[Coming up on the docket of Matthew Kacsmaryk, the Amarillo judge:
cases involving socially conscious investing, press freedoms, and
workplace harassment.]
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AFTER HIS ABORTION PILL RULING, WHAT WILL JUDGE KACSMARYK DO NEXT?  
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Grace Benninghoff
April 11, 2023
The Texas Monthly
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_ Coming up on the docket of Matthew Kacsmaryk, the Amarillo judge:
cases involving socially conscious investing, press freedoms, and
workplace harassment. _

,

 

On Friday, federal judge Matthew J. Kacsmaryk granted
[[link removed]] 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
[[link removed]].
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 
[[link removed]]the
Biden administration’s protections for transgender workers. He
became the first federal judge to challenge the right to
contraception
[[link removed]],
requiring parental consent for teenagers to access birth control from
providers participating in a federal family-planning program.
He’s attempted
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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
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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
[[link removed]] 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
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the reactionary
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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
[[link removed]]. 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
[[link removed]] 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.
[[link removed]]’s
nonprofit, are suing the four legacy media outlets for nearly $10
million. The co-plaintiffs include Ty Bollinger, who’s made
millions
[[link removed]] 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
[[link removed]]”;
and Erin Elizabeth Finn, whose notable claims on her popular
HealthNutNews website include declaring turmeric “better than
chemo”
[[link removed]] 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
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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
[[link removed]] 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
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recent years and has upheld several of Kacsmaryk’s controversial
rulings, including
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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
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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_
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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
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the COVID-19 pandemic—Governor Greg Abbott signed a bill in 2020
that banned
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and local government agencies from working with banks that won’t
invest in oil and gas. Since then, twelve other states
[[link removed].] 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
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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
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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
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the Permian Basin in West Texas, not in North Texas. 

The U.S. Department of Justice filed
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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
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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_
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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
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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
[[link removed]] of bills
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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
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not yet ruled upon.

_More articles by Grace Benninghoff.
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