(Photo by Mario Tama/Getty Images)
On June 26, the Supreme Court issued a ruling in Murthy v. Missouri, AKA “the jawboning case.” It was a withering smackdown of the Fifth Circuit, authored by Justice Barrett and containing a mini-lecture on STANDING: HOW DOES IT GO. The case was an appeal from an order by District Judge Terry Doughty, who found that Louisiana, Missouri, and a handful of weirdos plucked from barstools on Tattooine, were entitled to sue the government for suggesting to Twitter that their opinions were dangerous and bad. The Fifth Circuit agreed and more or less enjoined the government from pointing out that anything online is dangerous and bad.
“To establish standing, the plaintiffs must demonstrate a substantial risk that, in the near future, they will suffer an injury that is traceable to a Government defendant and redressable by the injunction they seek,” the six majority justices wrote, as if speaking to high school students on a field trip to the nation’s capital. “Because no plaintiff has carried that burden, none has standing to seek a preliminary injunction.”
Naturally the three Sith Lords on the Court dissented.
Nothing has yet happened in that case, because the mandate has not issued. But there is movement in a related case thanks to Judge Doughty, whose understanding of civil procedure is matched only by his stellar drafting skills. And because that case involves Robert Kennedy Jr., who is currently LARPing as a presidential candidate, you know it’s going to be bonkers.
Kennedy is the “chairman on leave” of an antivaxx coffee klatsch known as Children’s Health Defense (CHD). In March of 2023, Kennedy and CHD sued half the Biden administration, including the Department of the Treasury and the Election Assistance Commission, for saying mean stuff about them during the COVID pandemic. Kennedy, who is represented by Tiger Daddy Jed Rubenfeld, requested injunctive relief and class certification on behalf of “all persons in the United States who have consumed news related to COVID-19 or U.S. Elections on Facebook, Twitter, or YouTube at any time from January 2020 to the present.” Naturally, the case was filed in the Western District of Louisiana.
Kennedy was consolidated with Murthy (previously captioned Missouri v. Biden), but the Kennedy plaintiffs didn’t make the certiorari cut at SCOTUS. On Valentines Day, Judge Doughty scribbled a little love note to them anyway. He issued a preliminary injunction barring much of the Biden administration from pointing out misinformation on social media platforms, although he stayed the order with this language:
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.
On June 27th, the government defendants filed a notice of the Murthy holding, politely coughing that they weren’t quite clear what the court meant by “sends down,” but noting that “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.’” That would put the “send down” date on July 29, meaning that the stay would be in effect through August 9. The DOJ expressed its intention to file a motion for indicative ruling, on the theory that Kennedy’s theory of harm and standing was no better than the Murthy plaintiffs’, after which they would move to vacate the injunction in whichever fashion the court found most congenial.
Kennedy responded that he understood Murthy to be “sen[t] down” upon release of the opinion, meaning the stay would automatically go into effect on July 7. The government then moved to clarify the injunctive order, tactfully noting that the Murthy holding would not obviously lead to the conclusion that Kennedy’s theory of standing should carry the day, and moving for expedited briefing that would allow the defendants time to appeal the proposed stay to the Fifth Circuit.
At which point, Kennedy immediately pivoted to claiming that Judge Doughty lacked standing to adjudicate any claims because the case was already on appeal to the Fifth Circuit.
“Defendants are asking the wrong court for the wrong relief,” he huffed, insisting that it was quite clear that the February injunction gave them a golden ticket, redeemable whatever the outcome of Murthy, and pointing to language from Judge Doughty’s order anticipating the date when SCOTUS would “hand down” its opinion.
“The term ‘handed down’ has a clear, long-established meaning in American jurisprudence: it refers to the date on which a court decides a case and files its decision,” they opined, citing a single, long-forgotten 1954 Supreme Court decision on collateral estoppel.
“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,” Kennedy continued. “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.”
Kennedy insisted that he has a much better claim to standing than the Murthy plaintiffs, and so should get his injunction despite their stinging loss:
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[.]
BRUTALLY CENSORED! By the major social media platforms! Who are … not the defendants in this case.
Judge Doughty has ordered briefing more or less on the government’s requested timeline. That should give him a few extra days to invent a new, batshit theory of standing before he has to send or hand down a ruling.
Missouri v. Biden [Trial Docket via Court Listener]
Kennedy v. Biden [Trial Docket via Court Listener]
Liz Dye lives in Baltimore where she produces the Law and Chaos substack and podcast.