Schrödinger’s Cat, Jurisdiction, and Missouri v. Biden
Missouri v. Biden was one of the premier free speech cases at the Supreme Court last term. The Supreme Court dissolved the injunction against various Government agencies from silencing Americans with which it disagreed on such things as forced vaccination, the efficacy of vaccines, whether Hunter Biden’s laptop left in a repair shop was actually clever Russian disinformation and whether Covid-19 was created in a lab. The Court never reached the merits of the censorship claim based upon widespread government suppression of speech that had shocked the lower courts in its scope.
Instead, the Court stated that the parties had not demonstrated “standing” to maintain a preliminary injunction because none had shown the silencing they suffered was due to the Government censorship rather than say, Mark Zuckerberg waking up one morning with a deep need to protect Hunter Biden on his platform. The parties then briefed what was to be done.
The Government, consistent with its view that under no circumstances should it ever be held accountable for throwing millions of Americans off of “the modern public square,” stated that the Supreme Court’s decision ended the case. The Plaintiffs disagreed and argued that Justice Barrett’s opinion created a road map for what was required to maintain standing for injunctions and that they should be granted more discovery.
The district court, here in the person of Judge Terry A. Doughty has now ruled. Missouri v. Biden, No. 3:22-cv-01213, slip op. (E.D. LA., Nov. 8, 2024). The Court noted that there were two different standards for standing: The standing to simply state a claim or cause of action and the standing to actually enjoin the accused perpetrator during the course of proceeding. The Court called this problem of being caught between two standards “judicial purgatory. Id. at 2.
The reader may be familiar with Schrödinger’s Cat–the thought experiment to explain quantum physics quality of superposition. A quantum particle can be in one of two states and the observer cannot tell which it is until it is measured or “looked” at. The cat could be alive or dead at any time! Only one way to find out, measure it and look in the box. Judge Doughty is obviously in the legal equivalent of superposition on the question of standing stating “So, what is a district court to do when jurisdiction is neither certainly existent nor certainly non-existent?” Id. at 3. Well, the same thing you had to do with Schrödinger’s Cat: Look in the box.
The Plaintiffs had noted the existence of evidence that demonstrated the social media companies had not censored them of their own volition. The Court specifically mentioned Mark Zuckerberg’s remarks found by Congress of why Facebook had censored some messages and other employees noting the lab-leak theory had been deleted at the Government’s request. Id. at 4. The Court noted that the recent election may change who controls the agencies, but he can’t make decisions based on that. Id. at 6.
The Plaintiffs will be able to find out from the Government-the only one with the information—what they did to silence them. That is all to the good. It is also a great feather in the cap of my colleague Jenin Younes who took the laboring oar on drafting Plaintiffs’ briefs.
November 12, 2024