From the Brownstone Institute

BY AARON KHERIATY

As I explained previously, the government appealed the district court’s preliminary injunction in Missouri v. Biden, which would prohibit the government from pressuring social media companies to censor Americans online. Two days ago, a three-judge panel in the 5th Circuit court of appeals heard oral arguments from both sides.

Alex Gutentag over at Public yesterday provided a great summary of the judge’s responses during the hearing:

Yesterday the Fifth Circuit court heard oral arguments in the Missouri v. Biden case, and the judges did not hold back. One judge suggested the government “strongarms” social media companies and that their meetings had included “veiled and not-so-veiled threats.”

Another judge described the exchange between the Biden administration and tech companies as the government saying, “Jump!” and the companies responding, “How high?”

“That’s a really nice social media company you got there. It’d be a shame if something happened to it,” the judge said, describing the government’s coercive tactics.

Attorney John Sauer, representing Louisiana, masterfully argued that the government had repeatedly violated the First Amendment. He pointed to specific evidence of coercion in the Facebook Files.

“You have a really interesting snapshot into what Facebook C-suite is saying,” Sauer explained. “They’re emailing Mark Zuckerberg and Sheryl Sandberg and saying things like… ‘Why were we taking out speech about the origins of covid and the lab leak theory?’” The response, Sauer said, was, “Well, we shouldn’t have done it, but we’re under pressure from the administration.”

He also cited an email from Nick Clegg, Facebook President of Global Affairs, that pointed to “bigger fish to fry with the Administration — data flows, etc.”

On Monday, Public reported that these “data flows” referred to leverage the Biden administration had over the company; Facebook needed the White House to negotiate a deal with the European Union. Only through this deal could Facebook maintain access to user data that is crucial for its $1.2 billion annual European business.

But Sauer also made it clear that coercion was not the only basis on which the court could rule against the Biden administration. Joint activity between the White House and social media platforms would also be unconstitutional.

Sauer compared what the government had done to book burning. “Imagine a scenario where senior White House staffers contact book publishers… and tell them, ‘We want to have a book burning program, and we want to help you implement this program… 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.”

Daniel Tenny, the attorney for the Department of Justice, was left nitpicking and misrepresenting the record. In one instance, he denied that Anthony Fauci and Francis Collins had hatched a plan to orchestrate a “takedown” of the Great Barrington Declaration. Why? Because, Tenny said, according to their emails, they actually planned a takedown of “the premises of the Great Barrington Declaration.”

Tenny also stated that social media companies had not removed any true content. From the case’s discovery as well as the Facebook Files we know that is far from true. Facebook, against internal research and advice, did remove “often-true content” that might discourage people from getting vaccinated. Facebook’s own emails clearly suggest that the company only did this due to pressure from figures within the Biden Administration.

Tenny also claimed that when Rob Flaherty, the White House director of Digital Strategy, dropped the F-bomb in an exchange with Facebook it was not about content moderation. In fact, it was precisely about content moderation and occurred during a conversation about how Instagram was throttling Biden’s account. Ironically, the account couldn’t gain followers because Meta’s algorithm had determined that it was spreading vaccine misinformation.

Later, Sauer demolished an earthquake hypothetical that Tenny had introduced to justify state-sponsored censorship. “You can say this earthquake-related speech that’s disinformation is false, it’s wrong,” Sauer said. “The government can say it’s bad, but the government can’t say, ‘Social media platforms, you need to take it down.’ Just like a government can’t stand at the podium and say, ‘Barnes and Noble, you need to burn the bad books, burn the Communist books, whatever it is.’ They can’t say take down speech on the basis of content.”

Based on this hearing, the plaintiffs in Missouri v. Biden may have a strong chance of winning. Biden’s DOJ simply had no valid arguments to present. The evidence is clear: the administration brazenly engaged in an unlawful censorship campaign and instrumentalized private companies to do its bidding. This total disregard for fundamental civil liberties will be a stain on the Democratic Party for years to come.

Matt Taibbi’s reporting on this at Racket News yesterday was likewise excellent. I especially appreciated his colorful account of our brilliant lawyer, John Sauer. A few excerpts:

Early in the afternoon, a three-judge panel met to decide whether or not to revoke a stay of Judge Terry Doughty’s sweeping July 4th order barring a battery of government agencies from contacting social media companies about content moderation. Biden administration counsel Daniel Bentele Hahs Tenny was under fire from the jump.

It was hard not to feel for Tenny. Sitting across from him was a packed table of anxious plaintiffs’ attorneys, including Missouri’s garrulous, tornado-like former Solicitor General John Sauer — the driving force behind the Missouri v. Biden legislation — as well as the current officeholder, a lean, plain-spoken lawyer with Jimmy Stewart vibes named Josh Devine. Tenny, an ashen, slouching figure, was alone. In a case of major historical import, likely headed to the Supreme Court, the federal government hadn’t even sent another lawyer to keep him company. Staring down at his table, he looked like Napoleon Dynamite at lunch.

Called first, Tenny read a speech. He made it through the first thirty seconds well enough, arguing that Doughty’s July 4th order would leave the government “powerless” to discourage social media companies from disseminating “untrue” statements in the event of a natural disaster. Then, almost right away, he stepped in it.

“To take another example,” Tenny went on. “If… a government official were to conclude that it was likely, although not certain, that posts on social media were part of a criminal conspiracy, for example regarding human trafficking… the government official would be powerless to bring those posts to the social media company’s attention.”

Judges Edith Brown Clement, Jennifer Walker Elrod, and Don Willett listened sleepily at first, but all three snapped awake at the words “criminal conspiracy.” Doughty’s July 4th order specifically exempted communications about “criminal activity or criminal conspiracies,” posts that “threaten the public safety,” and communications about things that are “not protected free speech.” Tenny’s remarks more or less immediately drove into this wall of exceptions.

“So you do not believe that either of those are covered by the exception or exclusion specifically contained in the injunction?” asked Elrod.

Things then went bad to worse for the government:

Before long judges were rattling off greatest hits of both the Missouri v. Biden evidence and Facebook Files material, the worst possible scenario. Elrod within minutes was referencing posts by officials like the White House’s Rob Flaherty expressing frustration that content like Tucker Carlson videos or Alex Berenson articles hadn’t been removed.

“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,” she said. “It’s like ‘Jump!’ and ‘How High?’”

Tenny tried to reorient Elrod to the question of whether or not this constituted overt coercion. If you were coercing, he said, “You wouldn’t say, ‘I’m really mad.’ You would just say, ‘Do this or else,’ and the or else would be clear.”

Elrod, not buying it, launched into an extraordinary counter-argument, comparing the federal government to the mob:

If you’ll excuse me, it’s like if somebody is in these movies that we see with the mob or something. They don’t say and spell out things, but they have these ongoing relationships, and they never actually say, “Go do this or else you are going to have this consequence.” But everybody just knows…

I’m certainly not equating the federal government with anybody in illegal organized crime. But… there are certain relationships where people know things without always saying the “or else.”

Willett put the mob analogy in even plainer language, saying the government’s behavior was a “fairly unsubtle kind of strong-arming,” as in, “That’s a really nice social media platform you got there. It’d be a shame if something happened to it.”

Then our lawyer John Sauer’s took his turn delivering a barrage of evidence and pointed arguments like a caped crusader making short work of helpless thugs:

In the court gallery a few clerks winced at one another at certain points of Tenny’s address, the way people do at boxing matches when someone walks into a face shot. The effect got worse when Tenny walked off and a furious Sauer addressed the judges. While Tenny rambled and spoke in generalities, the loquacious, bespectacled Sauer — who appears descended from some ancient God of rage — tore into the government’s arguments with ferocity and specificity. Judges tried at various points to challenge him, but he kept hurling cites back so fast the queries got lost.

“I would direct the court’s attention to pages 70 to 75 and 80 to 86 of the District court’s opinion,” he’d say, “where he makes specific findings resulting in the conclusion that CISA and the Election Integrity Partnership were, quote, ‘completely intertwined…’”

Taibbi then placed the significance of this case into context, explaining why the case will almost certainly end up at the Supreme Court:

Missouri v. Biden is fast becoming the vehicle through which a diverse series of recent disclosures about government censorship, including the Twitter Files reports, is likely to be litigated at a national level. What was pooh-poohed as conspiracy theory even a year ago is now a cat-hair away from being addressed and potentially proscribed by the country’s highest court. For the issue to get there at all would in itself represent an incredible journey, but signs continue to accumulate that a rare major judicial reprimand of the intelligence and enforcement communities could actually happen, and soon, too.

It would be a mistake to read too much into hearings like yesterday’s. One never knows how judges will rule, even when they appear to show emotion and inclination in court. Sometimes, they’re playing Devil’s advocate. The appellate panel, charged with deciding whether or not to reinstate Doughty’s sweeping order, could easily surprise those who attended and rule against the plaintiffs. Either way, an answer is expected soon. Attorneys present gave estimates ranging from a few weeks to two months for the panel to rule on yesterday’s issue.

A crucial fact of this case, however, is that Doughty’s July 4th order has created a motivation for both sides to push forward to the Supreme Court as soon as possible. Doughty’s ruling, which described the current Internet censorship regime as “arguably… the most massive attack against free speech in United States history,” essentially said that the damage from current government-influenced content moderation schemes may be so extreme that they must be completely enjoined until courts can determine how bad they are. That ruling was a major victory for the plaintiffs, and if the July 14th stay by the Fifth Circuit Court of Appeals remains in place, the plaintiffs will almost certainly appeal right away to a higher court in hopes of restoring their big win.

If the plaintiffs prevail, on the other hand, Doughty’s order will go back in force and the government will essentially be barred from meddling in the speech landscape. The administration has already argued on paper that this can’t be tolerated for any length of time, as any inability to pursue these “initiatives to prevent grave harm to the American people and our democratic processes,” causes the state “irreparable harm.” A more cynical interpretation might be that the “irreparable harm” is the prospect of the administration going without nuclear opinion-managing tools heading into an election year. Either way, a loss on the stay question will similarly motivate the administration to push for immediate Supreme Court consideration.

That’s all for now, folks. I will update you as soon as we get a ruling from the 5th Circuit. I remain optimistic that an eventual win at the Supreme Court will be the first major step toward completely dismantling the government’s censorship leviathan and restoring First Amendment free speech rights for all Americans.

Thank you for your continued support.

Reprinted from the author’s Substack