Another Jawboning Case Fails in the 9th Circuit (But a TAFS Judge Doesn’t Like the Biden Administration)–Rogalinksi v. Meta

November 18, 2023 · by · in Content Regulation

[I’m far behind in my blogging queue, especially with respect to the social media addiction rulings.]

I previously summarized this case:

Rogalinski made several posts about COVID. Facebook added “missing context” labels to two of them and removed another one. Rogalinski claims that Facebook “censored” him on behalf of the government, so he tries a standard jawboning lawsuit. He gets the same outcome as all the rest.

The Ninth Circuit easily rejects Rogalinski’s appeal in an non-precedential memo opinion. The panel says “his allegations do not support a plausible inference that the government coerced Meta” because the alleged jawboning statements (by Jen Psaki) lacked any threats or incentives. Furthermore, Rogalinski didn’t show that any government takedown requests targeted his content specifically. Case dismissed.

The opinion should have stopped there, but it didn’t. A TAFS judge, Judge Nelson, wrote a concurrence calling Rogalinski’s allegations “troubling” and saying the “White House’s coercive actions show hostility to our country’s commitment to free expression and the free exchange of ideas.” [TAFS = Trump-appointed Federalist Society judge.] Judge Nelson says he would have voted the other way if Rogalinski pleaded the facts from the Missouri v. Biden ruling.

Having shifted into hypothetical considerations, Judge Nelson then blogs some musings:

the pattern of alleged behavior by our country’s leadership is nonetheless troubling. Our country’s democratic traditions demand a robust marketplace of ideas where we can exchange diverse, contrasting, and even controversial opinions. A coordinated effort between private and government actors to censor ideas, no matter how contentious or offensive those ideas may be, offends the First Amendment. By limiting the ability of the government to silence unpopular ideas, the First Amendment places its trust in society’s common wisdom. The people, not the government, bear the responsibility to discern the truth. A free and open marketplace of ideas can create complex challenges of discerning truth, but such complexity does not justify the suppression of speech.

[I agree with some of the literal words in this passage–government censorship is terrible and the First Amendment is really important. But a legal opinion is an inappropriate place to be reiterating your fealty to the Constitution when no one asked. Furthermore, distinguishing between censorial jawboning and ordinary pro-social dialogues between the public and private section is quite tricky, and it deserves better and more nuanced treatment than a sloganeering concurrence to a memo disposition].

Given that these poetic observations have nothing to do with Rogalinski’s case, who is Judge Nelson’s intended audience? Is he hoping to get cited in the Murthy v. Missouri appeal? Is he auditioning for possible future Pres. Trump to appoint him to the Supreme Court? Is he angling (like some other appellate judges, apparently) to become a MAGA celebrity? Is he trying to persuade his Ninth Circuit colleagues for future rulings? The short-on-substance concurrence is bizarre and, as unfortunately typical for TAFS judges, bears little resemblance to the rule of law where judges only opine on the facts being litigated before the court.

I also wonder if Judge Nelson would equally and unilaterally condemn any jawboning done by Republicans, of which there are countless examples. In particular, the Missouri v. Biden opinion selectively and deceptively presented the facts to make it seem like the Biden administration has a monopoly on jawboning. Instead, as we know, jawboning is ubiquitous and has no partisan allegiances. Pres. Trump’s administration inappropriately “worked the refs” countless times. See, e.g., Trump’s anti-230 EO jawboning special, which was actually coupled with legal threats, unlike most of the Biden administration’s jawboning. Does Judge Nelson have equally scathing views about the Trump-era jawboning? Or was he just saying the quiet part out loud that some judges are partisans?

For now, this decision represents at least the fifth time the Ninth Circuit has rejected online jawboning claims (the preceding 4: O’Handley, Huber, Doe v. Google, Kennedy v. Warren). Thus, Judge Nelson’s statements help crystallize the stakes of the Supreme Court’s review of Murthy v. Missouri. If the Supreme Court doesn’t reject the Fifth Circuit opinion decisively and completely, then any crack of daylight left open by its opinion will trigger a MAGA fiesta of lawsuits against the Biden administration (of course, a second Trump administration would NEVER engage in overreaches LOL) that will be enthusiastically cheered by TAFS judges. Fun times.

Case citation: Rogalinski v. Meta Platforms, Inc., 2023 WL 7876519 (9th Cir. Nov. 16, 2023)

Selected Jawboning Posts

Selected Posts About State Action Claims