Monday, the Fifth Circuit panel decided Missouri v. Biden— which held that certain federal government actions “improperly forced or encouraged” the platforms to restrict certain user speech — issued an order stating that it granted a petition for rehearing. This means the committee is likely to reconsider the decision, although it was not clear how broad the scope of any changes would be. The petition was filed by the challengers (Missouri and others), and they argue that the panel erred in finding that there was no First Amendment violation by the Cybersecurity and Infrastructure Security Agency and the State Department’s Center for Global Engagement.
However, it appears that this was actually the result of a clerical error made by the Fifth Circuit Clerk’s Office. Yesterday, the Commission withdrew its grant of rehearing, saying, among other things, that the government was “directed to file a response to the petition for rehearing by September 28, 2023, at 12:00 p.m.” and the Commission was then supposed to consider the petition. and respond, determining whether or not to grant a rehearing. (Such hearings are rarely granted.) According to Talking Points (Kate Rega) note,
“Today’s order addresses a clerical error made by my staff,” writer Lyle Case said in an email. “Only yesterday the court intended to allow an application for a rehearing, but our order made it appear that a rehearing had been granted. That was wrong and inconsistent with the guidance.”
He added: “As you know, the mandate was issued immediately, and the parties are still within the time allowed to request a rehearing.” “Therefore, today’s order withdraws the erroneous order and remands it, giving the court the authority to consider any motion for rehearing filed by noon on September 28.”