Fifth Circuit Panel in Missouri v. Biden Withdraws Grant of Rehearing

Monday, the Fifth Circuit panel that decided Missouri v. Biden—which held that some federal government actions improperly "coerced or significantly encouraged" platforms to restrict certain user speech—issued an order saying that it granted a petition for rehearing. This meant that the panel would likely reconsider the decision, though it wasn't clear how broad any changes might be. The petition had been filed by the challengers (Missouri et al.), and argues that the panel erred in finding no First Amendment violation by the Cybersecurity and Infrastructure Security Agency and the State Department's Global Engagement Center.

It appears, though, that this was actually the result of a clerical error made by the Fifth Circuit Clerk of Court's office. Yesterday, the panel withdrew the grant of rehearing saying, among other things, that the government was "directed to file a response to the petition for rehearing by September 28, 2023, at 12:00 p.m." Presumably the panel would then consider the petition and the response, and decide whether or not to grant rehearing. (Such rehearing is rarely granted.) According to Talking Points Memo (Kate Riga),

"The order today cures a clerical error made by my staff," Clerk Lyle Cayce said in an email. "The court intended yesterday only to permit the filing of a motion for panel rehearing—but the order we entered made it appear that a rehearing was granted. That was erroneous and not in accordance with direction."

"As you know, the mandate was issued forthwith, and the parties are still within the time permitted to request rehearing," he added. "So, the order today withdrew the erroneous order and recalled the mandate, giving the court jurisdiction to consider any petition for rehearing filed by noon, September 28."