(Photo
by
Mario
Tama/Getty
Images)
On
June
26,
the
Supreme
Court
issued
a
ruling
in
Murthy
v.
Missouri,
AKA
“the
jawboning
case.”
It
was
a
withering
smackdown
of
the
Fifth
Circuit,
authored
by
Justice
Barrett
and
containing
a
mini-lecture
on
STANDING:
HOW
DOES
IT
GO.
The
case
was
an
appeal
from
an
order
by
District
Judge
Terry
Doughty,
who
found
that
Louisiana,
Missouri,
and
a
handful
of
weirdos
plucked
from
barstools
on
Tattooine,
were
entitled
to
sue
the
government
for
suggesting
to
Twitter
that
their
opinions
were
dangerous
and
bad.
The
Fifth
Circuit
agreed
and
more
or
less
enjoined
the
government
from
pointing
out
that
anything
online
is
dangerous
and
bad.
“To
establish
standing,
the
plaintiffs
must
demonstrate
a
substantial
risk
that,
in
the
near
future,
they
will
suffer
an
injury
that
is
traceable
to
a
Government
defendant
and
redressable
by
the
injunction
they
seek,”
the
six
majority
justices
wrote,
as
if
speaking
to
high
school
students
on
a
field
trip
to
the
nation’s
capital.
“Because
no
plaintiff
has
carried
that
burden,
none
has
standing
to
seek
a
preliminary
injunction.”
Naturally
the
three
Sith
Lords
on
the
Court
dissented.
Nothing
has
yet
happened
in
that
case,
because
the
mandate
has
not
issued.
But
there
is
movement
in
a
related
case
thanks
to
Judge
Doughty,
whose
understanding
of
civil
procedure
is
matched
only
by
his
stellar
drafting
skills.
And
because
that
case
involves
Robert
Kennedy
Jr.,
who
is
currently
LARPing
as
a
presidential
candidate,
you
know
it’s
going
to
be
bonkers.
Kennedy
is
the
“chairman
on
leave”
of
an
antivaxx
coffee
klatsch
known
as
Children’s
Health
Defense
(CHD).
In
March
of
2023,
Kennedy
and
CHD
sued
half
the
Biden
administration,
including
the
Department
of
the
Treasury
and
the
Election
Assistance
Commission,
for
saying
mean
stuff
about
them
during
the
COVID
pandemic.
Kennedy,
who
is
represented
by
Tiger
Daddy
Jed
Rubenfeld,
requested
injunctive
relief
and
class
certification
on
behalf
of
“all
persons
in
the
United
States
who
have
consumed
news
related
to
COVID-19
or
U.S.
Elections
on
Facebook,
Twitter,
or
YouTube
at
any
time
from
January
2020
to
the
present.”
Naturally,
the
case
was
filed
in
the
Western
District
of
Louisiana.
Kennedy was
consolidated
with Murthy
(previously
captioned
Missouri
v.
Biden),
but
the
Kennedy
plaintiffs
didn’t
make
the
certiorari
cut
at
SCOTUS.
On
Valentines
Day,
Judge
Doughty
scribbled
a
little
love
note
to
them
anyway.
He
issued
a
preliminary
injunction
barring
much
of
the
Biden
administration
from
pointing
out
misinformation
on
social
media
platforms,
although
he
stayed
the
order
with
this
language:
IT
IS
FURTHER
ORDERED
that
in
light
of
the
stay
issued
by
the
Supreme
Court
of
the
United
States
in
Missouri
v.
Biden,
this
order
is
STAYED
for
ten
(10)
days
after
the
Supreme
Court
sends
down
a
ruling
in
Missouri
v.
Biden.
On
June
27th,
the
government
defendants
filed
a
notice
of
the Murthy
holding,
politely
coughing
that
they
weren’t
quite
clear
what
the
court
meant
by
“sends
down,”
but
noting
that
“Under
Supreme
Court
Rule
45.3,
the
Supreme
Court
‘will
send’
its
judgment
to
the
lower
court
’32
days
after
entry
of
the
judgment,
unless
the
Court
or
a
Justice
shortens
or
extends
the
time,
or
unless
the
parties
stipulate
that
it
be
issued
sooner.’”
That
would
put
the
“send
down”
date
on
July
29,
meaning
that
the
stay
would
be
in
effect
through
August
9.
The
DOJ
expressed
its
intention
to
file
a
motion
for
indicative
ruling,
on
the
theory
that
Kennedy’s
theory
of
harm
and
standing
was
no
better
than
the Murthy
plaintiffs’,
after
which
they
would
move
to
vacate
the
injunction
in
whichever
fashion
the
court
found
most
congenial.
Kennedy
responded
that
he
understood Murthy
to
be
“sen[t]
down”
upon
release
of
the
opinion,
meaning
the
stay
would
automatically
go
into
effect
on
July
7.
The
government
then
moved
to
clarify
the
injunctive
order,
tactfully
noting
that
the
Murthy
holding
would
not
obviously
lead
to
the
conclusion
that
Kennedy’s
theory
of
standing
should
carry
the
day,
and
moving
for
expedited
briefing
that
would
allow
the
defendants
time
to
appeal
the
proposed
stay
to
the
Fifth
Circuit.
At
which
point,
Kennedy
immediately
pivoted
to
claiming
that
Judge
Doughty
lacked
standing
to
adjudicate
any
claims
because
the
case
was
already
on
appeal
to
the
Fifth
Circuit.
“Defendants
are
asking
the
wrong
court
for
the
wrong
relief,”
he
huffed,
insisting
that
it
was
quite
clear
that
the
February
injunction
gave
them
a
golden
ticket,
redeemable whatever
the
outcome
of
Murthy,
and
pointing
to
language
from
Judge
Doughty’s
order
anticipating
the
date
when
SCOTUS
would
“hand
down”
its
opinion.
“The
term
‘handed
down’
has
a
clear,
long-established
meaning
in
American
jurisprudence:
it
refers
to
the
date
on
which
a
court
decides
a
case
and
files
its
decision,”
they
opined,
citing
a
single,
long-forgotten
1954
Supreme
Court
decision
on
collateral
estoppel.
“If
Defendants
genuinely
found
the
Court’s
stay
ruling
unclear,
or
if
they
viewed
eleven
days
as
insufficient,
they
had
five
months
to
ask
this
Court
or
the
Fifth
Circuit
for
relief,”
Kennedy
continued.
“Instead,
Defendants
sat
on
their
hands,
and
now,
five
days
after
Murthy
was
handed
down,
Defendants
move
for
‘clarification’
of
a
ruling
that
is
already
clear,
and
for
the
further
stay
of
an
injunction
already
on
appeal.”
Kennedy
insisted
that
he
has
a
much
better
claim
to
standing
than
the
Murthy
plaintiffs,
and
so
should
get
his
injunction
despite
their
stinging
loss:
The
bottom
line
is
that
the
Kennedy
Plaintiffs
have
much
stronger
standing
than
did
the
Missouri
plaintiffs,
and
Mr.
Kennedy
in
particular,
as
a
candidate
for
President
who
is
still
being
brutally
censored
on
major
social
media
platforms
(just
as
this
Court
predicted)
,
urgently
requires
and
is
entitled
to
vindication
of
his
rights[.]
BRUTALLY
CENSORED!
By
the
major
social
media
platforms!
Who
are
…
not
the
defendants
in
this
case.
Judge
Doughty
has
ordered
briefing
more
or
less
on
the
government’s
requested
timeline.
That
should
give
him
a
few
extra
days
to
invent
a
new,
batshit
theory
of
standing
before
he
has
to
send
or
hand
down
a
ruling.
Missouri
v.
Biden
[Trial
Docket
via
Court
Listener]
Kennedy
v.
Biden
[Trial
Docket
via
Court
Listener]
Liz
Dye lives
in
Baltimore
where
she
produces
the
Law
and
Chaos substack and podcast.