A federal appeals court displayed hesitancy on Thursday in overturning a lower court’s ruling, which had placed constraints on the Biden administration’s ability to collaborate with social media companies on content moderation. This reluctance led one judge to draw an analogy to a “mob,” albeit clarifying that this was not a comparison to “illegal organized crime.”
The U.S. Court of Appeals for the 5th Circuit convened a three-judge panel to deliberate the administration’s appeal against a preliminary injunction issued by a federal district judge on July 4. The lower court ruling, delivered by U.S. District Judge Terry Doughty, caught the government off guard, asserting that the federal government had made an error by urging major social media companies to suppress specific political viewpoints.
Judge Doughty’s decision was a victory for Republican attorneys general from Louisiana and Missouri, who contended that conservative speech, especially related to the pandemic, was unfairly censored on social media platforms. Doughty characterized the situation as “Orwellian.” The government, dissatisfied with the ruling, launched an appeal, which was argued before a panel comprising Edith Clement, Jennifer Elrod, and Don Willett—all appointees of Republican presidents.
Elrod, appointed during George W. Bush’s presidency, introduced a striking analogy to illustrate a point but explicitly stated that she was not equating the government with any “illegal organized crime.” She elucidated, “I’m not comparing the federal government to this scenario, but think of it like scenes in mob movies where certain things are implied without being explicitly stated. There’s a sort of ongoing understanding, and while I’m absolutely not comparing the federal government to any illegal activity, there are situations where people understand consequences without them always being spelled out.”
During the hearing, Daniel Tenny, an attorney representing the Justice Department, argued that Doughty’s injunction obstructed the government’s ability to combat misinformation during emergencies and encroached upon the government’s right to free speech.
Tenny explained, “Plaintiffs have argued, for instance, that if there were a natural disaster and false information damaging to the public was circulating on social media, the injunction would prevent the government from discouraging further dissemination of these incorrect statements.”
Doughty’s ruling pointed to government efforts that he deemed “Orwellian,” which began in 2019 when officials approached social media giants like Alphabet-owned YouTube, Meta’s Facebook, and Twitter (now known as X) to curtail the spread of what they considered misinformation.
Dean John Sauer, an attorney representing the states, emphasized that the “right to listen” held as much importance as the “right to speak.” Sauer underscored the plaintiffs’ stance that they had the right to engage with suppressed speakers, asserting, “These plaintiffs assert the right to listen, the right to hear from virtually all those voices that federal censorship silenced in this case.”
In response to a query from Judge Clement regarding the FBI’s actions, Sauer noted distinctions between the FBI and the White House, mentioning that “the FBI engaged in deception.” He proceeded to delve into the withheld information about the authenticity of Hunter Biden’s laptop.
On July 14, the appeals court temporarily suspended Judge Doughty’s injunction against the Biden administration. This injunction had barred numerous officials, including press secretary Karine Jean-Pierre and Health and Human Services Secretary Xavier Becerra, from interacting with various tech companies. Notably, the majority of the suppressed speech leaned towards the conservative end of the spectrum.
The government’s legal representatives urged the appeals panel to overturn Doughty’s order. In case of a contrary decision, they indicated the intent to request a 10-day stay to facilitate an appeal to the Supreme Court. The 5th Circuit now has the option to reinstate the judge’s order, extend the stay, or explore a middle ground between the two.
Following the oral arguments, Missouri Attorney Andrew Bailey, a Republican, issued a statement suggesting that the government’s stance implied that “COVID caused significant global changes, justifying government censorship.”
Bailey added, “Today’s arguments in Missouri v. Biden have reinforced what we’ve been asserting all along: the Biden Administration has relentlessly coerced and colluded with social media platforms to stifle free speech.”