'Strong-arming': Appeals court judges compare Biden social media pressure to mafia

Fifth U.S. Circuit Court of Appeals Judge Jennifer Walker Elrod declared in court that the Biden administration's efforts to persuade social media companies to remove, throttle and suppress purported misinformation on COVID-19, Hunter Biden's laptop and elections reminded her of a mafia movie.

That was just one of the most memorable examples of the frosty reception Justice Department Civil Division lawyer Daniel Tenny received Thursday from the three-judge panel considering whether to lift or modify last month's ban on several forms of contact between the feds and companies — currently stayed by the 5th Circuit — as the First Amendment lawsuit led by Missouri and Louisiana proceeds.

The back-and-forth at Thursday's hearing resembled that between 6th Circuit judges and DOJ's lawyer at a June hearing in a related social media censorship lawsuit against federal officials by users of X, formerly known as Twitter. Both panels were appointed by Republican presidents.

Echoing the injunction issued by U.S. District Judge Terry Doughty, the 5th Circuit judges repeatedly cited specific conversations from the factual record that suggest social media companies feared legal consequences for not complying with White House and agency requests to censor or diminish the reach of websites or social media postings of which the Biden administration disapproved.

When Tenny claimed the injunction's wording was so broad and vague it could ban the government from alerting the public about "untrue statements" about a natural disaster, Judge Don Willett countered that documented private conversations were the issue.

Federal officials appeared to practice "fairly unsubtle strong-arming" and make "not-so-veiled threats" in the vein of "this is a really nice social media platform you've got there, would be a shame if something happened to it," Willett said. 

Tenny, upon hearing what the judges appeared to be interpreting as coercive pressure, tried to soft pedal the severity of that pressure. "The government is generically going to be angry" when companies resist taking action, but the communications show officials and companies alternating between "friendly" and "testy" conversations, not specific orders to comply "or else."

Judge Elrod didn't seem particularly convinced, telling Tenny that "Or else" isn't required when the government and companies have a "very close working relationship" that resembles a supervisor addressing a subordinate. The "irate messages" actually show high-ranking officials badgering counterparts about why they hadn't taken action against specific accounts as requested, Judge Elrod said: "It's like 'jump and how high.'"

Drilling down on that issue, and pointing to COVID claims specifically, Elrod queried if high-level government officials asked companies "in a coercive manner to propagate certain things that the government knew were untrue, and to deamplify certain things that it knew were true … but didn't fit its message, would that be able to be enjoined?"  

Tenny responded that the question presumes the government acted coercively, and denied any factual evidence, adding that President Biden cannot unilaterally remove legal liability protections under Section 230 of the Communications Decency Act or launch antitrust actions against noncompliant platforms, referring to two possibilities White House officials had earlier floated. 

"Time and again," what the government labels as mis-, dis- and malinformation, "always with great fervor," is vindicated as true, Willett said. Elrod pointed to then-National Institutes of Health Director Francis Collins' internal request to issue a published takedown of the anti-lockdown Great Barrington Declaration. Tenny tried to downplay the government's influence, say that Collins merely asked to rebut its "premises."

Tenny also said the judges could not consider a friend-of-the-court brief submitted by leading House Republicans, including members of the Judiciary and Weaponization of the Federal Government committees. That amicus brief lays out much of the "[v]ery recent evidence" their investigations had obtained that they claim "further corroborates" the factual basis for Doughty's injunction.

Tenny then argued that the state plaintiffs don't even have legal standing to bring the case because the officials who claim their own posts were censored haven't alleged they plan to make similar posts in the future, showing no "ongoing injury," which is a requisite element of injunctive relief.  "A lot has changed" since the suit was filed, including Elon Musk's purchase of then-Twitter and elimination of its COVID misinformation policy, with no subsequent "retribution" by the feds, he said.

Asked by Judge Edith Brown Clement if the feds were still communicating with social media platforms, Tenny clarified he wasn't claiming they "entirely stopped" but evaded whether they maintained "day-to-day involvement." 

Attorney John Sauer, representing the State of Louisiana, asked the judges what they would think of a senior White House staffer contacting Amazon, Barnes & Noble and other booksellers to participate in a "book-burning program" focused on authors who criticize the administration, with the companies only giving in after months of escalating White House rhetoric. 

That's exactly what the White House did to compel platforms to remove and throttle the "most persuasive speakers" critical of its policies, such as former New York Times drug industry reporter Alex Berenson and former Fox News host Tucker Carlson, Sauer said.

Sauer added that the appellate court should indeed take "judicial notice" of the congressional amicus brief because there's no dispute on the authenticity of the newly identified communications and it "powerfully reinforces" the alleged coercion, such as a Facebook official suggesting the company back down because of "bigger fish we have to fry" with the administration.

Even if the platforms were inclined to remove purported misinformation of their own accord, the "timing" shows they acted against Louisiana specifically after federal pressure, Sauer claimed, citing YouTube's removal of a video uploaded by a state Department of Justice official that featured Louisiana residents discussing COVID mandates.

Louisiana can demonstrate ongoing injuries under multiple theories, Sauer said: direct censorship of its officials; "sovereign interest" in hearing its constituents' social-media views on matters of public concern; in "fair, free, unbiased processes" to petition the government; and injury to a "substantial part of our population."

Sauer noted that one of the individual plaintiffs, Health Freedom Louisiana co-director Jill Hines, claimed as recently as May that Facebook keeps taking down groups she created to protest COVID policies. YouTube briefly removed a panel discussion about the case featuring Sauer just last month, he noted.

"This notion that COVID censorship is over is completely unsupportable," Sauer said.

The 5th Circuit did not indicate when a written opinion would be forthcoming.