Ken White, a/k/a Popehat, joins the show to discuss the Fifth Circuit litigation about pressure from the Biden Administration on social media companies. They also delve into a case of judicial immunity and the copyright of 'the law'. Interesting topics include free speech, government influence on social media, and the impact of technical standards on industrial contracting.
The Fifth Circuit's evaluation of Missouri v. Biden provided a clearer understanding of the government's influence on social media platforms and its implications for the First Amendment rights of internet users during the COVID-19 pandemic.
The case in the Sixth Circuit, Orta v. Repp, highlights the abuse of judicial discretion when a judge accused a woman without evidence, leading to her being held in contempt of court and sentenced to jail. This raises questions about the limits of judicial immunity and the need for exceptions when judges face consequences for their actions.
Deep dives
Fifth Circuit reviews Missouri versus Biden case on First Amendment rights
The Fifth Circuit recently reviewed a case involving Missouri and Louisiana states, as well as internet users, against Joe Biden and the Department of Health and Human Services. The lawsuit focused on whether the government violated people's First Amendment rights by influencing social media platforms to moderate or ban them during the COVID-19 pandemic. The trial court initially found the government's actions to be a First Amendment violation, but the controversial decision led to partisan interpretations. However, the Fifth Circuit's thorough evaluation of the laws and evidence in a lengthy opinion provided a clearer understanding of the case, defining the government's role in arm-twisting social media platforms. The circuit's decision influenced a more objective examination of the First Amendment issues involved in the case.
Sixth Circuit case highlights judicial immunity
The case in the Sixth Circuit, titled Orta versus Rep, exposes the abuse of discretion by Judge Rep, operating his courtroom as a personal fiefdom. In this case, a woman attending a courtroom to observe a criminal proceeding for the father of her children was continuously harassed by Judge Rep, accused of being under the influence of drugs without any evidence. As the morning progressed, the judge ordered her to be drug tested, leading to a chain of events resulting in her being held in contempt of court and sentenced to ten days in jail for refusing the drug test. This case raises questions about the limits of judicial immunity, given that the judge faced consequences such as suspension from the bench and the practice of law. Although the immunity rule is important to protect judicial decisions, there should be exceptions when judges face other penalties for their actions.
DC Circuit rules in favor of public resource organization in copyright case
The American Society for testing and materials (ASTM) versus Public Resource Org case in the DC Circuit involves private organizations developing technical standards adopted as law by government entities. These organizations sued Public Resource Org for copyright violations, as it freely publishes copyrighted materials related to these technical standards, facilitating access to important industry regulations. However, the DC Circuit found that Public Resource Org's actions fell within the fair use doctrine, as they provided educational access to these copyrighted materials without any commercial motivation. This case raises questions concerning the control of copyrighted materials that become law, highlighting the need to balance protection of intellectual property rights with public access to essential legal standards.
The legal implications and ramifications of copyrighted technical standards
The case involving the American Society for testing and materials (ASTM) and Public Resource Org sheds light on the copyright issues surrounding technical standards adopted as law. As these private organizations develop and copyright these standards, the legality of freely accessing and publishing them becomes a contentious topic. This case brings attention to the need for public access to important industry regulations without financial barriers or copyright restrictions, allowing individuals and small-time lawyers to understand and comply with these technical standards. Balancing intellectual property rights with public availability becomes crucial in ensuring fair and equal access to the law.
A special Short Circuit Live in southern California with a special guest. We welcome Ken White, a/k/a Popehat to the show, along with IJ attorneys Patrick Jaicomo and Paul Avelar. Ken digs into Missouri v. Biden, the all-over-the-place litigation from the Fifth Circuit about pressure from the Biden Administration to have social media companies remove certain kinds of speech. Ken thinks the Fifth Circuit did a good job correcting some of the excesses of the district court ruling but ultimately agrees there seems to be something unconstitutional here. He also previews where this area of law might be going. We then turn to the Sixth Circuit where Patrick tells a tale of a judge who receives immunity for doing something that judges really aren’t supposed to do—jail someone without cause after they merely sat in his courtroom. And then Paul explains how you can’t copyright “the law,” and how that came up in a D.C. Circuit case involving private publishers of industry standards. Can a lawmaker co-opt J.K. Rowling’s copyrights by simply publishing her books in a statute book? Inquiring minds want to know.
PLEASE NOTE: This episode was recorded on October 1, 2023, before the Fifth Circuit issued an updated opinion in Missouri v. Biden. However, the only real change seems to have been that one agency, the Cybersecurity and Infrastructure Security Agency, was added back into the injunction.