Last Week 5th Circuit Said Gov’t Can’t Pressure Websites, This Week It Says Gov’t Mandated ‘Health’ Messages Are Perfectly Fine

It can always get dumber. And when we're talking about the 5th Circuit, you have to assume it will always get dumber. And that's what has happened now with the 5th Circuit issuing a stay on an injunction that had blocked an obviously unconstitutional law. But we'll get to those details in a moment.

Just last week we wrote about the decision in the 5th Circuit saying that the government cannot coerce websites regarding how they moderate content. We noted that this seemed to be in near total conflict with last year's 5th Circuit ruling saying that of course governments can tell websites how to moderate (the only point on which they are consistent is that it's okay when Republicans do it, and not okay when Democrats do it").

But that ruling last year was even crazier than it sounds. As you may recall, Texas passed this law, HB 20, that told social media websites how they had to moderate (or not moderate) certain content. A federal district court issued an injunction blocking the law, laying out in great detail how very, very, very obviously unconstitutional the whole thing was. It appeared that the judge in that case knew full well that the 5th Circuit was likely to muck it up and was trying to convince them not to.

Somewhat incredibly, the 5th Circuit mucked it up in spectacular fashion, overturning the injunction and reinstating the law immediately with zero explanation. Normally, when you issue a ruling stopping an injunction (or issuing one) you... explain why. But the three judge panel just issued a one-line ruling saying that the motion was granted. No explanation. This resulted in a mad dash to the Supreme Court which (perhaps surprisingly!) told the 5th Circuit that this was procedurally inane, and put the law back on hold.

Eventually, many, many, many months later, the 5th Circuit explained its reasoning in an opinion authored by Judge Andy Oldham, reinstating the law again (which was then put on hold while it was appealed to the Supreme Court, where we're still waiting to see what happens). Oldham's reasoning basically overturned a century's worth of settled" 1st Amendment law.

So, anyway, that's the history from last year. Onto this year. Earlier this year, Texas passed a law requiring both age verification and a mandatory health warning" message on all adult content websites. The Free Speech Coalition sued to stop the law going into effect (as it was scheduled to do on September 1st) and, as we reported, the court reasonably granted the injunction blocking the law, noting that it was pretty clearly a violation of the 1st Amendment for both the age verification bits and for the mandatory health warning, which forces adult websites to say that Texas Health and Human Services" has claimed that pornography leads to eating disorders, impaired brain development and an increase in demand for child exploitation even though, as the judge blocking the law noted, Texas Health and Human Service's department never found any such thing.

As the court clearly notes this is compelled speech."

Anyway, with the court rejecting it, we figured there would be some time for it to go through the usual appeals process.

But we did not count on good ol' 5th Circuit Judge Andy Oldham. Because a three judge panel that includes Oldham reinstated the law, putting an administrative stay" on the preliminary injunction that blocked the law in the first place. Once again, the ruling gives no details at all. It's two sentences this time (up from one the last time), and just effectively removes the preliminary injunction, meaning that the law is immediately in effect. The only difference from last year's similar nonsense is that the court says the appeal is expedited" to the next available oral argument panel.

5th Circuit lawyer Raffi Melkonian wrote on Bluesky that there's some procedural weirdness to all this, noting the 5th Circuit will often issue an administrative stay while considering a motion for a stay, but here it's not even yet considering the actual stay because it's saying that it will deal with it during oral arguments.

Either way, the law is now in effect and we have no idea what that means because the 5th Circuit has explained nothing.

And, again, between these two 5th Circuit rulings, a week and a half apart, we are being told by the very same court that governments cannot do anything to coerce speech on some platforms, but absolutely can compel speech on other platforms.

If that seems contradictory, the reality is that what the 5th Circuit is saying, in a truly partisan way, is that when Republicans compel speech, that's fine. It's not only fine, but the court doesn't even need to explain why it passes constitutional muster. When Democrats highlight content that could lead to harm for websites to look at and decide for themselves if they want to host it, that is the worst censorship scandal in the history of America, and the government should be barred from speaking to the companies at all.

The 5th Circuit is a joke, and its main court jester seems to be Andy Oldham.

There is no workable theory of the 1st Amendment here. There is nothing but a distorted partisan filter.