NEW ORLEANS – Allusions to book burning and mobster movies arose during a federal court hearing Thursday as appellate judges heard arguments on whether the Biden administration crosses the line from legal persuasion to unconstitutional censorship in communications with social media platforms about controversial posts.
At issue was a broad July 4 order from U.S. District Judge Terry Doughty in the north Louisiana city of Monroe ruling in a lawsuit by attorneys general in Louisiana and Missouri. A conservative website owner and four critics of the administration's COVID-19 policy are also plaintiffs in the suit.
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The lawsuit claimed the administration, in effect, censors free speech with threats of regulatory action the government could take while pressuring companies to remove what it deems misinformation.
COVID-19 vaccines, the FBI's handling of a laptop that belonged to President Joe Biden’s son, Hunter, and election fraud allegations were among the topics spotlighted in the lawsuit.
Doughty's order blocked the Health and Human Services Department, the FBI and multiple other government agencies and administration officials from “encouraging, pressuring, or inducing in any manner the removal, deletion, suppression, or reduction of content containing protected free speech.”
The 5th U.S. Circuit Court of Appeals put a temporary hold on the ruling last month, while lawyers prepared for Thursday's hearing, where three circuit judges heard arguments.
Justice Department attorney Daniel Tenny told the judges that Doughty's order was overly broad and vague, leaving the government uncertain about what it can tell social media platforms on serious matters such as child trafficking or unfolding natural disasters.
Tenny said the order characterized as threats the normal give-and-take between the administration and the platforms' executives. That prompted Judge Jennifer Walker Elrod to ask whether any threats of government action against the platforms would have to be explicitly stated.
“Like, if somebody is in these movies that we see with the mob or something, they don’t say and spell out things, but they have these ongoing relationships and they never actually say, ‘Go do this or else you’re going to have this consequence,’” said Elrod, who quickly added, “And I’m certainly not equating the federal government with anybody in illegal organized crime.”
Judge Don Willett picked up the theme as he discussed whether there was behind-the-scenes strong-arming. “That's a really nice social media platform you got there. It'd be a shame if something happened to it,” Willett said. “Any response to that?”
Tenny said the ruling by Doughty, appointed to the federal bench by former President Donald Trump, is unsupported by evidence that the administration engaged in illegal coercion.
The plaintiffs argue that the administration has coerced social media executives by using threats of antitrust action or seeking congressional changes to Section 230 of the Communications Decency Act. Section 230 protects platforms from liability for what their users post, and the possibility of antitrust action against the platforms.
“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,” Tenny said.
John Sauer, an attorney arguing for Louisiana, likened administration officials' public statements and private communications seeking content changes to a government call for burning books. He said former White House press secretary Jen Psaki made a serious threat at a press briefing by discussing the possibility of antitrust efforts against the platforms.
“It’s fundamentally transformed online discourse on questions of absolutely overwhelming social and political significance,” Sauer said.
Tenny also criticized Doughty's order for having “put in quotation marks words that the press secretary did not say at that press briefing.” It appeared to be a reference the order's account of a May 5, 2021, news conference with 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,” Doughty wrote.
The words “legal consequences” don't appear in the transcript of that day's White House news conference. Doughty's order does contain accurate partial quotes from Psaki's full response to a question about Facebook's decision to stop carrying posts from Trump, including references to “better privacy protections and a robust anti-trust program.”
Doughty characterized the antitrust mention as a threat. Tenny on Thursday said it was part of a litany of policy issues that “are the sorts of things a press secretary has to be talking about.”
The White House has said publicly it disagrees with the ruling but has said little about how and whether it has affected communication with social media companies so far.
The judges gave no indication when they will rule. Along with Elrod, nominated to the court by George W. Bush, and Willett, nominated by Trump, the case was heard by Judge Edith Brown Clement, another Bush nominee.