On Friday, federal judge Matthew J. Kacsmaryk granted a preliminary injunction that could remove mifepristone, better known as the abortion pill, from the market. It was a seismic ruling; it marks the first time a drug approval by the U.S. Food and Drug Administration has been blocked by a federal judge. But this is hardly Kacsmaryk’s first controversial decision; the federal judge has issued a head-spinning series of radical rulings in the short time since Donald Trump appointed him to the bench in a once-obscure judicial outpost of the Northern District of Texas in 2019.
From his courtroom in Amarillo, Kacsmaryk vacated the Biden administration’s protections for transgender workers. He became the first federal judge to challenge the right to contraception, requiring parental consent for teenagers to access birth control from providers participating in a federal family-planning program. He’s attempted to sway American foreign policy by ordering President Biden’s administration to reinstate the Trump-era Remain in Mexico policy, which returned asylum seekers to Mexico to await their hearings.
Kacsmaryk, who previously worked as an attorney for a religious-right law firm based in Plano, has been able to issue such nationally consequential rulings because of the increasingly rampant practice of “judge-shopping.” Because of the unusual rules under which the Northern District operates, plaintiffs who file in Amarillo are guaranteed to have their cases heard by Kacsmaryk. Right-wing groups, such as the dubious plaintiff in the abortion-pill case—a mysterious nonprofit with a Tennessee mailing address that incorporated in Amarillo last August—are taking full advantage.
Now that Kacsmaryk’s decision has come down, national attention will turn to the Department of Justice’s appeal to the reactionary U.S. Fifth Circuit Court of Appeals. But the judge will be moving on, and he has three cases on his current docket that will address big questions with national implications.
Can news organizations partner with social media to flag false information?
Children’s Health Defense v. Washington Post
The case: In 2020, the Washington Post, Reuters, the Associated Press, and the BBC came together to found the Trusted News Initiative. The partnership joins with social media companies like Meta and Twitter to help track and regulate disinformation campaigns. The aim is to remove from social media—or, at the very least, publicly flag—information that TNI partners determine to be false while being presented as credible news.
For example, after former secretary of state Colin Powell died of complications relating to COVID in 2021, disinformation circulated widely online claiming that the COVID vaccine caused his death. TNI worked with social media companies to flag posts attributing Powell’s death to the vaccine. So instead of scrolling through a Twitter feed and seeing links to pages with the false claims, users saw blurred links and a pop-up warning reading “false information.”
A group of anti-vaccine influencers and COVID conspiracy theorists, led by Robert F. Kennedy Jr.’s nonprofit, are suing the four legacy media outlets for nearly $10 million. The co-plaintiffs include Ty Bollinger, who’s made millions spreading disinformation and marketing false cures for cancer and COVID; Ben Tapper, a social-media influencer who said the pandemic was an excuse for governments to exert control through a “blanket of tyranny”; and Erin Elizabeth Finn, whose notable claims on her popular HealthNutNews website include declaring turmeric “better than chemo” for treating cancer.
Kennedy and the other plaintiffs allege that the TNI’s warnings have made it nearly impossible for “small online publishers”—in this case, that often means blogs—to freely share information. In the court filing, plaintiffs say they have been “censored,” “throttled,” and “demonetized” as a result of the TNI’s efforts to keep disinformation from circulating. Their case rests on a farfetched argument that the partnership violates federal antitrust laws, which aim to protect market competition by outlawing illegal mergers and other conduct that could eliminate competition in business.
“Of all the cases in [Kacsmaryk’s] court, this seems to me the easiest to throw out,” said Steven Brill, a lawyer and the CEO of Newsguard, a nonpartisan organization that produces “trust scores” for news sites. News organizations have broad First Amendment rights, he noted, “including the right to consult with each other about if there is a false narrative going around.” Brill believes there is “nothing” to the suit. “It’s about as real as [Kennedy’s] musings about COVID,” he said. But many legal experts said the same of the mifepristone case Kacsmaryk agreed to hear and has now ruled on. His failure to dismiss such cases, Brill said, reinforces “who this judge is perceived to be” by right-wing activists, and emboldens them to continue judge-shopping cases to his court.
Why it was filed in Amarillo: The plaintiffs argue that Amarillo was the proper place to file this case because many people who access the content published by the plaintiffs reside in Texas.
What could happen: If Kacsmaryk rules that the TNI is violating antitrust laws and censoring online platforms known for spreading disinformation, the initiative would be ordered to stop its work and pay damages pending appeals. Brill is skeptical that a ruling for the plaintiffs would get very far. “There is no appellate court in any district of the United States that would uphold that kind of ruling,” he said. But the first court to which the defendants would appeal, the Fifth Circuit, has become famously unpredictable in recent years and has upheld several of Kacsmaryk’s controversial rulings, including his order to stop the Biden administration from terminating the Remain in Mexico policy.
Can banks managing Social Security funds consider ESG factors when investing?
Utah v. Walsh
The case: Texas and 25 other (mostly red) states are suing the U.S. Department of Labor over a new rule that went into effect on January 30 that changes the way Social Security money is invested.
Environmental, social, and governance factors in investing—also known as ESGs—have become increasingly popular with major banks and investment firms over the past two decades. The principle behind ESG is that companies with better environmental practices, more diverse workforces, and solid internal governance are not only better for society, but also will be more lucrative to invest in. Bloomberg and Reuters, among others, produce ESG scores for companies, which in turn influence banks’ investment decisions.
As ESG scores have become more influential in recent years, pushback from oil and gas companies has followed. After an extended lobbying effort in Texas by the industry—which had trouble securing bank loans during the COVID-19 pandemic—Governor Greg Abbott signed a bill in 2020 that banned state and local government agencies from working with banks that won’t invest in oil and gas. Since then, twelve other states have followed suit in an effort to rebuke the growing influence of ESG.
In order to protect Social Security investments, the Department of Labor has long had a set of regulations guiding how private-sector companies can invest their employees’ funds. The Trump administration amended these regulations to include a rule that sought to block ESG factors from having any sway on government investment decisions. This winter, the Biden administration enacted a new rule that once again allows fiduciaries to consider ESG factors. That’s what triggered this lawsuit.
The plaintiffs allege that the feds are putting retirement savings in jeopardy by encouraging banks to invest in ESG. They argue that allowing fiduciaries to consider ESG factors when investing Social Security funds is risky for clients and promotes an “arbitrary and capricious” metric. They are asking that the rule be overturned.
Why it was filed in Amarillo: The plaintiffs could have filed in any of the 26 states bringing the case, or in the District of Columbia, since they’re suing a department of the federal government. Ultimately, Texas attorney general Ken Paxton filed the case in Amarillo, arguing that an exceptional amount of oil and gas activity in Texas happens in the Amarillo area. But most of the state’s oil and gas production is concentrated in the Permian Basin in West Texas, not in North Texas.
The U.S. Department of Justice filed a motion to move the case out of the Amarillo district in February. The government argued that if the case were to be tried in Texas, it should be in the capital city of Austin, where Paxton’s office is. Moving the case out of Kacsmaryk’s court, they said, would “avoid any appearance of judge-shopping by plaintiffs” that would “undermine public confidence in the administration of justice.” Kacsmaryk denied the request after the owner of a risk-consulting firm in Amarillo was added to the case.
What it could mean: A ruling in favor of the plaintiffs has a solid shot at being upheld by the Fifth Circuit. ESG investing has become a politically polarizing issue, and that doesn’t bode well for the Biden administration. The next appeal would be to the U.S. Supreme Court, which would be likely to hear it because the case has been brought against the federal government. A ruling against the Department of Labor would make it more difficult for banks to make investment decisions that prioritize clean energy, social progress, and fair labor practices.
Can employees be harassed because of their sexual identity?
McGovern v. Friona Industries
The case: Keith McGovern, who worked for about eight months at Friona Industries—a farm equipment supplier in Dalhart, a town an hour north of Amarillo—filed suit in February claiming that the company violated his civil rights, and that he was fired because he’s gay.
According to the case filing, managers and coworkers frequently directed “disparaging, harassing comments” at McGovern throughout his brief time at Friona. For instance, McGovern said coworkers and management consistently called him “she,” and that his bosses would routinely ask him to spot them on ladders for work and tell him, “Don’t be looking at my ass.” McGovern brought up the abuse to the company’s human resources department, but was told he would have to wait an unspecified amount of time to write a formal complaint after the company hired a new farm manager. It was never made clear to McGovern why this was necessary. McGovern says he was dismissed after he finally spoke up against the alleged abuse to his manager, who he says also routinely harassed him. (Friona Industries declined multiple requests to respond to the allegations.)
Why it was filed in Amarillo: Both the defendant and the plaintiff are based in the Amarillo area, so this one wasn’t judge-shopped.
What it could mean: Back in 2020, the Supreme Court ruled on Bostock v. Clayton County and established nationwide employment discrimination protections for LGBTQ workers. The court determined that Title VII of the Civil Rights Act of 1964, which prohibited discrimination on the basis of race, religion, or sex, protected LGBTQ employees as well.
“What makes me nervous about this case is that we have already seen Kacsmaryk chip away at Bostock,” said Johnathan Gooch, the communications director at Equality Texas, a nonprofit fighting for LGBTQ rights. In October, Kacsmaryk ruled on another employment discrimination case that relied on Bostock’s precedent, finding that while it does prohibit employment discrimination on the basis of gender identity and sexuality, those protections do not extend to the use of correct pronouns or the availability of gender-appropriate bathrooms for employees.
Now he could decide that Bostock’s protections do not apply to verbal harassment. For Gooch, this underscores the urgency of getting nondiscrimination protections written into law. (A handful of bills in the Texas Legislature aim to codify employment discrimination protections for LGBTQ Texans.)
If Kacsmaryk rules against McGovern, it will have an immediate impact. “It’s alarming to say the very least to have a judge allow this type of conduct that includes slurs and explicit derogatory language that obviously nobody could endure in a workplace,” Gooch said. “It’s incredibly dangerous and terrifying for queer people.” Should McGovern or Friona Industries appeal Kacsmaryk’s ruling, it would go to the Fifth Circuit, where Kacsmaryk’s previous ruling curtailing LGBTQ workers’ rights has been appealed but not yet ruled upon.