Earlier this week, we blogged about the social media censorship cases that have been working their way through various courts of appeals, including the Sixth Circuit, and how one of those cases – the Fifth Circuit case – has now landed on the Supreme Court’s emergency docket.  As a reminder, the Sixth Circuit held that the plaintiffs in its case did not have standing to sue because, in the Panel’s judgment, the plaintiffs did not adequately allege that they suffered an injury fairly traceable to the government.  The Fifth Circuit case had more of a record developed in it and, based on that record, the Fifth Circuit held not only that the plaintiffs in its case had standing to sue at least some officials but also that those officials likely violated the plaintiffs’ First Amendment rights.  

Last Thursday – the same day that the Sixth Circuit issued its decision – U.S. Solicitor General Elizabeth B. Prelogar filed an emergency brief asking the Supreme Court to stay the injunction that the district court had granted in the Fifth Circuit case.  The plaintiffs have now filed their response in opposition to the DOJ’s application for stay of injunction.  Various amici have chimed in too, including, perhaps unexpectedly, a repeat player at the Sixth Circuit:  Benjamin M. Flowers on behalf of the State of Ohio. In the rest of this post, we provide a high-level discussion of the arguments contained in the briefs.  

All parties agree that a stay is only appropriate where (1) there is a reasonable probability that the Supreme Court will grant certiorari, (2) there is a fair prospect the Court will reverse, and (3) there is a likelihood that irreparable harm will result from the denial of a stay.  On the first stay element, General Prelogar argues that certiorari is likely because the Fifth Circuit’s state action theory is novel, disruptive, and in conflict with precedents from the D.C. and Ninth Circuits.  The plaintiffs skip over this element and proceed directly to the others.

On the second stay element, General Prelogar makes three primary arguments.  First, she asserts that the Fifth Circuit’s standing analysis “flouts bedrock principles of Article III . . . .”  Here, General Prelogar argues that the individual plaintiffs did not establish redressability and, most interesting for Sixth Circuit watchers, traceability.  On traceability, General Prelogar homes in on the same issue that preoccupied Judges Bush, Boggs, and White — that “respondents’ asserted instances of moderation largely occurred before the allegedly unlawful government actions.”  She further faults the Fifth Circuit for finding that the state plaintiffs had standing based on a right to hear their constituents.  According to General Prelogar, the right-to-hear theory is meritless and novel.  Additionally, General Prelogar argues that the Fifth Circuit’s state action analysis was too permissive, that no first amendment violation occurred, and that the injunction ordered by the district court, even as modified by the Fifth Circuit, was too broad. 

The plaintiffs respond that the district court made extensive factual findings supporting standing that the federal government never contests.  And the plaintiffs attempt to rebut General Prelogar’s traceability argument by countering that the injurious activity is still occurring and that the federal officials caused the censorship.  The state plaintiffs specifically argue that the Fifth Circuit was correct to find that the state plaintiffs had a “right to listen” to their constituents as evidenced by several cases they cited.  The plaintiffs also argue that the 5th Circuit’s state-actor analysis is correct and again reiterate that the government does not challenge the factual record.  Even if the government had challenged those factual findings, the plaintiffs argue, the findings would easily survive the permissive “clearly erroneous” standard of appellate review.  On the scope of the injunction, the plaintiffs assert that the government presents no alternate injunction that can achieve the relief they desire because the present injunctive relief is appropriately limited.

Moving to the third stay element, General Prelogar argues that the federal government and the public would be irreparably harmed without a stay.  She illustrates her point by highlighting hypotheticals of government actions that she believes could expose the government to contempt under the Fifth Circuit’s modified injunction.  Plaintiffs counter that the injunction does nothing more than what the First Amendment already requires and that abiding by constitutional strictures is not a cognizable harm.  Meanwhile, plaintiffs argue that allowing the censorship of millions “impoverishes the national conversation.”  In response to General Prelogar’s hypotheticals, the plaintiffs assert that a “handful of hypotheticals does not outweigh the documented history of ‘millions’ of actual free-speech violations.” In any case, plaintiffs contend that the hypotheticals are overblown because none of them are examples of actual coercion of censorship. 

As for Ohio’s amicus brief, it begins by quoting the warnings of former U.S. Attorney Generals Edward Levi and Robert Jackson (later Justice Jackson) against the unequal application of the law and the abuse of discretionary government power.  General Flowers then pivots to one of the canonical lines of First Amendment jurisprudence:  “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by words or act their faith therein.”  Ohio Amicus Br. at 6 (quoting W. Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943) (Jackson, J., writing for the Court)).  General Flowers argues that the government veered from that guiding principle in an uneven and politically biased manner.  And therefore, even if “the government ultimately shows that its conduct stopped short of violating the First Amendment (it will not), or that the respondents lacked standing to sue (it will not),” the public interest is in allowing this injunction to stand, and General Prelogar’s application should fail.  As of the time of this writing, the Supreme Court has yet to issue a decision, but the Court’s administrative stay ends tomorrow around midnight, so we’ll be on the lookout for some type of decision soon. 

Alon Farahan contributed to this article.