from the good-news-bad-news dept
There was a colloquy at oral argument earlier this year in the Free Speech Coalition v. Paxton case between Justice Kavanaugh and FSC that raised the unsettling prospect that at least several of the Supreme Court justices did not understand what preliminary injunctions are for. In that case, the bad Texas law had already been enjoined by the district court (correctly) applying strict scrutiny, but then the Fifth Circuit had dumped the injunction by using a rational basis standard instead. As Justice Sotomayor kept reminding, the only issue before the Supreme Court then was whether the Fifth Circuit used the wrong standard to decide whether the injunction should be kept in force.
But a bunch of justices kept trying to go further, and Kavanaugh in particular expressly kept asking if the Court needed to reach the merits, even at this ridiculously early stage with only a small record already developed, in order to consider whether the plaintiffs challenging the law also had a likelihood of success.
JUSTICE KAVANAUGH: — to restore a preliminary injunction by this Court, we would have to find that you have a likelihood of success on how whatever level of scrutiny is applied, correct? [p.52]
No, the lawyer for FSC reminded justices. All they had to decide was that district court had not abused its discretion when it was interpreting the nascent record only just starting to get built while using the correct strict scrutiny standard. Future stages of the litigation would provide the opportunity for a finer-tuned result on the merits. But preliminary injunctions are for the district court’s best guess at that early stage that an injury is likely to occur if not stopped because, at this stage, we care more about not letting a potentially illegal harm accrue than being 100% correct that it’s illegal when it is too soon to know. And the only question on appeal after one has been issued—even at the Supreme Court—is whether that best guess did something conspicuously wrong, like applying the wrong legal standard or seriously misunderstanding the facts as the early record showed them.
Ultimately SCOTUS (somehow) concluded that the legal standard both lower courts used was wrong, deciding that the “correct” standard was the flimsier intermediate scrutiny, even though this pronouncement ignored precedent to make a new (and constitutionally dubious) rule out of thin air. And it then applied it in a way as to greenlight the law itself, even though such an analysis effectively jumped to the merits prematurely given that the district court itself had not even finished making its own final determination under any standard. The SCOTUS decision essentially produced a “game over” litigation result, abrogating a freedom everyone thought they had up to that point even while the litigation defending that freedom was still very much game on.
Meanwhile, in addition to upending settled First Amendment law, particularly with regard to age-gating, nothing that SCOTUS has done since then has done anything to dispel the concern that it understands the importance of injunctions to protect people from unlawful if not also unconstitutional incursions on their rights. Its habit of dissolving them via administrative stays on the shadow docket has had the effect of making everyone vulnerable to whatever abuse of power the government has been able to exercise and obviated the previous power of the courts to ensure that no unconstitutional injury could be incurred unless and until it is finally shown, via a developed record of facts and law, that none will result from the challenged action.
So it shouldn’t be shocking that the Supreme Court has once again allowed it to be open season on Constitutional rights by aggressive government actors, this time by denying a shadow docket petition seeking relief from a lawless effort by the Fifth Circuit to dissolve an injunction a district court had earlier found warranted to protect the public from an unconstitutional law (in this case, HB 1126, a Mississippi Internet age-gating law).
Furthermore, it did so once again in a law involving age verification and the First Amendment. The “good” news is that, at least this time, Justice Kavanaugh included a concurrence suggesting that Mississippi’s law would ultimately be found unconstitutional on the merits.
To be clear, NetChoice has, in my view, demonstrated that it is likely to succeed on the merits—namely, that enforcement of the Mississippi law would likely violate its members’ First Amendment rights under this Court’s precedents. See Moody v. NetChoice, LLC, 603 U. S. 707 (2024); Brown v. Entertainment Merchants Assn., 564 U. S. 786 (2011); cf. Free Speech Coalition, Inc. v. Paxton, 606 U. S. ___ (2025). Given those precedents, it is no surprise that the District Court in this case enjoined enforcement of the Mississippi law and that seven other Federal District Courts have likewise enjoined enforcement of similar state laws. See No. 1:24–cv–170 (SD Miss., June 18, 2025); NetChoice, LLC v. Yost, 716 F. Supp. 3d 539 (SD Ohio 2024); Computer & Communications Industry Assn. v. Paxton, 747 F. Supp. 3d 1011 (WD Tex. 2024); NetChoice, LLC v. Reyes, 748 F. Supp. 3d 1105 (Utah 2024); NetChoice, LLC v. Bonta, 770 F. Supp. 3d 1164 (ND Cal. 2025); NetChoice, LLC v. Griffin, No. 5:23–cv–5105 (WD Ark., Mar. 31, 2025); Computer & Communications Industry Assn. v. Uthmeier, ___ F. Supp. 3d ___, No. 4:24–cv–438 (ND Fla., June 3, 2025); NetChoice v. Carr, ___ F. Supp. 3d ___, No. 1:25–cv–2422 (ND Ga., June 26, 2025). In short, under this Court’s case law as it currently stands, the Mississippi law is likely unconstitutional.
And yet, by denying this emergency shadow docket petition to lift the stay of the well-earned injunction the district court had granted of this very likely unconstitutional law, SCOTUS, including Justice Kavanaugh, has allowed it to go into its unconstitutional effect.
This indifference to constitutional injury is itself unprecedented. SCOTUS has long since recognized it to be intolerable. In Elrod v. Burns it explicitly declared it as such in the First Amendment context:
The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.
But here we are, with that irreparable injury now being welcomed by a majority of SCOTUS justices, for whom the ancient judicial tool of preliminary injunctive relief is apparently no longer a thing, and because it is the result of yet another unsigned shadow docket maneuver we’ll still never know why.
Filed Under: 1st amendment, 5th circuit, age verification, brett kavanaugh, free speech, injunctions, mississippi, rights, shadow docket, supreme court
Companies: netchoice
