
argument.
There,
“the
plaintiffs
and
the
dissent
suggest[ed]
that
the
platforms
continue
to
suppress
their
speech
according
to
policies
initially
adopted
under
Government
pressure.”
Id.
at
1995.
The
Court
responded
as
follows:
[T]he
plaintiffs
have
a
redressability
problem.
.
.
.
The
requested
judicial
relief
.
.
.
is
an
injunction
stopping
certain
Government
agencies
and
employees
from
coercing
or
encouraging
the
platforms
to
suppress
speech.
A
court
could
prevent
these
Government
defendants
from
interfering
with
the
platforms’
independent
application
of
their
policies.
But
without
evidence
of
continued
pressure
from
the
defendants,
it
appears
that
the
platforms
remain
free
to
enforce,
or
not
to
enforce,
those
policies—even
those
tainted
by
initial
governmental
coercion
Plaintiffs
here
have
the
same
redressability
problem.
We
therefore
conclude
that
the
Holland
declaration
does
not
establish
standing
As
for
the
Rasmussen
declaration,
she’s
got
the
same
problem:
Rasmussen
describes
a
series
of
content-moderation
actions
taken
by
social-media
platforms
against
the
Kennedy
campaign
and
its
supporters. But
she
does
not
trace
any
of
the
platforms’
content-moderation
actions
against
Kennedy
back
to
the
government.
All
of
this
was
obvious
when
it
was
presented
to
Judge
Doughty.
The
Justice
Department
explained
this
to
Judge
Doughty,
but
he
ignored
it.
Now
he
has
to
find
out
about
it
from
the
Fifth
Circuit.
How
embarrassing.
RFK
tried
to
make
a
bigger
deal
by
trying
to
argue
that
he
had
standing
since
he
was
a
political
candidate
for
president
(sorta)
and
the
White
House
was
trying
to
suppress
his
campaign
(a
thing
they
were
not
actually
doing).
Again,
the
judges
are
not
impressed:
Here,
the
only
new
election-related
evidence
is
the
Rasmussen
declaration.
But
the
declaration
does
not
cure
the
traceability
problem
from
Missouri because
it
does
not
allege
any
government
action
that
is
responsible
for
suppression
of
Kennedy’s
campaign
content.
Kennedy
must
therefore
rely
on
the
same
“speculative
chain
of
possibilities”
as
Hoft
in
Missouri.
Id.
(quoting
Clapper,
568
U.S.
at
414).
That
chain
does
not
become
any
less
speculative
if
the
FBI
states
that
it
will
continue
to
communicate
with
platforms
regarding
election
misinformation.
If
anything,
Kennedy’s
chain
of
possibilities
might
be
even
more
speculative
now
that
he
has
suspended
his
presidential
campaign,
a
fact
of
which
we
may
take
judicial
notice.
Again,
it’s
pretty
incredible
how
much
bullshit
Judge
Doughty
was
willing
to
rubber-stamp,
even
to
the
point
that
an
entire
three-judge
panel
at
the
Fifth
would
issue
a
per
curiam
“nah,
dawg,
that’s
not
how
it
works”
ruling.
End
result:
We
therefore
conclude
that
Kennedy
lacks
standing
to
seek
a
preliminary
injunction
for
his
claims
concerning
election-related
content.
Because
Plaintiffs
lack
standing
to
seek
a
preliminary
injunction
against
Defendants,
we
VACATE
the
preliminary
injunction
and
REMAND
to
the
district
court.
It
will
not
surprise
me
at
all
if
Judge
Doughty
comes
up
with
some
other
method
to
keep
this
case
going.
He
really
seems
to
love
ignoring
reality
to
bless
a
fantasy
world,
made-up,
nonsense
case
in
which
the
Biden
administration
is
actively
telling
social
media
sites
who
to
censor
and
those
social
media
sites
are
eagerly
complying
(again,
something
that
has
not
happened).
But,
at
least
for
now,
RFK
Jr.
is
back
sitting
on
the
outside
looking
in.
Something
he
should
get
used
to.
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