This is one of those times. Technically, the Fifth Cir. panel sided with Judge Doughty's view -- but gutted his orders.
I confess -- I did not remotely see that coming. Here it all is, and the very best part of it (starting at page 66 onward) -- for those of us who still believe in democracy, and private associations' right to exclude certain members' views:
. . .The preliminary injunction here is both vague and broader than necessary to remedy the Plaintiffs’ injuries, as shown at this preliminary juncture. As an initial matter, it is axiomatic that an injunction is overbroad if it enjoins a defendant from engaging in legal conduct. Nine of the preliminary injunction’s ten prohibitions risk doing just that. Moreover, many of the provisions are duplicative of each other and thus unnecessary.
Prohibitions one, two, three, four, five, and seven prohibit the officials from engaging in, essentially, any action “for the purpose of urging, encouraging, pressuring, or inducing” content moderation. But “urging, encouraging, pressuring” or even “inducing” action does not violate the Constitution unless and until such conduct crosses the line into coercion or significant encouragement. Compare Walker, 576 U.S. at 208 (“[A]s a general matter, when the government speaks it is entitled to promote a program, to espouse a policy, or to take a position.”), Finley, 524 U.S. at 598 (Scalia, J., concurring in judgment) (“It is the very business of government to favor and disfavor points of view . . . .”), and Vullo, 49 F.4th at 717 (holding statements “encouraging” companies to evaluate risk of doing business with the plaintiff did not violate the Constitution where the statements did not “intimate that some form of punishment or adverse regulatory action would follow the failure to accede to the request”), with Blum, 457 U.S. at 1004, and O’Handley, 62 F.4th at 1158 (“In deciding whether the government may urge a private party to remove (or refrain from engaging in) protected speech, we have drawn a sharp distinction between attempts to convince and attempts to coerce.”). These provisions also tend to overlap with each other, barring various actions that may cross the line into coercion. There is no need to try to spell out every activity that the government could possibly engage in that may run afoul of the Plaintiffs’ First Amendment rights as long the unlawful conduct is prohibited.
The eighth, ninth, and tenth provisions likewise may be unnecessary to ensure Plaintiffs’ relief. A government actor generally does not violate the First Amendment by simply “following up with social-media companies” about content-moderation, “requesting content reports from social-media companies” concerning their content-moderation, or asking social media companies to “Be on The Lookout” for certain posts. Plaintiffs have not carried their burden to show that these activities must be enjoined to afford Plaintiffs full relief.
These provisions are vague as well. There would be no way for a federal official to know exactly when his or her actions cross the line from permissibly communicating with a social-media company to impermissibly “urging, encouraging, pressuring, or inducing” them “in any way.” See Scott, 826 F.3d at 209, 213 (“[a]n injunction should not contain broad generalities”); Islander East, 1998 WL 307564, at *4 (finding injunction against “interfering in any way” too vague). Nor does the injunction define “Be on The Lookout” or “BOLO.”
That, too, renders it vague. See Louisiana v. Biden, 45 F.4th at 846 (holding injunction prohibiting the federal government from “implementing the Pause of new oil and natural gas leases on public lands or in offshore waters as set forth in [the challenged Executive Order]” was vague because the injunction did not define the term “Pause” and the parties had each proffered different yet reasonable interpretations of the Pause’s breadth). . . . We therefore VACATE prohibitions one, two, three, four, five, seven, eight, nine, and ten of the injunction. . . .
So -- as I say -- it is, in may ways, a gift. Looking objectively at the trial court's injunctive order, as construed tonight by the Fifth Circuit, none of the plaintiffs can prove any violation, at any level of government, until well-after the Supremes weigh in (and they are equally likely to simply toss Doughty's work -- even as trimmed by the Fifth -- as a completely incoherent bowl of spaghetti). Only one of the ten injunctive matters survived tonight, No. Six, on "coercion" -- for which there is no proof such a thing ever occurred.
So, now it is on to the Supremes, for certain. That much was never going to be a surprise. This is up to the nine. Grin.
नमस्ते
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