We received some seemingly excellent news over the weekend. The appellate court of the 5th Circuit has reimposed the restrictions on the White House, the Centers for Disease Control and Prevention, and the FBI to stop bullying social media companies to censor content.
This has taken place ahead of the actual trial because two judges found that the practice was so egregious that it needed to be stopped right now before more damage is done to the First Amendment.
“The officials have engaged in a broad pressure campaign designed to coerce social-media companies into suppressing speakers, viewpoints, and content disfavored by the government,” a three-judge panel wrote in Missouri v. Biden. “The harms that radiate from such conduct extend far beyond just the Plaintiffs; it impacts every social-media user.”
That’s all excellent news so far. But there’s a fly in this ointment. The lower court’s injunction included restrictions on a whole host of agencies, including the Department of Homeland Security (and its sub-unit, the Cybersecurity and Infrastructure Security Agency, or CISA), and the State Department and its relationships with other third-party agencies.
I was personally disappointed that the initial injunction didn’t name the CIA and all of its thousands of proxies, to say nothing of the other 400-plus agencies in the administrative state of the federal government.
What’s strange and disappointing is that the appeals court stripped all of this out of its ruling. It vacated the most devastating parts of the injunction, including that which hit the Department of Homeland Security and the State Department. It specifically stripped out the list of defendants.
I’m not a lawyer or an expert in administrative law, but the decision is packed with hints and suggestions that this injunction might be mostly cosmetic. It stops the most aggressive and overt censorship but also offers a road map for how they can do this in other ways, simply by burying the mechanisms of control one layer more deeply.
In short, the initial injunction didn’t go nearly far enough. The renewed injunction, with its careful carve-outs, is far more toothless still.
What are the next steps? There will eventually be a trial and decision. That’s likely to be settled for the plaintiffs in some measure and will imply certain policies. That could be appealed to the Supreme Court, which might take years to unfold. In the meantime, it’s unclear as to whether and to what extent the true Deep State does face much of a restriction on its activities.
One way that we will know could come in a matter of days. If the White House appeals this injunction to the Supreme Court for an emergency ruling, it would suggest that some people at the top are very worried, even to the point of panic. If they do nothing, which is very possible, it means that they can live with the current ruling. That would be a very bad sign….