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."

Comments

[Z Crazy]

There's still misinformation and disinformation and hate speech going around (such as denying that God exists).

And don't tell me the government could simply post the truth on its websites and media accounts. If someone loses faith in God because they heard atheism online, the damage is done.

Better to prevent hate speech than to fix the damage after the fact.

[Internet sloth]

Just relax.

[Krychek_2]

There's a wonderful joke about God calling the angels together and saying, "I've just received word that hell has frozen over." When one of the angels asked what prompted this, God responded, "Someone finally came up with a rational, coherent argument for my existence."

[Kazinski]

When prominent scientists say like Neil deGrasse Tyson endorse Intelligent Design as a theory, and Scientific American says there is a 50-50 chance that Intelligent Design correctly explains the universe, then you'd have to say "Someone finally came up with a rational, coherent argument for [God's] existence".

https://www.scientificamerican.com/article/do-we-live-in-a-simulation-chances-are-about-50-50/

[grb]

Ok, Kazinski,

Here’s my Neil deGrasse Tyson quote on Intelligent Design :

“Intelligent design is a philosophy of ignorance. It is you get to something you don’t understand, and then you stop. You say, ‘God did it,’ and you no longer progress beyond that point.”

Where’s yours? I’d like to see the specifics of this alleged endorsement….

[Kazinski]

Well what is different between “we are living in a computer simulation” and “we are living are living in a universe designed by an omnipotent intelligence”?

““Maybe that’s why we can’t travel faster than the speed of light, because if we could, we’d be able to get to another galaxy,” said Nice, the show’s co-host, prompting Tyson to gleefully interrupt. “Before they can program it,” the astrophysicist said, delighting at the thought. “So the programmer put in that limit.”

The only difference being a computer simulation is cool and edgy, whereas intelligent design is old and stodgy.

A distinction without a difference, doesn’t matter if you call him God or The Progammer.

I'm an atheist myself so maybe I'm missing more substantial differences between the two cults. But often adherents of two very similar cults will scathingly rip the other leaving someone that doesn't believe in either wondering just where they differ.

[myself]

The computer simulation thing is a fun thought experiment that emerges from the assumption that we could create a high fidelity simulation.

Intelligent design is a way to sneak creationism into public schools.

I don't know how seriously people believe the computer simulation, but the major difference is that even if you believe it's a simulation it doesn't really change anything practical about your life. It raises an interesting philosophical question about meaning if we're living in the simulation, but no one prays to the programmer or gets mad at you if you go against their wishes.

They don't even suggest that the programmer is mucking around with the simulation on a low level which is actually a fairly critical bit of intelligent design (remember, ID is creationism and the point is to convince students that a God... oh "designer" had to intercede for things to work).

So yeah, really, really, different and Tyson most definitely does not believe in ID.

[Kazinski]

Nitpicking differences, both depend on a creator programming in the basics of the universe and letting the chips fall where they may.

I’m not aware of intelligent design dogma resting on an active creator getting mad at individual decisions.

You are illustrating my point: adherents of one cult arguing inconsequential details to show how different the other pea in the pod is, and an outsider like myself scratching my head trying to discern a difference.

[myself]

Nitpicking differences, both depend on a creator programming in the basics of the universe and letting the chips fall where they may.

You're thinking of theistic evolution, not Intelligent Design.

Theistic evolution is how Christians reconcile their belief in god with science and it is fairly consistent with the "universe is a simulation" hypothesis, but from a different angle. The "universe is a simulation" people aren't trying to reconcile a belief is an all-powerful programmer with science, they're taking a somewhat dubious hypothesis (that we can make a perfect universe simulation) and extending it to its logical conclusion. It's a statistical argument where they're happy to admit we could be in the real non-sim universe, not many theists do that.

Intelligent Design is completely different. Intelligent Design really is just a scam to get Creationism into schools, it's based on the idea that evolution alone isn't sufficient to account for complex life so you need someone actively tinkering (ie, God).

I’m not aware of intelligent design dogma resting on an active creator getting mad at individual decisions.

No, because ID is fairly careful to not specifically claim a God because then it's no longer "science" and they can't teach it in schools. They just say there's evidence of some "intelligent designer" without actually saying it's the Christian god.

However, everyone who "believes" in ID is a Christian (or member of another Abrahamic religion) who believes in God and everything that comes with that.

You are illustrating my point: adherents of one cult arguing inconsequential details to show how different the other pea in the pod is, and an outsider like myself scratching my head trying to discern a difference.

Because you're ignoring the massive differences in favour of a variation of the tired old "atheists are another religion" argument.

[Noscitur a sociis]

Well what is different between “we are living in a computer simulation” and “we are living are living in a universe designed by an omnipotent intelligence”?

What are the similarities? Neither the arguments in favor of he positions (neither of which I hold, for what it’s worth) nor the implications typically drawn by the proponents seem to have much in common.

[Kazinski]

At its most fundamental, both depend on somewhat impersonal intelligent creator, and not a random universe, or an active personally interested god.

[grb]

Bonus quotes from Neil deGrasse Tyson on Intelligent Design :

"Another practice that isn’t science is embracing ignorance. Yet it’s fundamental to the philosophy of intelligent design: I don’t know what this is.… So it must be the product of a higher intelligence."

"Science is a philosophy of discovery. Intelligent design is a philosophy of ignorance."

"This present-day version of God of the gaps goes by a fresh name: “intelligent design.” …Instead, why not tally all those things whose design reflects the absence of intelligence?"

"Regarding the “intelligent design” of the human body: And what comedian configured the region between our legs—an entertainment complex built around a sewage system?"

( Re the last one : Ouch! )

[Magister]

Re the last one : Don't make Charles Darwin yell at you.

http://smbc-comics.com/comic/2013-11-08

[Krychek_2]

Kazinski, intelligent design is even worse for theists because it makes God look incompetent. Human males would be far less prone to hernia and prostate problems with only minor anatomical adjustments. Human females would be far less prone to urinary tract infections with only minor anatomical adjustments. I almost got killed by a hot appendix that I didn't need, and why do I have a tailbone if I don't have a tail?

And that's even before we get to him designing baby seals to scream in agony as their mothers watch them get torn apart by sharks.

[Kazinski]

Perhaps Cthulhu was the designer.

[iowatwo]

krychek

Homo-sapiens are a young species. Evolution is on going as the environment we live in evolves.

[Noscitur a sociis]

I’d hate to hear a joke you think is unfunny…

[Michael Ejercito]

You (inadvertently) illustrate the problem with government telling web sites to remove misinformation, disinformation, and hate speech.

There is no objective method of saying what hate speech is. Some would say the Tanakh itself is hate speech, others would say disagreeing with the Tanakh is hate speech.

There is no objective definition that would not infringe on the first Amendment.

When it comes to misinformation, disinformation, or hate speech online, governments' only ethical response is to tell the truth on its own web sites and own social media accounts.

Prevention is much worse than the response.

[wnoise]

> (inadvertently)

I think this was deliberate satire to make the point. Hard to tell though -- Poe's law.

[Michael Ejercito]

I have obserrved people believe absurd things.

[iowatwo]

Stop locking up criminals will cause crime to decrease

[MatthewSlyfield]

Depends on how you go about it.

Simply not enforcing laws doesn't reduce crime.

However, if you reduce the number of laws you necessarily get a reduction in crime.

[Nige]

If you're locking people up for minor and non-violent crimes and they come out doing worse, violent crimes, then yes, that could work as an alternative.

[Bored Lawyer]

That was my impression as well.

[M L]

Have you heard dis information?

https://twitter.com/elonmusk/status/1706676593261785178

[MatthewSlyfield]

Who gets to decide what is disinformation and what isn't?

[Sarcastr0]

Shenanigans.

[MatthewSlyfield]

https://southpark.cc.com/video-clips/x0pwbb/south-park-south-park-calls-shenanigans

[The Margrave of Azilia]

Psych!

[John F. Carr]

The plaintiffs must feel like high school students who got a college acceptance letter by mistake.

[Jon S]

No. Pretty sure the plaintiffs know exactly what’s going on and that they will get what they want but these judges are just jumping through correct procedural hoops rather than ignoring them completely as they initially did.

[Jon S]

Cool story. I think the panel realized how unprecedented it was to grant rehearing without even asking for a response and is covering its tracks. No way that order gets issued by the clerk’s office without it being run by 3 Judges’ chambers and hard to believe all 3 chambers and their law clerks were asleep at the wheel. At least that was the practice in CA9 when I clerked.

[John F. Carr]

I read about a bench trial in my area during which the judge mistakenly announced a guilty verdict at the close of the prosecution's case.

[Jon S]

That is interesting but this is a very different situation for at least three obvious reasons (1) One judge v. three - takes all three to be asleep at the wheel rather than just one having a brain fart. (2) These judges have a staff of (generally) four very qualified law clerks each - unlikely that a trial judge in some rando jurisdiction has that. Even federal district judges have two very qualified law clerks usually. (3) This was not some off the cuff thing that was just said orally. A written order was circulated to the Judges by the clerk's office (unless things are really done differently/recklessly in CA5 - and although I clerked in CA9, we did sit on a panel in 5th Circuit as visiting Judge so I don't remember clerks just issuing orders like this without circulating to chambers).

So it's not comparable.

[loki13]

Just another day at the Fifth Circuit!

Nothing to see here everyone. Beside, they'll do something even worse within the week. Or, heck, maybe just try to make people forget about that crazy ruling from last week.

Ha! You don't even know which crazy ruling I'm talking about, do you?

[Jason Cavanaugh]

How about within the same day?

https://www.techdirt.com/2023/09/27/5th-circuit-does-it-again-puts-yet-another-law-already-deemed-unconstitutional-into-effect-with-no-explanation/

[M L]

Where in the Constitution does it say that the government can’t run government schools and voters get no say, only the bureaucrats do?

[Magister]

Voters vote for elected officials, like school boards, to whom the bureaucrats answer. Governments usually do run government schools, which is why they are called that. It's not clear that HB-900 would empower voters; it requires publishers of school books to rate them so they can be excluded from schools, presumably by bureaucrats. If you're thinking of other laws that allow a single complaint to eject a book from a school library, that's more veto power than voter power.

[M L]

“Voters vote for elected officials, like school boards, to whom the bureaucrats answer.”

Right, that’s how it’s supposed to work. But then a wild judge appears and says that the bureaucrat doesn’t have to answer, and gets to make the decisions on the content being provided to kids in school.

“It’s not clear that HB-900 would empower voters; it requires publishers of school books to rate them so they can be excluded from schools, presumably by bureaucrats. If you’re thinking of other laws that allow a single complaint to eject a book from a school library, that’s more veto power than voter power.”

I’m not thinking of any particular policy. It seems to me, State legislatures are free to make choices about what is taught in government schools or offered in their libraries, or about the procedures for making those selections – whether those choices are good, bad, ugly, etc. An unelected federal judge doesn’t get to step in and substitute those legislative decisions with their own judgments or say that a bureaucrat can do so. Personally, I think it would be better to leave these decisions to the local school board, but that is generally not the system we currently have.

[Magister]

The judge steps in and enforces the constitution; bureaucrats and voters get no say in the constitution (beyond amending it). Judges are either appointed by elected officials, or are themselves elected, so the voters have a say in those too, however indirectly.

[M L]

Which brings us back to my question, where in the Constitution does it say State legislatures (or a local school board for that matter) do not get to decide the content of government schooling in that state, and instead some bureaucrat is somehow vested with autonomy over that decision?

[Magister]

As I explained, the bureaucrats answer to elected officials. I can't even tell if you agree with the HB-900 law or not.

[M L]

I can't tell which part of the Constitution you are trying to refer to. Please cite article or amendment, section, and clause, tyia.

[Magister]

To simplify a lot:

Article I (specifically sections 2 and 3):
The House has the power of impeachment and the Senate to try impeachments (and both have the power to expel their own members), so everybody in the federal government answers to Congress if they are sufficiently united in resolve.
The House is chosen by the people of the various states.
The Senate is chosen by the legislatures of the various states.

Article IV (section 4):
Each state must have a Republican Form of Government, so the state legislatures answer to the people of that state, and everybody else in the state government must answer to the legislature if they are sufficiently united in resolve.

So everybody in government (federal or state) ultimately answers to the voters.

You should clarify your complaint about the ruling being discussed or the law that it's about, although I have little hope that will happen.

[M L]

Sorry, those parts of the Constitution do not say that States don't get to decide what goes in public school libraries.

My understanding is that HB-900 is a law passed by the Texas legislature that provides rules regarding the content of public school libraries. I fail to see where the Constitution provides that States (or school boards, for that matter) can't do that or that their ability to do so is limited in some way. If the Constitution does not so provide, then the specific decisions that the Texas legislature is making in HB-900 regarding the content of public school libraries are not Constitutionally relevant.

If you are preferring to sidestep my question and either play semantics or focus on the issue of whether "voters get a say," that's fine, as long as we are clear that my question was about state legislative powers being circumscribed in the federal Constitution.

[Magister]

I was only addressing the question of whether bureaucrats ultimately answer to the voters, which you seem not to understand.

The problem with HB-900 is violating the First Amendment, which does block the state legislatures from this particular attempt at rules regarding the contents of school libraries. Go read the ruling that granted an injunction if you still don't get it.
https://storage.courtlistener.com/recap/gov.uscourts.txwd.1172749358/gov.uscourts.txwd.1172749358.43.0.pdf

[Bob from Ohio]

A routine administrative stay is now a "crazy ruling".

[DRM]

Sigh.

There is nothing at all unconstitutional or even remotely improper about the State of Texas establishing standards for what library materials organs of the State of Texas (public school districts and publicly-funded charter schools) can acquire and, specifically in order to enforce those standards, what vendors those organs of the State of Texas may acquire library materials from.

(If you're having trouble figuring this out, imagine if it was discovered a public school district in New York was filling its library with pro-Nazi books. You really want to argue that the New York State Legislature couldn't establish safeguards to stop the spending of tax money in that way? C'mon.)

The idea that this is remotely equivalent to Bantam Books (where the state of Rhode Island was regulating sales of books to the general public) or Southeastern Promotions (where a municipality refused to rent out its theater based on the content of a performance that hadn't been given) is . . . well, I get why Alan Albright might say so, given his record. He's an outright dumbass.

[Sarcastr0]

I believe it was this very Conspiracy that noted there were some precedents to the effect that the 1A included some protections of academic freedom. And certainly academic freedom is not nothing in and of itself.
So 'nothing at all unconstitutional or remotely improper' is overselling things by a long shot.

Your hypo assumes schools are utterly without any external controls which is utterly untrue.

[DRM]

Well, it sure looks to me like you're advertising that you, in fact, have no idea what you're talking about. But, hey, maybe I'm missing something.

So, go ahead. Explain exactly how the right of college professors to engage in free inquiry and teaching in their academic field has even the slightest bearing on a state deciding what sorts of materials are available to students under what conditions in the state's public K-12 school libraries.

[Sarcastr0]

“The Supreme Court has established that academic freedom is “a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom.” Buchanan v. Alexander, 919 F.3d 847, 852 (5th Cir. 2019) (quoting Keyishian v. Bd. of Regents, 385 U.S.589, 603 (1967)). However, even this protection has limits, and whether an employee’s speech addresses a matter of public concern must be determined by the content, form, and context of a given statement, as revealed by the whole record. Id. at 853. Speech involves a matter of public concern when it involves an issue of social, political, or other interest to a community. Id”

Via https://reason.com/volokh/2023/06/12/no-first-amendment-academic-freedom-right-to-give-quizzes-in-public-university-class/

[DRM]

Well. You have thoroughly proven that you do not merely have no idea what you're talking about, but further that you have serious deficiencies in reading comprehension.

My challenge, after all, was not 'quote a Volokh Conspiracy post that quotes a decision that quotes a Warren Court opinion'. My challenge was for you to "explain exactly how" academic freedom -- which is "the right of college professors to engage in free inquiry and teaching in their academic field" -- had anything at all to do with K-12 library materials.

If you had read and understood the phrase "explain exactly how", you would have noticed that your reply was completely non-responsive. Asked to explain how academic freedom "has even the slightest bearing on a state deciding what sorts of materials are available to students under what conditions in the state’s public K-12 school libraries", you simply proved that the Supreme Court once mentioned academic freedom.

I mean, seriously. "Academic freedom" is as much a non sequitur in reference to this Texas law as "freedom of the press" would be in a discussion of a law regulating the manufacturing of olive oil. You have to know what the words mean in context before you can hope to do anything but demonstrate that you're a fool.

[MatthewSlyfield]

I don't think academic freedom applies to K-12 schools.

[DRM]

Not that K-12 teachers' unions haven't tried to extend it. But rules about 1) under what conditions vendors may sell to public K-12 libraries, and 2) what materials public K-12 students may access from those libraries without parental permission? They have as much to do with "academic freedom" as the "right to keep and bear arms" has to do with a wrongful amputation malpractice suit.

[Kazinski]

Its like you don't know how courts work:
"And that’s what has happened now with the 5th Circuit issuing a stay on an injunction that had blocked an obviously unconstitutional law."

Did you complain when the same thing happened last week when California's 10 round magazine was struck down as obviously unconstitutional, yet the very judge that struck the law stayed his own injunction to allow the government to appeal.

Save your outrage for real issues.

[Jason Cavanaugh]

"The only issues that matter are the ones I care about."

Nice, Kaz.

No, I hadn't heard about the California situation. Yes, that is also wrong.

See how easy that is?

[Kazinski]

No it’s not wrong, it’s standard procedure for federal courts. There needs to be both a clear showing of a unconstitutionality and irreversible harm to instantly enjoin a law with no opportunity to appeal.

That is the point. I’m fine with the 10 day delay in the magazine case because I know to expect it.

I’m not criticizing it all, because it’s pretty standard stuff. Unless of course the plaintiff can show irreversible harm.

[Jon S]

The good professor understates and misses the point when he says panel rehearings are rarely granted. True but it does happen. What is truly unprecedented is granting rehearing (panel or en banc) without asking for a response from other side first. In fact, I don't think it has ever happened in recent memory and if it has it would be in a death case or some other seriously pressing thing.

[Dan Schiavetta]

Talking Points Memo has always been a good source. I've been reading it for 25 years.

[Joe_dallas]

The political party that believes men can become pregnant wants to control misinformation in the internet

[Jason Cavanaugh]

Don't you have anything better to do than come here and boldly proclaim your partisan stupidity?

[Joe_dallas]

My apologies for demostrating my partisan take vs your more frequent partisan take.

Though the border point is the level of activity of government actors trying to prohibit factually correct information which contridicted the misinformation promoted by those government actors.

[Jason Cavanaugh]

You must also have some deep-rooted reading comprehension issues, as I've stated numerous times that I've never been, and never will be affiliated with any political party.

I've criticized idiots on the left and the right. You have routinely and repeatedly demonstrated that you are the latter.

[Kazinski]

Great, you self identify as an idiot in the middle, that's nice.

[Joe_dallas]

Jason Cavanaugh 36 mins ago
Flag Comment Mute User
"You must also have some deep-rooted reading comprehension issues, as I’ve stated numerous times that I’ve never been, and never will be affiliated with any political party."

Your history of commentary says otherwise
You may not be a member and/or affiliated with a political party, yet your comments quite definity show strong liberal political partisan bias.

[Jason Cavanaugh]

When Republicans stop doing crimes and proving that you are unable to govern, I'll stop criticizing.

When you stop the incessant book-banning and transphobic crusades, I'll stop criticizing.

Hell, I'll even tell you outright that I think this transgender crap is, generally speaking, a fad of some kind and not anything to be encouraged, but I don't need to go out of my way to pile hate upon them, and try to make their lives more miserable like you people do. You seem to think that because I don't wear the khaki pants and white polo t-shirts, that I can't possibly have conservative values. In fact, I'm just not as fucking crazy and hateful as you.

Your accusations of my liberal bias is a consequence of the behavior of the GOP of late, the number of articles written about their piss-poor behavior, and the sheer stupidity of your fellow commenters on these issues where not a single one of you can ever find a spine and object to anything GOP-related.

Perhaps when Trump is either imprisoned or dead, you people can figure out what it means to have principles again. Right now, Democrats just don't do crazy, sycophantic, victim-complex bullshit like you guys. Blame yourselves for falling so far from any kind of principled governance, or basic morality.

[Sarcastr0]

Any thoughts on the topic at hand, Joe?