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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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