Supremes Hear From US Agencies -- On How Befuddled The Trial Court, And The Fifth Cir. Are, On What Private Platforms "May Be... Required To Carry".

In truth, the whole of this discussion has been turned on its head, by the largely clue-free USDC Judge Doughty in Monroe, Louisiana. What he claims is government "censoring" -- is in fact, by his opinion -- a rule that would purport to order private social media platforms (on pain of contempt) to carry false information (including life threateningly false health information), defamatory material, and racial, gender and ethnic invective that has no place in a private living room. And make no mistake -- these are private living rooms. . . no one must tolerate miscreants in their virtual homes.

But, even taking it the way he framed it -- the federal government agencies will prevail. They have every right to lobby and encourage private actors to avoid public health disasters (among other things). And so, the feds have filed a supplemental memorandum before the Supremes here at week's end, to make this plain(er). Here are the the whole nine-well argued pages, and a bit:

. . .In short, the amended decision relies on the same flawed conception of the state-action doctrine to extend injunctive relief to another set of government defendants. In extending the injunction, the decision vividly illustrates the expansive and malleable nature of the Fifth Circuit’s novel test for state action, underscoring both the court’s errors on the merits and the grave harms imposed by an injunction requiring thousands of government employees to adhere to the Fifth Circuit’s standard on pain of contempt. . . .

Indeed, the reinstatement of the injunction with respect to the CISA defendants only further illustrates the Fifth Circuit’s legal errors. The Fifth Circuit relied on its view that CISA supposedly “‘facilitat[ed]’” the “FBI’s interactions with the social-media platforms.” Revised Op. 59. But the court’s rationale with respect to the FBI was that any communication from the FBI is inherently coercive because the FBI is a powerful law enforcement agency, and that the platforms’ acceptance of an FBI recommendation was sufficient to establish “significant encouragement” under the lax “entanglement” standard. See id. at 55-57. The government has explained why those theories lack merit. . . .

And because the FBI’s own conduct did not transform the platforms’ content-moderation decisions into state action, the CISA defendants cannot have engaged in state action merely by facilitating the FBI’s efforts -- especially given that CISA itself does not exercise any law-enforcement authority over the platforms. . . .

Onward, smiling -- into the Saturday morning's Fall sunshine. . . with a crisp breeze afloat.

नमस्ते