by Michael Nevradakis, Ph.D. The Defender
Asking the court to “imagine a scenario where senior White House staffers contact book publishers” to implement “a book-burning program,” Missouri Solicitor General D. John Sauer opened arguments Thursday for the plaintiffs in a landmark censorship case alleging U.S. government officials colluded with social media to censor content.
Thursday’s hearing before the 5th Circuit U.S. Court of Appeals in New Orleans, in Missouri et al. v. Biden et al., pertained to a temporary stay issued by the 5th Circuit July 14 — 10 days after Judge Terry Doughty of the U.S. District Court for the Western District of Louisiana Monroe Division issued an injunction barring federal agencies and several Biden administration officials from most communications with social media platforms.
The lawsuit, originally filed in May 2022 by the attorneys general of Missouri and Louisiana and several individual plaintiffs, alleges social media platforms censored views that ran counter to the official government narrative.
Children’s Health Defense (CHD) also requested an injunction in a similar case — Kennedy et al. v. Biden et al. — filed against White House officials.
Judge Doughty last month consolidated CHD’s case, a class action suit, “for all purposes,” including discovery of evidence.
Thursday’s three-judge panel — Judges Edith Brown Clement, Jennifer Walker Elrod and Don R. Willett — presided over Thursday’s proceedings.
Kim Mack Rosenberg, CHD acting general counsel who attended the hearing, described it as “exciting.”
“Not only was it hot outside, with temperatures over 100 degrees, the panel was ‘hot’ as well, actively volleying questions at counsel for both sides,” Rosenberg told The Defender.
Arguments focused on the extent to which the federal government coerced social media platforms into removing content that contradicted the government’s official COVID-19 policy narratives, the extent to which the July 4 injunction was “vague” or “overbroad” and issues regarding the standing of the two state plaintiffs, Missouri and Louisiana.
The judges did not rule from the bench Thursday. “While they did not announce a timeframe for a decision, the general feeling was that it would be soon,” Rosenberg told The Defender.
The U.S. Department of Justice (DOJ) attorney, Daniel Bentele Hahs Tenny, asked the court if it did lift the stay, to delay enforcement of the injunction for 10 days so the solicitor general could decide whether to appeal to the U.S. Supreme Court, Rosenberg said.
Following oral arguments, Missouri Attorney General Andrew Bailey issued a statement, saying that Tenny “seriously insinuated COVID caused a lot in the world to change, and thus, government censorship is permissible.”
“Today’s oral argument in Missouri v. Biden proved what we’ve known all along: the Biden administration has shamelessly and relentlessly coerced and colluded with social media platforms to censor free speech,” he added.
Republicans on the House Judiciary’s Select Subcommittee on the Weaponization of the Federal Government filed an amicus brief Monday in support of the plaintiffs, Fox News reported. The brief addressed government-coerced speech relating to “COVID … Biden Family influence peddling” and “elections.”
White House request to ‘take these people down’ likened to ‘book burning’
According to Rosenberg, Sauer provided the bulk of the plaintiffs’ argument Thursday. His opening argument asking the court to consider the book-burning metaphor is captured in the following three-minute audio clip:
The hypothetical scenario proffered by Sauer contained clear references to allegations made in the Missouri et al. v. Biden et al. lawsuit that White House officials told social media platforms they could face antitrust legislation and repeal of favorable legal provisions if they did not remove COVID-19 “misinformation.”
Sauer also alluded to “The Disinformation Dozen,” a list compiled by the Center for Countering Digital Hate, which included CHD founder and chairman on leave Robert F. Kennedy Jr. and others who questioned the establishment’s COVID-19 narratives.
The list was used by the White House to pressure Twitter (now X), prior to Twitter’s purchase by Elon Musk, to censor those individuals.
Describing this hypothetical scenario, Sauer told the court, “For example, one time they said, ‘Here’s 12 authors we want you to pull off the shelves and burn. These are the really bad ones. You’ve got to burn these books.’ And the book sellers probably said, ‘we don’t really want to do that.’”
Sauer continued:
“Two days later, the White House press secretary was at the podium and said ‘These booksellers need to burn more books, and the president supports a robust antitrust program to go after them.’ … And later they started sending emails that contained implied threatening communications.
“And then all of a sudden, in the middle of July 2021, there is a 1-2-3 public punch where the White House press secretary and the surgeon general stood at the podium and said, ‘These books are poison and we are going to hold you accountable.’ …
“And then a few days later, the White House communication secretary also goes public and she says ‘We’re exploring legal liability against you because you haven’t burned enough books, and we’re looking at repealing a piece of legislation that gives you a huge subsidy worth billions of dollars if you don’t burn more books.’”
“Suppose all the booksellers decided the game wasn’t worth a candle and they started complying,” Sauer said. “That’s exactly what you see here in the record in July 2021.”
“All of a sudden, after there’s those public threats combined with the private pressure campaign. … You see the platforms just giving in and you see them essentially from then on agreeing with whatever the White House and the surgeon general demanded on those particular issues,” he added.
Sauer referenced the examples of former New York Times journalist Alex Berenson, former Fox News personality Tucker Carlson and Kennedy, “who was booted off of Instagram,” to support his argument.
“The White House is privately saying, ‘take those people down,’” Sauer argued, saying that social media platforms were “under what the district court aptly described as unrelenting pressure from the most powerful office in the world.”
Sauer characterized this as “a targeting of specific speakers, specific content and specific viewpoints that’s been so widespread and so effective” and that has “fundamentally transformed online discourse on questions of absolutely overwhelming social and political significance.”
Was coercion explicit — or implicit?
At one point Thursday, Judge Willett asked Tenny to respond to whether the government was “strong-arming” social media platforms with “veiled threats” such as “that’s a really nice social media platform you got there. It’d be a shame if something happened to it.”
And Judge Elrod likened “irate emails” sent by the White House to social media platforms to a “very close working relationship” between the two, akin to that of “a supervisor complaining about a worker.”
“It’s like ‘Jump,’ and ‘How high?’” she said.
There were “explicit threats” from the White House that “were received as threats by the platforms” and to which “the platforms acted accordingly,” Sauer said, affirming Willett’s characterization.
Sauer also noted the timing of the government’s communications with social media.
“What the district court cited on this is the timing,” Sauer said, referring to Judge Doughty’s ruling. “When the feds are pushing them to take this stuff down, that’s when these posts get taken down.”
Tenny argued that social media companies were the ones “making determinations about what to include on their platforms and what algorithms to use to make some of it more prominent and less prominent,” claiming that “there’s basically no evidence in the record that this decision was coerced by anybody.”
Instead, Tenny claimed social media platforms “decided that they wanted, in some circumstances, to have those decisions be informed by government experts’ views about what was true or false or what was harmful or not harmful,” but that “doesn’t mean they were turning over the reins to the government.”
Tenny conceded, however, “Maybe sometimes the government is wrong.”
In remarks shared with CHD.TV following Thursday’s hearing, Louisiana attorney Shelly Maturin, who works with CHD on legal cases, said, “It was very interesting the way the justices focused on coercion and what coercion meant, and whether or not it was implicit or explicit.”
Maturin said that such coercion, even if implicit, carries more weight when coming from the government, as compared to a private actor.
“We [citizens] don’t have the same force and effect that the federal government does,” he said. “They quite literally have guns and put you in jail and other things that certainly would be intimidating to the regular citizen if you don’t comply with their requests.”
Words like ‘pressure, induce, encourage or urge’ have ‘very plain’ meanings
According to Rosenberg, “[Tenny] tried to argue that the injunction was both vague and overbroad, claiming that coercion or similar activity was very narrowly defined and that the exceptions to the injunction carved out by Judge Doughty were confusing.”
Sauer, in response, said that terms such as “pressure, induce, encourage or urge” have “very plain” meanings and are found in “foundational” Supreme Court rulings about state action.
While Tenny argued the social media platforms alone decided which content to remove, Sauer said prior Supreme Court decisions have found “even if the threat turns out to be empty or they [private actors] would’ve done it anyway … that’s still a violation of the First Amendment.”
Issues of standing also arose during the hearing — namely, arguments over whether Missouri and Louisiana have standing as plaintiffs in the lawsuit.
Tenny argued the two states have not stated any intention to make these similar, or any other posts [on social media] in the future. They would have to show, in order to have standing, that they have a future injury, ongoing injury attributable to government conduct.”
In response, Sauer said, “Two weeks ago, I gave a talk about this very case at NCLA [the New Civil Liberties Alliance] criticizing federal government censorship. It was taken down the next day by YouTube. I was censored as a lawyer. … Do not tell me that Louisiana doesn’t face ongoing censorship injuries.”
Rosenberg told The Defender “Sauer artfully explained — with four separate arguments — how the state plaintiffs had standing and noted that even he had been censored on social media only a few weeks prior.”
The arguments included: direct censorship of content state officials have posted on social media, censorship of constituents’ posts about “great issues of our day” that the state has a “sovereign interest in knowing,” “interference in our ability to have a fair and unbiased process for our people to organize and petition the government for grievances,” and a “quasi-sovereign interest against the federal government.”
Josh Divine, Missouri’s solicitor general, added “The federal government’s actions have harmed the ability of the states to operate as sovereigns,” citing examples where local and county meetings are being censored by social media platforms due to statements citizens made at such meetings.
Maturin noted that the few questions judges asked regarding standing likely indicate “their state of mind, where I don’t think they think standing is going to be an issue.”
Rosenberg told The Defender that states “have a sovereign interest in being able to hear what their constituents are saying and then to have … redress available to them.”
Social media followers of RFK Jr., Tucker Carlson suffered First Amendment harm
“We haven’t challenged what the platforms are able to do independently,” Sauer added. “Our argument is, when platforms make decisions, it has to be relieved from the boot of federal pressure and federal coercion that we see going back to 2017 in this case.”
“The Supreme Court has long recognized what James Madison said in Federalist No. 56 … government cannot function unless individuals are able to freely speak in the public square,” Divine argued. “It doesn’t matter whether this is on Twitter or TikTok or anywhere else. All of these are part of the public square.”
Divine also referred to a Supreme Court decision, Virginia State Pharmacy Board v. Virginia Citizens Consumer Council (1976), which “expressly recognizes … this First Amendment right to listen, to receive information,” adding that “the targeted audience is anybody on social media who wants to follow this.”
Examples cited by Sauer about how ordinary users of social media platforms were affected included the censorship of Carlson and Kennedy.
“The three million people who follow [Carlson] have a First Amendment injury because the right to listen is just as fundamental as the right to speak,” Sauer said. “When Robert F. Kennedy Jr. is booted off of Instagram because of [former White House press secretary] Jennifer Psaki’s demand … they’re just as injured under the First Amendment.”
Both sides also referenced the Great Barrington Declaration, with DOJ counsel arguing the White House called for a “takedown of its premises” but not the declaration itself, and Sauer countering that there were “explicit findings” showing the government sought to “silence and stifle” such speech.
Listen to the hearing here: