{"id":30961,"date":"2024-11-08T10:03:38","date_gmt":"2024-11-08T15:03:38","guid":{"rendered":"https:\/\/abovethelaw.com\/?p=1077174"},"modified":"2024-11-08T10:03:38","modified_gmt":"2024-11-08T15:03:38","slug":"fifth-circuit-lol-no-rfk-jr-you-dont-have-standing-to-sue-joe-biden-because-facebook-blocked-your-anti-vax-nonsense","status":"publish","type":"post","link":"https:\/\/abovethelaw.com\/legal-innovation-center\/2024\/11\/08\/fifth-circuit-lol-no-rfk-jr-you-dont-have-standing-to-sue-joe-biden-because-facebook-blocked-your-anti-vax-nonsense\/","title":{"rendered":"Fifth Circuit: Lol, No, RFK Jr. You Don\u2019t Have Standing To Sue Joe Biden Because Facebook Blocked Your Anti-vax Nonsense"},"content":{"rendered":"
\"Candidate

(Photo by Mario Tama\/Getty Images)<\/p><\/div>\n

It remains incredible to me that we sometimes have to rely on the nutty Fifth Circuit to correct the even nuttier \u201cMAGA favorite\u201d judges who issue the stupidest decisions in court cases. But now they\u2019ve done it again, as the Fifth Circuit has pointed out that, no,\u00a0RFK Jr. does not appear to have standing<\/a>\u00a0to sue Joe Biden because Facebook moderated some of his anti-vax nonsense.<\/p>\n

This will take some background coverage to get to where we are.<\/p>\n

If you\u2019ll recall, Missouri and Louisiana\u00a0sued Joe Biden<\/a>, 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\u2019d 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\u00a0a grand conspiracy<\/a>\u00a0to censor conservatives.<\/p>\n

The Fifth Circuit\u00a0rejected a lot<\/a>\u00a0of Doughty\u2019s 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\u2019t done anything wrong,\u00a0had in fact done something wrong<\/a>, but the Court chose not to tell us what).<\/p>\n

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\u00a0the plaintiffs had no standing<\/a>, particularly because they couldn\u2019t 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:<\/p>\n

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, \u201chave engaged in censorship of certain viewpoints on key issues,\u201d while \u201cthe government has engaged in a yearslong pressure campaign\u201d to ensure that the platforms suppress those viewpoints. 83 F. 4th, at 370. The platforms\u2019 \u201ccensorship decisions\u201d\u2014including those affecting the plaintiffs\u2014were thus \u201clikely attributable at least in part to the platforms\u2019 reluctance to risk\u201d the consequences of refusing to \u201cadhere to the government\u2019s directives.\u201d Ibid.<\/em><\/p>\n

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.<\/em><\/p><\/blockquote>\n

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)\u00a0haven\u2019t gone well at all<\/a>. 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.<\/p>\n

Once that was done, RFK Jr.\u2019s lawyers insisted that any plain reading of the Murthy ruling was that while maybe the others in the case didn\u2019t have standing,\u00a0clearly he did<\/a>. His explanation for this was complete and utter nonsense, but in Judge Doughty\u2019s court, that\u2019s enough. A few months back, Judge Doughty insisted that RFK Jr.\u00a0had done enough to show standing<\/a>\u00a0and his case against the Biden admin could proceed.<\/p>\n

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.<\/p>\n

Thankfully, the Fifth Circuit has now stepped in to\u00a0vacate that decision<\/a>, slap Doughty on the wrist, and suggest he try again.<\/p>\n

RFK Jr. relied heavily on two declarations: one from Mary Holland, the head of RFK\u2019s anti-vax organization Children\u2019s 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 \u201ctraceability\u201d of actual government actions leading to private companies\u2019 decisions to moderate.<\/p>\n

While Doughty skipped over the details and said \u201csure thing, looks like censorship to me,\u201d the three-judge panel here (Higginbotham, Stewart, and Haynes) realize that RFK\u2019s claims are just as weak as everyone else\u2019s 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.<\/p>\n

The Court in Missouri explained that \u201cthe vast majority of [the White House\u2019s] public and private engagement with the platforms occurred in 2021, when the pandemic was still in full swing\u201d and that \u201cthe frequent, intense communications that took place in 2021 had considerably subsided by 2022.\u201d Id. at 1994. The Court also noted that, \u201cin April 2023, President Biden signed a joint resolution that ended the national COVID\u201319 emergency\u201d and \u201c[t]he next month, the White House disbanded its COVID\u201319 Response Team, which was responsible for many of the challenged communications in this case.\u201d Id. at 1995. Regarding the CDC, the Court concluded that \u201cthe risk of future harm traceable to the CDC is minimal\u201d because \u201c[t]he CDC stopped meeting with the platforms in March 2022.\u201d Id. at 1994. Although \u201cthe platforms sporadically asked the CDC to verify or debunk several claims about vaccines,\u201d \u201cthe agency has not received any such message since the summer of 2022.\u201d<\/em><\/p>\n

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, \u201cthe plaintiffs and the dissent suggest[ed] that the platforms continue to suppress their speech according to policies initially adopted under Government pressure.\u201d Id. at 1995. The Court responded as follows:<\/em><\/p>\n

[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\u2019 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\u2014even those tainted by initial governmental coercion<\/em><\/p><\/blockquote>\n

Plaintiffs here have the same redressability problem.<\/em><\/strong><\/p>\n

We therefore conclude that the Holland declaration does not establish standing<\/em><\/p><\/blockquote>\n

As for the Rasmussen declaration, she\u2019s got the same problem:<\/p>\n

Rasmussen describes a series of content-moderation actions taken by social-media platforms against the Kennedy campaign and its supporters.<\/em>\u00a0But she does not trace any of the platforms\u2019 content-moderation actions against Kennedy back to the government.<\/em><\/strong><\/p><\/blockquote>\n

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.<\/p>\n

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:<\/p>\n

Here, the only new election-related evidence is the Rasmussen declaration. But the declaration does not cure the traceability problem from Missouri<\/em>\u00a0because it does not allege any government action that is responsible for suppression of Kennedy\u2019s campaign content<\/em><\/strong>. Kennedy must therefore rely on the same \u201cspeculative chain of possibilities\u201d 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\u2019s 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.<\/em><\/p><\/blockquote>\n

Again, it\u2019s 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 \u201cnah, dawg, that\u2019s not how it works\u201d ruling.<\/p>\n

End result:<\/p>\n

We therefore conclude that Kennedy lacks standing to seek a preliminary injunction for his claims concerning election-related content.<\/em><\/p>\n

Because Plaintiffs lack standing to seek a preliminary injunction against Defendants, we VACATE the preliminary injunction and REMAND to the district court.<\/em><\/p><\/blockquote>\n

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).<\/p>\n

But, at least for now, RFK Jr. is back sitting on the outside looking in. Something he should get used to.<\/p>\n

Fifth Circuit: Lol, No, RFK Jr. You Don\u2019t Have Standing To Sue Joe Biden Because Facebook Blocked Your Anti-vax Nonsense<\/a><\/p>\n

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Warner Bros CEO Zaslav Sees Big Opportunity For More Pointless Media Consolidation Under Trump 2.0<\/a>
\nEFF Responds To Gas Companies Trying To Use Trademark To Silence Parody<\/a>
\nPorn Is Protected Speech. Trump\u2019s New Presidency Will Test That Sentiment. The Courts Can Uphold It.<\/a>
\nJudge\u2019s Investigation Into Patent Troll Results In Criminal Referrals<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"

From the try-try-again dept<\/p>\n","protected":false},"author":205,"featured_media":1059843,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[11],"tags":[471,373,7673,11630,7],"class_list":["post-30961","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-technology","tag-facebook","tag-free-speech","tag-joe-biden","tag-rfk-jr","tag-technology"],"acf":[],"yoast_head":"\nFifth Circuit: Lol, No, RFK Jr. You Don\u2019t Have Standing To Sue Joe Biden Because Facebook Blocked Your Anti-vax Nonsense - Above The Law's Legal Tech Non-Event<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/abovethelaw.com\/legal-innovation-center\/2024\/11\/08\/fifth-circuit-lol-no-rfk-jr-you-dont-have-standing-to-sue-joe-biden-because-facebook-blocked-your-anti-vax-nonsense\/\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Fifth Circuit: Lol, No, RFK Jr. You Don\u2019t Have Standing To Sue Joe Biden Because Facebook Blocked Your Anti-vax Nonsense - 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