Appeals panel weighs whether government overreached in its social media requests

Lawyers for the Biden administration and two Republican attorneys general presented arguments to an appeals panel Thursday over whether a district judge overreached by barring government officials from communicating with social media companies about controversial posts. 

During oral arguments, a three-judge panel in Louisiana’s 5th Circuit Court of Appeals asked whether the government acted in a coercive manner — or provided “significant encouragement,” as described in the lower court’s order — with questioning about where the line separating regular government speech and federal overreach falls.

Judges Edith Brown Clement, Jennifer Walker Elrod and Don Willett, all appointed by Republican presidents, sat on the panel. 

“If the government was doing something … in a coercive manner, then that could be the subject of a proper injunction,” Daniel Tenny, an attorney with the U.S. Department of Justice, told the panel. “The problem is that what you would have to do is say, ‘Here’s what the government is doing; that’s coercive, and I’m enjoining that.’” 

The government argued that Louisiana-based U.S. District Judge Terry Doughty’s ruling is “too broad,” employing “sweeping language” that could stop the government from engaging in lawful communications. 

“How do you define coercive?” Willett, a Trump appointee, asked the government.

Tenny replied that there’s not “too much disagreement” over defining coercive as being “where a reasonable person would construe it to be backed by a threat of government action against the party.” But the district court’s ruling also talked about “significant encouragement,” a term with which the government has “major disagreements,” he said. 

The panel questioned Tenny over communications between government officials and social media groups that they said did seem coercive at times. 

Tenny replied it is not the government’s perspective that the “or else” must be said explicitly. However — outside “far-fetched” claims of amending Section 230 or anti-trust laws — no one has identified what that “or else is,” he argued. 

“If the district court thought, ‘There are a few things that happened here … that went over the line,’ then it would have to say, ‘Don’t cross that line anymore,’” Tenny said, suggesting the lower court had not done so. 

Lawyer John Sauer, arguing for Louisiana, countered the government’s arguments with an analogy substituting social media post moderation with book burning. 

“Imagine a scenario where senior White House staffers contact book publishers … and they tell them, ‘We want to have a book burning program, and we want to help you implement this book burning program,’” Sauer said. “We want to identify for you the books that we want burned — and by the way, the books that we want burned are the books that criticize the administration and its policies.” 

Sauer referenced critical statements about social media and misinformation by the White House press secretary — plus forceful emails from government officials to social media companies urging greater action — as purported proof of coercion, not suggestion, to remove controversial posts. 

“Suppose all the booksellers decided that the game wasn’t worth a candle and they started complying,” Sauer said. “That’s exactly what you see here.” 

In its rebuttal, the government pushed back against assertions that statements by the White House press office or President Biden himself are proof of coercion. 

“More privacy protections, robust antitrust … reforms to Section 230 — these are the sorts of things a press secretary has to be talking about,” Tenny said. “These are not threats.” 

Counsel for the attorneys general argued the chronology of events — where, they allege, social media companies tightened their misinformation policies after such comments — provides enough evidence to call the communications an overreach. 

The government also suggested the attorneys general did not have standing due to a lack of evidence showing future or ongoing injury attributable to government conduct, citing loosening COVID-19 policies by both social media companies and the government. 

“A lot has changed in the world of COVID,” Tenny said. “The federal government’s efforts with regard to COVID have changed with the end of the public health emergency.” 

Last month, the Justice Department appealed the Louisiana district court’s decision barring Biden administration officials from contacting social media companies over “any manner the removal, deletion, suppression, or reduction” of content on the platforms containing “protected free speech.”  

Doughty — a Trump appointee — told officials from the Department of Health and Human Services, the Centers for Disease Control and Prevention, the Department of Justice (DOJ), the State Department and the FBI to cut those communications with the companies.   

Biden’s DOJ said such communications are paramount to the administration’s efforts to curb disinformation and in the public’s best interest. The Republican attorneys general who brought the case claimed the administration is engaged in a “campaign of censorship” against conservative views.

The appeals court’s ruling likely won’t come for weeks or months.