By Tom Ozimek
In Missouri’s social media censorship case against the Biden administration, President Joe Biden’s lawyers argued no solid proof of government coercion in content removal requests, while judges said the pressure reminded them of mafia-style tactics.
The back-and-forth about whether the government’s actions were coercive was one of several testy exchanges in a New Orleans court on Aug. 10, where Judges Edith Brown Clement, Jennifer Walker Elrod, and Don R. Willett of the U.S. 5th Circuit Court of Appeals heard oral arguments in the case of the Missouri v. Biden over free speech, censorship, and government collusion.
The case focuses on a First Amendment-based legal challenge to the Biden administration’s pressure campaign on social media platforms to crack down on content that ran afoul of the government’s favored narrative on topics ranging from Hunter Biden’s laptop to COVID-19 vaccines to pandemic restrictions.
A key issue at Thursday’s hearing was what has been described as a “historic” July 4 order (pdf) from U.S. District Judge Terry Doughty that barred government agencies from contacting or working with big tech companies to censor posts on social media.
The Justice Department appealed Judge Doughty’s injunction and won an administrative stay from the 5th Circuit Court of Appeals, putting the Biden administration’s social media contact ban temporarily on ice.
On Thursday, three circuit judges heard arguments from attorneys representing both sides, with the Biden lawyer’s insistence that the administration’s requests weren’t coercively leading several judges to draw comparisons to organized crime tactics.
Broad and Vague
Justice Department attorney Daniel Tenny argued that Judge Doughty’s social media contact ban was too broad and vague, leading to confusion and undermining government efforts to coordinate with social media companies on legitimate issues like fighting crime such as child trafficking or mitigating risks to public safety during natural disasters.
“Plaintiffs have urged, for example, that if there were a natural disaster, and there were untrue statements circulating on social media that were damaging to the public interest, the government would be powerless under the injunction to discourage social media companies from further disseminating those incorrect statements,” Mr. Tenny said.
Judge Elrod challenged him on this position, noting that Judge Doughty’s order featured a carveout allowing federal agencies to interact with social media companies regarding such things as criminal activity, national security threats, and criminal efforts to sway elections.
Mr. Tenny responded by insisting that the carveout in Judge Doughty’s injunction is problematic as it lacks specificity and that the plaintiffs contend that if it’s uncertain whether conduct is criminal, then it should not be covered by the exception and is subject to the contact ban.
Seeking clarification, Judge Elrod asked whether Mr. Tenny is arguing that Judge Doughty’s ban should be lifted and the government should be allowed to use “coercive” measures to pressure social media companies to take down or deamplify posts that may feature truthful information but that simply “didn’t fit its message.”
“There’s a lot of COVID information in this record,” Judge Elrod said.
While the judge didn’t go into detail, documents obtained by the House Judiciary Committee and made public on July 27 show that White House officials applied increasing pressure on Facebook to remove posts that supposedly contained content discouraging people from taking COVID-19 vaccines.
In one case, the White House pushed for a humorous meme to be deleted, and when Facebook refused on the grounds that this request seemed to violate free speech norms, Andy Slavitt, at the time a White House health official, expressed “outrage” that the post wasn’t taken down.
Due to the growing pressure, Facebook began an effort to change its policies on supposed COVID-19 and vaccine misinformation to censor more content, according to the messages released by the House Judiciary Committee.
Mr. Tenney argued that expressions of outrage or other strongly-worded requests never fell into the category of coercion.
“The sort of pressure we’re talking about is, you know, relates to, the government is generically going to be angry. The government might make public statements against somebody,” Mr. Tenny said, arguing that such gestures aren’t coercion.
“Facebook sometimes is willing to do what the government wants and sometimes isn’t,” he said, adding that he believes the government was doing little more than forcefully articulating its position on various issues and pointing the way to a “good course of conduct.”
“Yes, that might influence people. People might want to get on the president’s good side,” Mr. Tenney said, prompting Judge Elrod to interrupt and suggest that he’s downplaying the government’s censorship requests.
“What appears to be in the record are these irate messages from time to time, from high-ranking government officials, saying, ‘You didn’t do this yet’—and that’s my toning down the language,” Judge Elrod said, adding “it’s like ‘Jump,’ and ‘How high?’”
The judge added that some of the exchanges contained in the record produced by the discovery process in the case from Judge Doughty’s court indicated that the dynamic between federal agencies and social media companies appeared to be that of a “supervisor complaining about a worker.”
In one case from that record, Rob Flaherty, former deputy assistant to the president, wrote an email to Facebook on July 15, 2021, in which he demanded to know why the company wasn’t taking action to curb the spread of some COVID-19 narratives.
“Are you guys [expletive] serious?” Mr. Flaherty wrote. “I want an answer on what happened here, and I want it today.”
Mr. Tenny replied by saying that using “testy” language was not the same as making threats.
“If you were saying ‘We’re going to impose some penalty,’ that’s not the way you’d go about it,” Mr. Tenny said. “You wouldn’t say, ‘I’m really mad.’ You’d just say, ‘Do this or else,’ and the ‘or else’ would be clear.”
However, the judge challenged Mr. Tenny’s interpretation of the exchanges, resorting to what she called an “inept” comparison to the world of organized crime, in which the threat of violence or other adverse consequences is often implied rather than put in explicit terms.
“I’m certainly not equating the federal government with anybody in illegal organized crime,” Judge Elrod said. “But there are certain relationships where people know, without always saying ‘or else.’”
Mr. Tenney denied that the Biden administration’s position is that the government has to explicitly state the “or else” for its behavior to be deemed coercive.
He insisted that for the “coercive” label to be true, the threat of retaliatory action on the part of the government has to be there at least “in the background.”
“Nobody has identified what the ‘or else’ is, with two exceptions,” he continued, namely amendments to Section 230 of the Communications Decency Act and the other a reference to antitrust laws.
However, Mr. Tenney argued that the two exceptions never rose to the level of a threat.
“Now, the idea that if you know, if you don’t do exactly what this White House staffer says about this particular thing, the president is unilaterally going to amend Section 230 or amend the antitrust laws is farfetched, and it is not permissible for the district court to make a factual finding that that’s the case,” Mr. Tenny said.
Mr. Tenny took aim at Judge Doughty’s order for having “put in quotation marks words that the press secretary did not say at that press briefing.” This appeared to be a reference to the order’s account of a May 5, 2021, news conference with then-White House press secretary Jen Psaki.
“At a White House Press Conference, Psaki publicly reminded Facebook and other social media platforms of the threat of ‘legal consequences’ if they do not censor misinformation more aggressively,” Judge Doughty wrote.
While the words “legal consequences” don’t appear in the transcript of that day’s White House news conference, Ms. Psaki seemed to hint at the possibility of the government getting tougher with antitrust measures in responding to a question about Facebook’s content policing.
“The President’s view is that the major platforms have a responsibility related to the health and safety of all Americans to stop amplifying untrustworthy content, disinformation, and misinformation, especially related to COVID-19, vaccinations, and elections,” Ms. Psaki said at the time.
President Biden “also supports better privacy protections and a robust antitrust program,” she continued, adding that “his view is that there’s more that needs to be done to ensure that this type of misinformation; disinformation; damaging, sometimes life-threatening information is not going out to the American public.”
Mark Zuckerberg, CEO of Meta, the parent company of Facebook, has in the past described a forced breakup of the company as an “existential threat.”
John Sauer, an attorney arguing for Louisiana (which is a party to the lawsuit), compared Biden administration officials’ public statements and private communications seeking content changes to a government call for burning books.
“Imagine a scenario where senior White House staffers contact book publishers (and sellers),” he said. “And say, ‘We want to have a book-burning program. We want to identify for you the books we want burned. The books that criticize the administration and its policies—and we want to be partners. And here’s 12 authors we want you to pull off the shelves and burn; these are the really bad ones.’”
Mr. Sauer was referring to the Biden administration’s demands that social media companies deplatform the so-called “disinformation dozen,” a group of doctors and other activists who shared critical information regarding COVID-19 vaccines.
Robert F. Kennedy Jr., who is seeking the Democratic nomination for presidential candidate in 2024, is on that list.
Mr. Sauer insisted that Biden administration officials sent emails with “implied threatening comments” while alleging that Ms. Psaki’s remarks at the press briefing amounted to a serious threat to dial up antitrust efforts against social media platforms.
“It’s fundamentally transformed online discourse on questions of absolutely overwhelming social and political significance,” Mr. Sauer said.
At one point during the back-and-forth, Judge Don R. Willett asked Mr. Tenny why the government resorted to private meetings and communications with social media companies rather than simply proclaiming its position on COVID-19 or other topics publicly.
“It seems perfectly fine, in my view, for the government to call out publicly someone for posting or publishing something the government believes is false or believes is dangerous. That passes First Amendment muster with flying colors,” Judge Willet. “But here you have the government in secret, in private, out of the public eye, relying on—as Judge Elrod described—fairly unsubtle kind of strong-arming and veiled or not so veiled threats.”
“That’s a really nice social media platform you got there,” Judge Willet continued. “It’d be a shame if something happened to it.”
The Department of Justice told The Epoch Times in response to a request for comment that it would not remark on pending litigation as a matter of policy.
The judges have not given any indication of when a ruling can be expected.
Missouri Attorney General Andrew Bailey remarked on the proceedings in a thread on X, the platform formerly known as Twitter.
“Today’s hearing was further proof that Joe Biden has zero respect for the Constitution,” Mr. Bailey wrote. “But Missouri is fighting back. He will not get away with this blatant First Amendment violation.”