On July 4, a federal district court issued an aberrant decision blocking the Biden administration from communicating with social media companies. Constitutional law scholars Laurence Tribe and Leah Litman promptly and thoroughly dismantled the “reasoning” behind the decision in Missouri v. Biden. But it’s worth examining two other aspects of the decision and its potential to harm our judicial system if it is not reversed.
First is the disintegrity of how the case came to be, particularly in comparison to Special Counsel Jack Smith’s approach to even-handed justice. Second is the omission of an especially relevant precedent that somehow goes uncited in the 155-page decision. Together, these two points underscore the decision’s risk of sowing great mistrust in the law.
Let’s start with the decision. Judge Terry Doughty, a Trump appointee who was confirmed to the bench in 2018, ruled that Republican attorneys general were likely to succeed in their claim that the First Amendment prohibits government efforts to persuade internet companies to remove false COVID-related information.
As Tribe and Litman write, however, “[C]onsiderable precedent . . . recognizes that the government can ask private parties to remove content.” The government, too, has the right to speak in support of its policies, so long as it does not compel citizens’ speech. There’s no evidence cited showing that “the government came even close to coercing social media companies into doing something they didn’t want to do.”
Nonetheless, Doughty issued a nationwide preliminary injunction to prevent federal agencies from even “meeting with social-media companies for the purpose of urging, encouraging, pressuring or inducing in any manner the removal, deletion, suppression, or reduction of content” of the messages at issue.
How did the lawsuit end up in the Western District of Louisiana, and how does its route compare with that taken by a straight-shooting advocate of nonpartisan justice?
Doughty’s courtroom is a favorite for red state attorneys general shopping for a conservative cause-friendly judge. As Bloomberg reports, those state AGs “stumbled upon Doughty in 2021 in challenging a moratorium on oil and gas leasing and then sought him out specifically by shopping cases to him in the Monroe Division of the Western District.”
Compare these state officials’ gaming the system with how Special Counsel Smith has proceeded against Donald Trump. Smith could have filed (and still can file) some charges in DC or New Jersey. Instead, he chose to file only in Florida where he, somewhat predictably, drew a judge who had shown favoritism to the defendant and where the jury pool is sure to be more favorable than it would be in the other venues.
He effectively announced to the world his belief in the system and his case, wherever it is tried and before any judge.
This matters, because the rule of law depends upon the citizens’ belief in fairness and in the equal administration of justice. In contrast to Smith’s approach, judge-shopping from the start in Missouri v. Biden leads to cynicism about the games lawyers play.
The signs of unfairness show up when lower court decisions fail to cite relevant precedent like Walker v. Texas Division, Sons of Confederate Veterans, a 2015 Supreme Court decision. There, the Court rejected a claim by the plaintiffs that the First Amendment entitled them to have Texas accept their proposed license plates featuring a Confederate battle flag.
The Court held in Walker that a state’s specialty license plates are “government speech,” and the First Amendment allows the government, like any individual or corporation, to engage in and control its own communications so long as they do not force citizens to carry a particular message.
Here’s what’s notable about the opinion in Walker. “When government speaks,” Justice Stephen Breyer’s majority opinion states, “it is not barred by the Free Speech Clause from determining the content of what it says.”
What’s more, Breyer’s opinion, joined by Justice Clarence Thomas and three others, explained why: “Were the Free Speech Clause interpreted otherwise, government would not work. . . . “ In words presciently relevant to most of the claims in Doughty’s case, the Court asked how a government could effectively develop programs designed to encourage and provide vaccinations, if officials also had to voice the perspective of those who oppose this type of immunization?”
This was five years before COVID. A Supreme Court ruling with these words would seem to be relevant to a decision holding that the government could not try to persuade social media companies to take down false information about a pandemic and sound public health policy.
A mere oversight by the law clerk doing the research? Perhaps. But to all the world it looks like partisan state attorneys general succeeded in shopping for a judge who would rule for their anti-Biden, anti-vaccine cause without regard to precedent.
Elections have consequences for the federal bench. President Biden has done well rebalancing it by appointing 176 judges committed to the rule of law without fear or favor.
Still, jurists like Judge Doughty have lifetime appointments. Can we keep more judges who rule ideologically from gaining such tenure? That will depend on all of us in November 2024.