Both the judges and the plaintiffs in the Missouri v. Biden free speech lawsuit resisted the Biden administration’s arguments backing its social media censorship efforts during oral arguments Thursday.
The Fifth Circuit heard arguments Thursday regarding the Biden administration’s appeal of a lower court’s injunction barring federal officials from communicating with social media companies for the purposes of censoring protected speech. Nearly all of the points raised by Department of Defense (DOJ) lawyer Daniel Tenny, representing the administration, were met with resistance by the three judges hearing the case, and opposition from the plaintiff’s lawyer.
When Tenny said the federal government had a “back and forth” relationship with social media companies that did not include coercion, judges offered analogies illustrating that coercion doesn’t need to be attached to an explicit threat.
Judge Jennifer Walker Elrod, a George W. Bush appointee, said the administration had a “very close working relationship” with companies that was like “a supervisor complaining about a worker” or the mob making demands without having to “spell out things.”
Tenny later claimed that states did not have standing because they could not prove the same government-backed content moderation actions would be taken against them for future posts. Elrod said she didn’t understand.
“I don’t understand what’s not going to happen in the future,” she said. “Don’t all state government people make posts all the time?”
Judge Edith Brown Clement, a George H. W. Bush appointee, asked Tenny if the government still had regular contact with social media platforms about moderating election misinformation.
“I would acknowledge that there is still some contact, whether the nature of it is identical to what happened in the past, I wouldn’t say that, ” Tenny said. (RELATED: Judge In Censorship Case Compares Biden Admin’s Relationship With Big Tech To The Mob)
President Joe Biden talks to EPA Administrator Michael Regan after signing an executive order that would create the White House Office of Environmental Justice, in the Rose Garden of the White House April 21, 2023 in Washington, D.C. (Photo by Drew Angerer/Getty Images)
John Sauer, special assistant attorney general for the state of Louisiana, who represented the plaintiffs, later rebutted the claim about standing.
“Multiple state officials and state agencies made specific postings on social media platforms that were taken down, and the district court ,with express reference to those, found that it was caused by federal pressure,” he said, noting that the government’s assertion the states haven’t shown they will make future posts subject to moderation is “just wrong.”
“There’s a finding from the district court that the states are facing the imminent threat of ongoing future censorship,” Sauer said.
Responding to the Biden administration’s insistence that there was no coercion, Sauer pointed out that the district court’s opinion finds a series of statements “explicitly linking the threat of adverse legal consequences to the White House’s demand to target specific viewpoints expressed in the COVID-19 area,” along with finding other implied threats.
“You have the FBI sending one to five times per month a demand for removal of specific speakers — from dozens or hundreds at a time — going all the way back to 2018,” he said.
“It’s a targeting of specific speakers, specific content and specific viewpoints that has been so widespread and so effective that it has fundamentally transformed online discourse on questions of absolutely overwhelming social and political significance,” Sauer said.
Louisiana Attorney General Jeff Landry and Missouri Attorney General Andrew Bailey initially filed the lawsuit in May 2022. Western District of Louisiana Judge Terry A. Doughty issued an injunction against the Biden administration on July 4.
The Fifth Circuit issued a temporary stay on the injunction on July 14 “until further orders” of the court.
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