Federal appeals court skeptical of feds’ relationship with Big Tech, censorship of COVID-19 material

A federal appeals court cast a skeptical eye on the government’s relationship with social media companies Thursday, saying the administration’s pressure campaign to shut down certain views raises thorny constitutional questions.

Judge Jennifer Walker Elrod said the “irate messages” that flowed from high-ranking White House officials to the companies could go beyond the president’s protected First Amendment speech and enter the territory of censorship.

“It’s like ‘Jump,’ and ‘How high?’” said Judge Jennifer Walker Elrod, one of three GOP-appointed judges hearing the case for the 5th U.S. Circuit Court of Appeals. “There seems to be some very close working relationship … like a supervisor complaining about a worker.”

Justice Department lawyer Daniel Bentele Hahs Tenny acknowledged government officials repeatedly told social media platforms to silence messages, but he said there was no coercion so it didn’t amount to censorship.

“These are not threats,” he said, calling the angry missives from the White House a routine “back-and-forth.”

He also admitted to the court that the government continues to patrol social media and communicate with companies about their content.

“There is still some contact,” he said.

The case was brought by Missouri and Louisiana, which argued the government’s attempts to shut down opposing viewpoints during the pandemic or to shape election narratives silenced the states and their residents.

A district judge agreed, calling the federal government’s behavior “Orwellian.” He entered an injunction forbidding a wide array of federal agencies and officials from communicating with the social media platforms about their content.

The 5th Circuit has put the injunction on hold while it ponders the case.

Mr. Tenny said the lower court judge’s decision amounted to a misreading of the facts and delivered an unworkable solution that could leave the government unable to get a company to take down posts about human trafficking or misinformation about a disaster.

The federal government’s lawyer also questioned why the states had standing to sue, saying they hadn’t shown a concrete legal injury.

That issue did give the judges pause, particularly in light of a recent Supreme Court decision on immigration that appears to limit when states can challenge federal action.

But the three-judge panel repeatedly challenged Mr. Tenny‘s description of the interactions with the social media companies as collaborative.

“It seems perfectly fine in my view for government to call out publicly someone for posting or for publishing something that the government believes is false, or believes is dangerous,” said Judge Don R. Willett. “Here you have government in secret, in private, out of the public eye, relying on … subtle strong-arming and veiled or not-so-veiled threats.”

Judge Willett also challenged the government’s sense of righteousness.

“Isn’t it true that time and again, what the government may label misinformation or disinformation or malinformation is sometimes, lo and behold, vindicated as true information?” he said.

Mr. Tenny, though, said it’s not the government doing the takedowns, but rather the social media companies. He said even the plaintiffs acknowledged the FBI only had a 50% success rate in its pressure campaign with the companies, which he said was evidence that the government wasn’t compelling action.

“If you yell and scream at somebody to do something and they don’t do it, no I don’t think that’s coercion,” he said.

Dean John Sauer, an attorney who argued on behalf of Louisiana, told the court that the government’s censorship violated state lawmakers’ ability to hear and see their constituents’ concerns online.

He said the feds demonstrated “unrelenting pressure from the most powerful office in the world” to the social media giants like Facebook and Twitter, among others.