Appeals court weighs limits on Biden administration contact with social media platforms
The lawsuit was originally filed by attorneys general in Missouri and Louisiana last year alleging the federal government colluded with social media companies to suppress free speech
The lawsuit has garnered widespread attention, and attracted a who’s who of co-plaintiffs with long histories of spreading misinformation and debunked conspiracy theories (Chris McGrath/Getty Images).
Attorneys for the Biden administration argued Thursday that a district judge in Louisiana overstepped his authority by barring the federal government from communicating with social media companies to urge them to moderate information deemed harmful or misleading.
A three-judge panel of the 5th U.S. Circuit Court of Appeals in New Orleans heard arguments over whether it should lift an injunction issued by a lower court in July that concluded the government wrongly pushed social media companies to suppress disfavored political views.
Daniel Tenny, an attorney with the U.S. Department of Justice, made the case Thursday that the injunction hampers the government’s ability to deal with misinformation during emergencies and violates the government’s own right to speak freely.
“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,” said Daniel Tenny of the U.S. Department of Justice.
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The lawsuit was filed last year by former Missouri Attorney General Eric Schmitt and Louisiana Attorney General Jeff Landry. It alleges the federal government colluded with social media companies like Twitter and Facebook to suppress the freedom of speech.
U.S. District Judge Terry Doughty ruled July 4 that officials under both Democratic President Joe Biden and Republican President Donald Trump coerced social media companies to censor content over concerns it would fuel vaccine hesitancy during the COVID-19 pandemic or upend elections.
Doughty, a Trump appointee, said the “widespread censorship campaign” violated the U.S. Constitution’s First Amendment’s free speech guarantees. His order barred government agencies, including the Department of Health and Human Services and the Federal Bureau of Investigation, from contacting social media companies “for the purpose of urging, encouraging, pressuring or inducing in any manner the removal, deletion, suppression or reduction of content containing protected free speech.”
The Biden administration quickly appealed, and the 5th Circuit temporarily put the judge’s ruling on hold.
During Thursday’s hearing, judges asked Tenny directly about communications between the government and social media companies, which they said at times felt coercive.
“What appears to be in the record are these irate messages, from time to time, from high ranking government officials who say ‘you didn’t do this yet,’” ”said Judge Edith Brown Clement, an appointee of former President George W. Bush. “And so it’s like, jump, and how high.”
Judge Don Willett, a Trump appointee, said he believes it’s “perfectly fine for the government to call out publicly someone for posting or publishing something that the government believes is false or believes is dangerous.”
But the conversations at the heart of this lawsuit took place in private, Willett said, and seem to have relied on “a fairly unsubtle kind of strong arming.”
“That’s a really nice social media platform you got there,” Willett continued, “it’d be a shame if something happened to it.”
D. John Sauer, the former solicitor general of Missouri who argued Thursday on behalf of the Louisiana attorney general, equated the government’s communications with social media companies to hypothetically pressuring booksellers to create a “book burning program.”
“In July of 2021, you see the platform’s having resisted the White House pressure for a significant period of time, all of a sudden after public threats combined with the private pressure campaign that had lasted for months and months, you see the platform just giving in,” Sauer said.
The result, Sauer argued, was the deplatforming of conservative voices and the silencing of “prominent critics of the administration.”
Biden administration attorneys argued federal officials don’t have the authority to order content removed from social media platforms, accusing GOP attorneys general of misrepresenting communications with companies about public health disinformation and election conspiracies.
There is no evidence of threats by the administration, Tenny said Thursday.
“The district court identified no evidence suggesting that a threat accompanied any request for the removal of content,” Tenny argued in a brief asking for the injunction to be lifted.
The whole theory of coercion, Tenny said, “falls apart on the facts.”
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The lawsuit has garnered widespread attention, and attracted co-plaintiffs with long histories of spreading misinformation and debunked conspiracy theories.
That includes Jim Hoft, founder of the right-wing conspiracy website Gateway Pundit, who was added to the lawsuit in August and has built a career on promulgating conspiracies on a wide range of topics, from the 2018 Parkland school shooting to former President Barack Obama’s birth certificate.
More recently, Hoft has been among the biggest purveyors of election fraud lies. He currently faces defamation lawsuit in St. Louis circuit court filed by two Georgia election workers who faced death threats following Gateway Pundit’s false stories about a vote-rigging scheme.
Sauer cited Hoft directly during Thursday’s argument, claiming that he is “currently subjected to an ongoing campaign by federal officials to target the content on his website.”
The lawsuit also attracted support from presidential hopeful Robert F. Kennedy Jr., who has a long history of promoting medical misinformation such as the idea that vaccines cause autism and Wi-Fi causes cancer.
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