by Joy Pullmann
In this major case likely to hit the U.S. Supreme Court, the Biden administration is fighting to stop American citizens from sharing messages government officials don’t like.
On Thursday afternoon, three Fifth Circuit Court of Appeals judges heard Biden administration arguments to let government keep pressuring social media monopolies to ban ideas they don’t like from the internet. On July 4, a lower court had ordered the Biden administration to cease what it called “arguably … the most massive attack against free speech in United States’ history.” The Fifth Circuit paused that injunction on July 14 and heard oral arguments against it on August 10 in Missouri v. Biden.
In this major case likely to hit the U.S. Supreme Court, the Biden administration is fighting to stop American citizens from sharing messages government officials don’t like. This case uncovered reams of White House and other high-level officials threatening internet monopolies with the end of their entire business model if they didn’t ban speech by Democrats’ political opponents.
“It’s far beyond the scope of what people realize,” says a lawyer for the plaintiffs, Zhonette Brown, of the public interest firm New Civil Liberties Alliance (NCLA).Internal documents Twitter divulged under new owner Elon Musk provided more proof that social media monopolies are silencing Americans from Tucker Carlson and Robert F. Kennedy Jr. to millions of non-famous citizens at the behest of government pressure. Here are some key takeaways from Thursday’s oral arguments and earlier revelations from this massive First Amendment case.
1. By the Government’s own definition, it’s Censoring
Key to Thursday’s arguments was the question of coercion: Did government demands of internet monopolies equal coercion, or were those merely officials advocating for their views?
“If the government was doing something like that in a coercive manner, then that could be the subject of a proper injunction,” Department of Justice lawyer Daniel Bentele Hahs Tenny told the court in his opening remarks. “The problem is that what you would have to do is say, ‘Here is what the government is doing that’s coercive, and I’m enjoining that.’”
Judge Don Willett responded: “How do you define coercive?”
Tenny: “I don’t think there’s too much disagreement on this point. Coercive is where a reasonable person would construe it to be backed by a threat of government action against a party if it didn’t comply.”
That’s exactly what the government did, the voluminous documents already discovered in this case show. In just one of the examples, Meta executive Nick Clegg, a former high-ranking U.K. official, told his bosses Mark Zuckerberg and Sheryl Sandberg: “We are facing continued pressure from external stakeholders, including the White House and the press, to remove more covid-19 vaccine discouraging content” (emphasis original).
Clegg also characterized to colleagues an interaction with Andy Slavitt, a White House Covid adviser, this way: “[H]e was outraged – not too strong a word to describe his reaction – that we did not remove this post” of a meme about trial lawyers getting 10 years of vaccine-injured clients from government mandates.
2. Government Officials treated Internet Monopolies like their subordinates
The Fifth Circuit panel demonstrated familiarity with the numerous examples of this kind of government behavior, such as this e-mail exchange between White House digital director Rob Flaherty and Facebook, in which Flaherty swears at Facebook engineers, “Are you guys f-cking serious? I want an answer on what happened here and I want it today.”
“What appears to be in the record are these irate messages from time to time from high-ranking government officials that say, “You didn’t do this yet,’” Judge Jennifer Walker Elrod told Tenny. “And that’s my toning down the language. … So it’s like, ‘Jump!’ and, ‘How high?’”
The judges also noted the White House publicly threatened the business model of all online communications monopolies through potentially revoking Section 230 and launching antitrust lawsuits. The lawsuit documentation shows leading Democrats making the same public threats, including House Speaker Nancy Pelosi and multiple U.S. senators.
Joe Biden even threatened to hold Zuckerberg criminally liable for not running Facebook the way Biden wanted. In office, Biden also infamously accused Facebook of “killing people” by not doing enough to spread the administration’s message and suppress opposing messages. FBI agent Elvis Chan‘s deposition in this case noted federal officials showed adverse legislation to social media monopolies’ leaders as examples of what the government would do to them if they didn’t ban Americans’ speech.
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