(CN) — The Biden administration urged a Fifth Circuit panel on Thursday to nix an injunction that limits its communications with social media companies, arguing that persuading platforms to take down misleading posts did not cross the line into unconstitutional coercion.
In a 155-page order he issued on Independence Day, U.S. Chief District Judge Terry Doughty found Missouri, Louisiana and several individual plaintiffs had presented proof of arguably the “most massive attack against free speech in United States’ history” that infringed on the First Amendment rights of millions of Americans.
He granted the challengers a sweeping preliminary injunction, restricting White House staffers’ and numerous federal agencies’ communications with social media companies.
After appealing to the Fifth Circuit, the feds lobbied Doughty to stay his injunction.
Doughty denied the government’s stay motion. The Trump appointee insisted his injunction “only bars illegal conduct,” and noted it has a long list of carveouts, allowing the administration to talk to social media firms about posts involving criminal activity, national security threats and those intended to mislead voters about voting regulations.
He also said the White House can still promote its policies and views on matters of public concern.
On July 14, however, a Fifth Circuit panel issued a temporary stay of the injunction and fast-tracked an appeal hearing.
Another panel of the New Orleans-based circuit court heard arguments Thursday.
Doughty compared the government’s efforts to control social media discourse about Covid-19 and the 2020 presidential election to the Ministry of Truth’s propaganda and alteration of historical records in George Orwell’s dystopian novel “1984.”
The dystopian theme continued in Thursday’s 80-minute hearing.
An attorney for the state of Louisiana asked the three judges on the panel to imagine a scenario where senior White House staffers told book publishers to burn books critical of the federal government, and threatened to go after the publishers with an antitrust investigation when they refused to go along.
“And then suppose all the book sellers decided the game wasn’t worth the gamble and they started complying. That’s exactly what you see in the record here,” said John Sauer, Louisiana special assistant attorney general.
Justice Department lawyer Daniel Tenny gave his own bleak scenario.
He said Doughty’s injunction is so broad if there were a natural disaster and untrue statements about it circulating on social media were endangering Americans, the government would be powerless to discourage social media companies to stop spreading the lies.
And, Tenny continued, if a law enforcement official believed certain posts were part of a human trafficking conspiracy he or she would not be allowed to bring the posts to social media platforms’ attention.
U.S. Circuit Judge Jennifer Walker Elrod, a George W. Bush appointee, questioned if either of those examples would be excluded from the communication prohibitions in Doughty’s injunction.
“We don’t know whether they are,” Tenny replied. “The plaintiffs have argued they are not. … The exceptions are very unclear.”
In complaints of online censorship, the most prominent narrative is from Republicans who say social media companies censor right-wing or conservative speech — Exhibit A being Twitter’s suspension of former President Donald Trump after the Jan. 6 insurrection.
But the challengers claim the government’s pressure campaign secretly started in 2017 during Trump’s tenure in the White House when senior congressional staffers, coordinating with the FBI, started regularly traveling to Silicon Valley to meet privately with platforms’ content-moderation chiefs.
They claim the government’s censorship efforts “dramatically increased” after Biden took office in January 2021. And White House officials, including Biden’s former White House Press Secretary Jen Psaki, threatened the companies with “legal consequences” and “adverse legislation,” namely doing away with protections afforded by Section 230 of the Communications Decency Act.
The provision shields social media companies from liability for content posted by third parties and lets them moderate content as they see fit.
Tenny noted it would fall to Congress, not President Biden, to repeal that law. “The idea that if you don’t do what the president wants he’ll amend Section 230 or antitrust laws is far-fetched,” he said.
U.S. Circuit Judge Don Willett agreed with Tenny that the federal officials and the president should be able to make public statements to persuade people about matters of public concern. “I think that passes First Amendment muster with flying colors,” the Trump appointee said.
“But here you have the government in secret, in private, out of the public eye relying on … fairly unsubtle kind of strong arming, in veiled or not so veiled threats — that’s a real nice social platform you got there, it would be shame if something happened to it,” he added.
Tenny insisted that the government had not coerced any social media company to censor any posts because it had not threatened them with any punishment for not doing so.
Louisiana and Missouri convinced Doughty they have standing by laying out in their lawsuit, filed in May 2022, they themselves have been censored online.
The Louisiana Department of Justice said in August 2021the Google-owned video sharing platform YouTube had censored it for sharing footage in which Louisianans criticized mask mandates and Covid lockdown measures.
Missouri says YouTube also removed video of four public meetings in the state’s St. Louis County because some citizens stated masks are ineffective against transmission of Covid-19.
But Tenny, the Justice Department attorney, argued in Thursday’s hearing the states and individual plaintiffs lack standing since they have not alleged they intend to make similar posts in the future.
“To have standing they have to show they have a future, ongoing injury,” he asserted.
Tenny said the Biden administration is no longer focused on combating misleading posts about Covid because its pandemic public health emergency ended in May.
Sauer, Louisiana’s counsel, took issue with that contention. “This notion that Covid censorship is over is totally unsupportable,” he said.
He explained that two weeks ago he gave a talk about this litigation and criticized the federal government’s censorship.
“It was taken down the next day by YouTube. I was censored as a lawyer for the Louisiana attorney general. Do not tell me that Louisiana doesn’t face ongoing censorship injuries as a result of federal influence,” he stated.
Senior U.S. Circuit Judge Edith Brown Clement, appointed by George W. Bush, was also on the panel. The judges gave no timeline for a ruling.
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