Whether or not the federal government and its myriad agencies will be able to coerce, cajole, encourage, threaten, and browbeat social media companies into removing views it does not like from their platforms was the question before the Fifth Circuit Court of Appeals last week.
The government made an expedited appeal of the July 4th order of the district court in Louisiana prohibiting it from directing or commanding social media companies from taking down content the government did not like. In barely a month, the issue was briefed by the parties, including the states of Missouri and Louisiana and individual plaintiffs, Jay Bhattacharya, Martin Kulldorff, Aaron Kheriaty, Jill Hines, and Jim Hoft, barred from various social media platforms for their statements disliked by the government.
While the parties and the court were concerned with issues of standing and the scope of the injunction, the key issue at the heart of the case was: What protections do Americans have to stop the government from throwing them out of the modern public square of social media by pressuring Big Tech companies to do what the government is absolutely prohibited from doing under the Constitution?
The government’s position at the hearing and throughout the litigation is that it was just talking. It pretends that a long-term effort to threaten social media companies with removing protections from litigation, and new theories or laws regarding anti-trust, and intimidating visits from the FBI starting as early as 2017, coupled with constant hectoring from multiple government actors — with threats always in the background — do not amount to coercion, or even encouragement, of censorship by those companies. This position was met with skepticism by the court.
The government’s attorney was peppered with questions about the vast amount of evidence that the government treated the social media companies like its servants. One judge asked whether the emails sounded like a boss talking to an errant employee. Another asked whether the tone of the government was not like that of mob bosses in the movies: “Nice social media platform you have there. A shame if anything were to happen to it.” The Court also asked if the government was meeting with the social media companies in the same way even now, and the answer was essentially “yes.”
The government explained that all these calls and emails and meetings were really just conversations where they sometimes agreed and sometimes disagreed, but nothing coercive occurred. Judge Willett, alluding to some of the saltier language from the White House to a social media platform, asked whether the F-bombs in the emails were not meant to be intimidating. The government replied that, while it might have been in bad taste, that email was not urging censorship.
The backstory to it is incredible. The Biden White House had been hectoring social media companies to censor “misinformation superspreaders” about Covid-19. In response, an algorithm had been created that assumed those posting obsessively about the subject were likely “superspreaders of misinformation.” The White House’s account was caught and censored by the very censorship mechanism the White House had insisted upon! Upon discovery, Rob Flaherty of the White House sent a profanity-laced screed demanding this action be reversed! It’s one thing to censor regular Americans and treat their First Amendment rights like dirt at our command, but when it happens to us it’s an outrage!
Speaking for the plaintiffs, attorney John Sauer explained to the court that if the government had threatened booksellers with all kinds of government action and then demanded that books that criticized it be burned, everyone would recognize the First Amendment violation. If they said they were just talking and having discussions, no court would believe it. He noted that the timeline of the pressure campaign and the long campaign by the government to insinuate itself into every decision regarding “content moderation” that a platform made created an easy case for an injunction. The court questioned him on the standing of the parties to sue and the scope of the injunction, but in contrast to the government, the questions did not go to the heart of the relief that had been granted.
In short, for the First Amendment and the right of Americans to enter the modern public square of the internet without fear of government censorship, it seemed like a good day. We shall see if this is borne out by the court’s eventual opinion.