Judge likens Biden administration’s social media censorship to mafia tactics; Biden lawyers deny coercion evidence.

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.

Mafia-Like Tactics

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.’”

‘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