Social Media Court Ruling Shows Power of Judge Shopping

A Trump-appointed judge Republican states have sought out time and again when challenging the Biden administration gave conservatives another win on Independence Day, this time in a major fight over free speech online.

Judge Terry Doughty, chief judge of the US District Court for the Western District of Louisiana, blocked a large swath of the government from communicating with social media platforms to urge or pressure them to remove certain content in a ruling political science and legal scholars said demonstrates the power of judge shopping.

The decision is the latest example of how Doughty has handled Republican-led multistate lawsuits challenging Biden administration policies. In the past he’s ordered the White House to restart oil and gas leasing on federal lands, blocked Biden’s vaccine mandate for health-care workers, and stopped Head Start teachers in Louisiana and 23 other states from having to get the Covid-19 vaccine.

“The opinion and injunction show the power of finding a sympathetic judge,” Evelyn Douek, an assistant professor at Stanford Law School and expert in the private and public regulation of online speech, said in an email.

Republican attorneys general stumbled upon Doughty in 2021 in challenging a moratorium on oil and gas leasing and then sought him out specifically by shopping cases to him in the Monroe Division of the Western District. Judge shopping is a legal strategy where litigants try to find the best path to victory in the court system. Appeals from the Western District go to the reliably conservative US Court of Appeals for the Fifth Circuit and then on to the US Supreme Court.

But the last Supreme Court term proved there’s no guarantee rulings coming from one reliably conservative court up for review by another will be upheld. Only two out of nine rulings from the Fifth Circuit—which hears cases from Texas, Louisiana, and Mississippi—were affirmed by the justices this term.

Fifth Circuit as ‘Petri Dish’

Despite the low win rate at the high court, the Fifth Circuit is still a place where Republican attorneys general have been sharpening their arguments, said Paul Nolette, director of the Les Aspin Center for Government at Marquette University.

“The Fifth Circuit has essentially become the Petri dish of conservative legal arguments in recent years and even though the Supreme Court is not adopting it now, it’s pushing the envelope where more of these arguments will enter the mainstream,” he said.

Justice Brett Kavanaugh highlighted that boldness in rejecting Texas and Louisiana’s attempt to stop the Biden administration from shifting its immigration enforcement priorities in a case out of the Fifth Circuit that he called “unusual.”

“They want a federal court to order the Executive Branch to alter its arrest policies so as to make more arrests,” he said. “Federal courts have not traditionally entertained that kind of lawsuit; indeed, the States cite no precedent for a lawsuit like this.”

Judge Shopping

In the case Doughty ruled on July 4, Nolette said Missouri and Louisiana were making some innovative claims that other federal judges would have been skeptical about.

“This, seems to me, shows you the power of judge shopping,” he said.

The Missouri and Louisiana attorneys general argued that in an attempt to censor alleged disinformation, a long list of federal agencies pressured, colluded, or coerced social-media platforms to suppress speakers, viewpoints, and content related to Covid-19 and the 2020 election that the administration doesn’t like.

The US government “seems to have assumed a role similar to an Orwellian ‘Ministry of Truth’” during the Covid-19 pandemic, Doughty said in his preliminary injunction, which applies to administration officials and agencies—including the Centers for Disease Control & Prevention and the FBI.

“Although this case is still relatively young, and at this stage the Court is only examining it in terms of Plaintiffs’ likelihood of success on the merits, the evidence produced thus far depicts an almost dystopian scenario,” he said in the 155-page decision.

Louisiana Attorney General Jeff Landry (R) on Twitter called the ruling “a big step forward in the continued fight to prohibit our government from unconstitutional censorship.”

When the case was first filed on May 5, 2022, Doughty was assigned to hear 90% of the civil cases filed in the Monroe division under the court’s case assignment orders. He is now assigned to hear 70% of the civil cases filed there.

Douek said Doughty’s decision “doesn’t meaningfully engage with the precedent or difficult issues here and instead adopts an over-simplified version of the narrative that conservative voices are being silenced online.”

Injunction Questioned

The Senate in 2018 unanimously confirmed Doughty, a former state court judge. He has since had an outsized impact on Biden administration policies from his chambers in downtown Monroe, La., a city of less than 50,000 people best known for its proximity to the “Duck Dynasty” reality TV show family.

“I’m not political, I don’t feel like,” Doughty told Bloomberg Law during a 2022 interview in his chambers. “I know it may be perceived that way, but I really honestly try not to be. I’m not deciding these cases because I’m wanting to get the Biden administration.”

Shan Wu, a former federal prosecutor who served as counsel to Attorney General Janet Reno during the Clinton administration, agreed the social media case was shopped to Doughty but he doesn’t fault litigants for using that legal strategy.

“While I agree it’s judge shopping, that to me isn’t the real problem here—it’s the judge,” he said.

Wu questioned why Doughty would issue a preliminary injunction that’s typically reserved for emergency situations.

“Here if he’s talking about the Biden administration was ‘Orwellian’ in how it handled Covid, well that’s in the past. What is it that you’re talking about now?” he asked. “What are you trying to enjoin them from doing?”

The case is Missouri v. Biden, W.D. La., No. 22-cv-01213, preliminary injunction 7/4/23.