Vaccine skeptic Robert F. Kennedy Jr. will likely play a bigger role in the second Trump administration’s health policy than in holding the outgoing Biden administration accountable for alleged censorship by proxy, under a 5th decision of the United States Circuit Court of Appeals.
The non-precedential opinion, released the day before the election, went largely unnoticed, but follows in line with hurdles created by the Supreme Court in proving legal injury of federal agencies forcing tech platforms to censor government unfavorable stories.
Kennedy, an independent candidate in the presidential race before suspending his campaign in August, and his Children’s Health Defense have no legal standing for a preliminary injunction against President Biden, White House Press Secretary Karine Jean-Pierre, Surgeon General Vivek Murthy and the Department of Health and Human Services, among others, according to the unsigned opinion of a three-judge panel.
Their case will now return to the district court to decide whether they qualify for “other forms of relief, if any, and if not, dismiss the case for lack of standing,” according to the judges, nominees for Presidents Reagan, Clinton and George W. Bush, wrote jointly.
The future prospects of the Democrat-turned-independent-turned-Trump surrogate are so bright that Kennedy has promised to NBC News that he will not use his power in the next administration to “take everyone’s vaccines away” but rather “ensure scientific studies of safety and efficacy are available” so people can make “individual assessments” with “the best information.”
The Leader of ‘Make America Healthy Again’ originated as a future head of the Food and Drug Administration or Xavier Becerra’s successor to the HHS Secretary, and has even proposed the elimination of entire departments of the FDA, ironically calling the nutrition agency harmful to children.
Another 5th Circuit panel, consisting of Reagan, George W. Bush and Trump nominees, gave Big Tech a new hurdle Thursday in NetChoice’s challenge to a Texas law requiring platforms to practice viewpoint neutrality on third-party posts, remanding the case back to the district court to “answer fact-intensive questions… initially after thorough discovery.”
SCOTUS scolded the 5th Circuit this summer for ignoring NetChoice’s argument that HB 20 — the Texas law banning major social media platforms from engaging in anti-discrimination censorship — is inherently unconstitutional, not just in some applications, and because of it’ grave misunderstanding of First Amendment precedent and principle” in concluding that limiting editorial control does not “distort expression” and that Texas has a “valid” interest in altering social media feeds.
Monday’s ruling is limited to Kennedy and CHD, whose case was consolidated with a larger challenge by Missouri, Louisiana and censured doctors and an activist.
The latter group has submitted an application itself motion for further discovery to keep the case moving under the new SCOTUS parameters the week before the election, arguing that the Supreme Court had reviewed a “limited record” namely, “as just one example,” missing internal Facebook emails that explicitly state it was censoring content ‘under pressure from the (Biden) administration.”
After Kennedy and CHD filed new affidavits alleging that specific feds had “specifically targeted” them over past and ongoing censorship, the court ruled that they had standing and granted a preliminary injunction, which the 5th Circuit temporarily blocked .
The three-judge panel rejected how much those statements moved the needle.
CEO Mary Holland said Facebook parent Meta and YouTube banned CHD for three years, Facebook and sibling Instagram temporarily banned Kennedy before that, and “certain events in 2021” suggest Meta and YouTube “acted at the behest” of the White House, Murthy and Centers for Disease Control and Prevention to suppress “Disinformation Dozen” villain Kennedy.
“However, she does not discuss government actions beyond 2021,” says the unsigned opinion, which compares Holland’s statement to the evidence for Jill Hines, co-director of Health Freedom Louisiana, who was considered by SCOTUS to be the only conceivable plaintiff with standing in the Missouri Committee. led case that nevertheless only showed “past injury” traceable to the FBI.
The panel quoted a section of SCOTUS that said platform policies “tainted by initial government coercion” can now be enforced by the platforms of their own volition. The Netherlands has the same ‘restorability problem’, meaning an injunction would not help the claimants.
In fact, Brigid Rasmussen, chief of staff for Kennedy’s presidential campaign before dropping out and endorsing Trump, “did not trace any of the platforms’ content moderation actions against Kennedy back to the administration,” the advisory says.
Citing resumed communications between platforms, the FBI and the Department of Homeland Security’s Cybersecurity and Infrastructure Security Agency said: announced by Senate Intelligence Committee Chairman Mark WarnerD-Va., this spring – Rasmussen relied on a “speculative range of possibilities” to argue that censorship could be traced to the FBI.
This is the same problem Gateway expert publisher Jim Hoft had in the Missouri-led case, in which he was the only plaintiff alleging election-related censorship, the panel said.
“That chain does not become less speculative if the FBI states that it will continue to communicate with platforms about election misinformation,” and may “even more speculative now that he has suspended his presidential campaign,” the advisory said.
Trump-nominated judge Andrew Oldham, who took office just six months later Texas GOP Governor Greg Abbott made him general counsel, wrote Thursday’s ruling in the neutrality case in Texas.
The 5th Circuit cannot assess whether HB 20’s “unconstitutional applications significantly outweigh its constitutional ones,” as required for a facial challenge, because “the record is underdeveloped,” he wrote, citing SCOTUS in the consolidated NetChoice challenge for social media in Texas and Florida. media laws known as Moody.
“Who is covered… what activities are covered” and “how do covered actors moderate content? And to what extent does requiring each covered actor to explain its content moderation decisions burden its expression?” Oldham asked rhetorically.
NetChoice “steadfastly opposed (and the district court blocked) the very discovery” necessary to assess the constitutionality of HB 20 in every possible application, under SCOTUS precedent in the Florida consolidated case, and it showed brazenness by the 5th Circuit to tell SCOTUS to ignore and simply evaluate the “heartland applications” of the law – public news feeds.
“The Moody The court emphasized that plaintiffs cannot advance their First Amendment face claims by focusing on “heartland claims,” and that the court cannot curtail its assessment of who and what is covered by the law “at the insistence of plaintiffs,” Oldham wrote .
He mocked NetChoice for claiming HB 20’s “parameters” are “easy to sign,” while SCOTUS said it could apply to “direct messaging or event management” services, Gmail filters, Etsy customer reviews, financial exchanges from Venmo and Uber’s ride-sharing operation.
The lower court needs a “detailed understanding of how each actor involved moderates content on each covered platform,” Oldham wrote, citing SCOTUS that “different levels of editorial choice” and thus expressiveness may apply to the management of feeds and direct messages.
It doesn’t even know what algorithms each platform uses and how they might differ within the platform depending on the service, such as whether he said.
The court must consider “whether each involved actor on each covered platform engages in expressive activities at all when making content moderation decisions” and then “assess the extent to which the requirement to explain that platform’s content moderation decisions,” as the law says. required, “taxes the actor’s expression,” Oldham wrote.
Although NetChoice argued that “precise burdens on specific websites are not material,” the judge said it was “difficult to see how the court could possibly determine” whether an excessive burden applies to each actor and services involved “without taking into account to deal with, well, those burdens. “ – and as SCOTUS said, “also variations in those burdens across platforms.”