Biden administration: We never coerced Big Tech into suppressing speech

Today, three conservative-leaning judges with the 5th US Circuit Court of Appeals heard oral arguments to decide if an injunction should be lifted that restricts the Biden administration from communicating with social media platforms and requesting content takedowns.

The appeal followed a July 4 order from a district court, which found that the Biden administration had coerced platforms into censoring Louisiana and Missouri officials, whose posts were deemed as spreading COVID-19 misinformation.

Arguing for the Biden administration was attorney Daniel Bentele Hahs Tenny, who requested that either the injunction be reversed or a stay of the injunction should be extended by 10 days “in case the solicitor general wishes to pursue Supreme Court review.”

Missouri solicitor general Joshua Divine and attorney Dean John Sauer were on the other side of the argument. Both Divine and Sauer urged the court to uphold the injunction, claiming that states and individual plaintiffs suing had legal standing to seek the injunction.

Tenny began by claiming that the injunction was improper, partly because plaintiffs didn’t identify specific conduct by the Biden administration that requires an injunction. He also argued that with COVID-19 no longer considered a state of emergency and platforms like Twitter no longer policing COVID-19 misinformation, it’s unclear what the ongoing threat would be to plaintiffs seemingly at lesser risk of content removal.

“You have to find for each claim as to each defendant, each thing you’re trying to enjoin that is going to harm these individual plaintiffs,” Tenny said.

Because the plaintiffs did not do that, Tenny argued that the injunction should be reversed.

“What the district court should have been doing is looking for specific things that the government was doing, targeting specific actions by social media companies, causing irreparable injury to these plaintiffs, and if it found any, it could enjoin those, but it didn’t find any,” Tenny said. “That’s the problem.”

Seemingly in Tenny’s view, states have to show ongoing injury to justify the injunction. Lawyers for the plaintiffs, however, claimed that the plaintiffs have recently been subjected to COVID-19 takedowns. That included Sauer, who claimed that a YouTube video featuring him giving a talk about this case was removed, even though the government’s and some platforms’ COVID-19 policies have softened.

What constitutes a threat?

Another argument that Tenny made focused on whether the government, by requesting takedowns, was actually coercing platforms. Tenny claimed that while messages between the Biden administration and social media companies could sometimes be “testy”—apparently “f-bombs” were dropped—there is “no indication on the record” of what the implied threat would’ve been to social media companies if they didn’t comply with takedown requests.

Later, Sauer disputed Tenny’s position, arguing that plenty of evidence “absolutely” supported the district court’s finding that the Biden administration had coerced social media platforms into censoring content.

Perhaps most significantly, Sauer said that it was clear that platforms felt coerced because there was evidence that platforms didn’t want to comply with requests but later bowed to pressure from officials. Sauer cited one example. He said that three days after a Meta platform refused a request, “you have the White House press secretary at the podium, threatening” platforms “with a robust antitrust program”—which “Mark Zuckerberg has publicly stated is an existential threat” to his company—and “in the very next sentence,” the press secretary says, “take down the misinformation.”