Judge Terry A. Doughty testifies before the Senate Judiciary Committee, November 1, 2017.
Ever since Ruth Bader Ginsburg died and conservatives got a 6-3 majority on the Supreme Court, Americans have become quite familiar with judicial tyranny at the highest levels of the legal system. Just last week, the Court protected homophobia in a case based on a premise that seems to have been invented wholesale, and stole $10,000 from student loan debtors (though as my colleague David Dayen explains, the Biden administration is attempting to redo the loan forgiveness with a different legal strategy).
Yet the problem of feral judges also exists further down the judicial hierarchy. Back in April, district judge Matthew Kacsmaryk, a go-to option because he’s the only judge in the Amarillo division of the Northern District of Texas and conservatives filing cases there know that he will hear them, attempted to ban abortion pills throughout the country, with a completely crackpot ruling in violation of all law and precedent. And this week, Louisiana district court judge Terry A. Doughty issued a temporary injunction prohibiting federal agencies—including the FBI, Department of Health and Human Services, the Census Bureau, the Department of Justice, the Department of Homeland Security, and many others—from even talking to social media companies with “the purpose of urging, encouraging, pressuring, or inducing in any manner the removal, deletion, suppression, or reduction of content containing protected free speech.”
This is just a temporary injunction before the full ruling, but the attached memorandum strongly suggests that Doughty is going to side with the plaintiffs and issue a permanent injunction soon. Even if his action does get overturned on appeal, this is no way to run a country.
The premise of the case is a lunatic conspiracy theory pushed by Elon Musk and others. Readers may recall that some months ago, Musk gave internal Twitter communications to handpicked writers like Matt Taibbi, Bari Weiss, and Michael Shellenberger, who concocted a narrative that the government was conspiring with Twitter’s prior management to systematically censor conservative voices and content.
The details of the “Twitter files” are complicated, but as Mike Masnick explains carefully at Techdirt, the conspiracy story is largely nonsense. Government officials occasionally contacted social media platforms to inform them about content that may have violated the platforms’ terms of service, which anyone can do. Most of the time, Twitter, along with the other platforms, left that content up. The stuff that did get deleted was, as a rule, genuinely bad—containing revenge porn, lies about election details, and most of all misinformation about the pandemic or COVID-19 vaccines. That’s really all that happened.
Judge Doughty clearly swallowed the conspiracy theory whole. “The plaintiffs are likely to succeed on the merits in establishing that the government has used its power to silence the opposition,” he wrote. The social media censorship story fit with pre-existing right-wing dogma. Conservatives from cable news anchors on down to Facebook grandpas long ago convinced themselves that every media institution is biased against them, so as to make their demands to be given special treatment more convincing. When Cat Turd 2 complains about being “silenced” by “the algorithm,” what he means is that everyone on Earth should be forced to read and enjoy his posts.
This world-historic capacity for self-pity can also be seen in Doughty’s opinion. “If the allegations made by plaintiffs are true, the present case arguably involves the most massive attack against free speech in United States’ history,” he writes. That’s right, folks. The FBI requesting that posts that lie about vaccines during the worst pandemic in a century be deleted was worse than the Palmer Raids, COINTELPRO, the McCarthy hearings, and the Pinckney gag rule.
The lunacy of the lawsuit can be judged not only by Doughty’s overheated rhetoric, but also by the plaintiffs. In addition to the attorneys general of Louisiana and Missouri, they include Jayanta Bhattacharya, Martin Kulldorff, Aaron Kheriaty, and Jill Hines, who are various flavors of anti-vaccine crackpot, and Jim Hoft, who runs the notoriously deranged Gateway Pundit blog. These are the people who are telling the federal government who it can communicate with. It’s as if Dr. Oz, Jenny McCarthy, and that guy who did the Natural Cures “They” Don’t Want You to Know About book got to tell the FDA what kinds of drugs it could approve.
Judge Doughty has been on a run in the Biden administration, blocking the vaccine mandate for health care workers and the ban on new leases for oil and gas drilling. He’s part of the reliable band of right-wing email-forwarding uncles who happen to have been given lifetime tenure on the federal bench.
But an injunction against a public policy is one thing. An injunction against entire agencies of the federal government speaking to dozens of companies in nonbinding ways is quite another.
America’s system of checks and balances is supposed to work by each branch of the government contesting for power with the others. That is not remotely how the government works today. Instead, the judiciary exercises dominion over the other two branches. Random district judges decanted out of Federalist Society cloning tanks seize personal control of giant chunks of federal policy, based on lawsuits filed by totally deranged activists, and they keep that power unless and until the rest of the creaking judiciary system can see through the appeals process. I would not be at all surprised if the Supreme Court lets this particular decision stand.
And it keeps going day after day. Just as I was finishing this article, another right-wing judge blocked an ATF rule restricting the sale of parts used to create ghost guns.
There are options to deal with this out-of-control judiciary. But as long as President Biden continues to submit to this judicial despotism—last week, he said it would be a mistake to expand the Supreme Court—right-wing judges and justices will keep pushing the envelope.
