On November 4, Defense Distributed filed its petition for rehearing en banc in the challenge to the State Department’s prior restraint. The government’s reply was filed on November 23. After sitting on the court’s docket for nearly four months, the Fifth Circuit has denied rehearing banc. The vote was 9-4.
The Court having been polled at the request of one of its members, and a majority of the judges who are in regular service and not disqualified not having voted in favor (Fed. R. App. P. 35 and 5th Cir. R. 35), the Petition for Rehearing En Banc is DENIED. In the en banc poll, five judges voted in favor of rehearing (Judges Jones, Smith, Clement, Owen and Elrod) and nine judges voted against rehearing (Chief Judge Stewart and Judges Jolly, Dennis, Prado, Southwick, Haynes, Graves, Higginson and Costa).
Judge Elrod, joined by Judges Jones, Smith, and Clement, issued a dissental. (Judge Owen, who dissented from denial of rehearing, did not joint he dissental). Her opinion is on point:
The panel opinion’s flawed preliminary injunction analysis permits perhaps the most egregious deprivation of First Amendment rights possible: a content-based prior restraint. Judge Jones’s cogent panel dissent thoroughly explores the flaws in the panel opinion. I write here to highlight three errors that warrant en banc review. First, the panel opinion fails to review the likelihood of success on the merits—which ten of our sister circuits agree is an essential inquiry in a First Amendment preliminary injunction case. Second, the panel opinion accepts that a mere assertion of a national security interest is a sufficient justification for a prior restraint on speech. Third, the panel opinion conducts a fundamentally flawed analysis of irreparable harm. Accordingly, I respectfully dissent from the denial of en banc review in this case.
My co-counsel and I offered this statement:
“We agree with Judge Elrod’s dissent that the court’s decision ‘permits perhaps the most egregious deprivation of First Amendment rights possible.’ Although the 5th Circuit would not rehear our case, Defense Distributed’s rights are still being violated. This case is far from over.”