To begin, let's clarify what this is with a brief review. If you need a refresher on this VERY important case, please see here. This will be an update for those of you who have been at least following along a bit…
On July 4, 2023, District Court Judge Terry Doughty granted the following injunction. The injunction included HHS, NIAID, the Census Bureau, FBI, DOJ, Press Secretary and office, WH, CISA, and Homeland Security. It was accompanied by a 155-page ruling that dissected the harms.
Of course, the Government wants to censor and control your "Cognitive Infrastructure" as designated by CISA, so they appealed to the 5th circuit. There were oral arguments, and the panel at the 5th AFFIRMED the lower court order—with some exceptions and clarifications.
The 5th affirmed the injunction to many parties, including the FBI, WH, CDC, and Surgeon General, but NOT CISA. Immediately, the Government appealed to SCOTUS. However, Plaintiff states Missouri and Louisiana said, "Not so fast, we are actually going to ask the 5th to reconsider… We need CISA included.."
The SCOTUS placed a stay on the injunction, and then that stay expired as the 5th was deciding whether to amend the injunction to include CISA. Ultimately, in a massive win for free speech, THEY DID.
Then, the Government asked for cert at SCOTUS AGAIN. This time, with no further business pending at the lower court of appeals, the SCOTUS decided yesterday to hear this... It is important to note that they are hearing about the INJUNCTION—not the entire case—just a temporary injunction meant to STOP harm against all plaintiffs and all Americans.
There are problems, however, because the SCOTUS STAYED the injunction indefinitely until the case is heard, which means that the Government and CISA/FBI/WH/CDC/Surgeon General can continue to act as they were with impunity as we wait for SCOTUS to take the case.
The AGs of Missouri and Louisiana are rightfully happy that SCOTUS has decided to take this case. There is no way to look at the body of facts here and come to any conclusion other than what four other judges have come to in granting this temp injunction… However, anyone else jumping up and down about this shows a severe lack of knowledge of the case and what this really means.
As a matter of fact, Alito, Thomas, and Gorsuch felt it very important they state their dissent from the decision on the stay. I will break this down for you now.
A court has never before BARRED the Government from working with social media companies to censor and police terms of service, etc. This is a wildly important case, which is why the SCOTUS will hear it. It will affect the future in serious ways. I recently came across a case currently pending in NY involving RumbleVideo, which is represented by FIRE—it is along a similar vein. But that's it…
Journalists may be jumping up and down for engagement, but they clearly didn't read the concerns of the three dissenting justices—concerns that I share. This is a good thing because it shows these three HAVE familiarized themselves with this case—but it's bad because it seems to insinuate the rest of the justices haven't cared to do the same.
SCOTUS dissent does a FANTASTIC job of distilling down the history of this case so far—they have already proven It will likely succeed on the merits. Hence, the injunction was set to remedy in the interim so there are no further harms...
Here, dissenters state the qualifications for a stay on any injunction or decision at the lower—the Government would have to show that a likelihood of "irreparable harm" would come from the denial of a stay. How could the GOVERNMENT be harmed by an injunction that STOPS THEM ONLY from censoring free speech?? Dissenters state plainly the Government doesn't even come close to reaching the standard.
The Government merely presents hypotheticals of things that *might* happen—not a concrete example of harm at all. It reminds me of something earlier in the case at the district court. Stick with me for a brief segue.
When the district court judge granted expedited discovery for the purposes of determining whether this injunction would be necessary, he granted Plaintiff the ability to call certain witnesses for deposition. The Government fought him to be able to SEAL those depositions—and used hypothetical "threats" from people in the general public as their reason.
They couldn't show ONE SINGLE example of a threat or harm that had come to any of the people deposed, and Judge Doughty said, "No—you don't pass go." This is how the Government works—hypotheticals and nonsense that may never happen. It is great that SCOTUS dissent is calling it out… Anyway, I digress...
I love this section below because the entire time the Government has been fighting this injunction, they have been inventing hypothetical situations that ARE NOT EVEN COVERED BY THE INJUNCTION!! The Government has been saying that the injunction will prohibit THEIR speech when it is VERY tailored and would do NO SUCH thing. Let's break this down a bit...
Here, the dissent basically says the stay shouldn't take effect and that the Government should be able to immediately come to SCOTUS if they are affected in the ways THEY portray will be an issue.
The last sentence gives me hope—I'll quote it here and then explain my opinion on all of this. "At this time, in the history of our country, what the court has done, I fear, will be seen by some as giving the Government the green light to use heavy-handed tactics to skew the presentation of views on the medium that increasingly dominates the dissemination of news. That is most unfortunate."
I'm going to be a little adversarial in my opinion here because it is warranted. Journalists: Please, if you do nothing else, STOP using this case as your ticket to social media engagement. When you do this, you demonstrate you do NOT understand the case and mislead the people who read your publications on what is happening. PLEASE FAMILIARIZE YOURSELF WITH THE CASE IN IT'S ENTIRETY. TAKE THE TIME TO READ THE FILINGS THOROUGHLY—THEN WRITE/POST.
I am growing weary of having to come in behind events in this case after large accounts hype the "latest" decision as some massive huge windfall without reading or understanding what is really going on. People need THE FACTS. While lots of really amazing things have happened so far, and this case WILL and HAS been a win on so many levels, informing people without giving all sides is giving false hope and NOT informing people. This had to be said.
I am confident that the SCOTUS will ultimately rule in favor of the injunction. However, what irks me to no end is that the activity barred by the injunction will be allowed to continue unabated for the reasons specified in the dissent. A temporary injunction is a VERY important modality used to STOP ONGOING HARM as a case continues.
This case has been going on since May of 2022. The Plaintiffs continue to be harmed every single day in a very serious way—their FIRST AMENDMENT RIGHTS are being violated by the Government. Another stay on this is just ridiculous.
Add to that the fact that the Government has CONTINUALLY MISREPRESENTED the injunction on its face, in front of the court, without a care in the world, and the fact that there will be an election cycle in full swing before this is decided, and you have a recipe for absolute disaster.
I have been an absolute cheerleader for this case. It is IRON CLAD. It will WIN IN COURT. It has been fairly adjudicated at all levels, with brave and firm judges who see what is happening and are APPALLED. After YEARS of us screaming that the Government has censored our speech here, we FINALLY have an actual court case that proves it and will change our landscape FOREVER. Not to mention, there is a parallel case ongoing that challenges the taxpayer-funded NFPs that are working on behalf of the Government when even IT thinks its requests of social media cross their loose line of what Free Speech is.
But I am NOT happy with the decision to stay the injunction until spring. People are being harmed every single day, and the SCOTUS—because of what seems to be sheer laziness—is just allowing that to keep happening unabated.
Remember—the actual CASE is ongoing. That will be decided at the district court level first and will undoubtedly be appealed just as this decision on the temporary injunction. So, I am happy because we already know at least three justices see government action for what it is and have called out their lies. But the fact that the others haven't bothered even to READ the damning evidence?? Not so good in terms of deciding on this stay. When they do read and hear arguments? They will all kick themselves at what they have done here. Where are you, Kavanaugh, and Barret?? WAKE UP.
