A federal appeals court on Thursday (Aug 10) appeared sceptical of the Biden administration's bid to reverse a court order sharply limiting its ability to ask social media companies to remove content that it considers to be misinformation.
Daniel Tenny, a lawyer with the US Department of Justice, told a three-judge panel of the 5th US Circuit Court of Appeals in New Orleans that US officials never forced social media companies to remove posts about Covid-19, the 2020 election and other topics, as Louisiana and Missouri claimed in a lawsuit. Instead, he said, the government had informed the companies of certain posts that spread harmful misinformation.
But Circuit Judge Jennifer Walker Elrod said that "irate" messages from officials taking social media companies to task for not removing certain posts quickly enough suggested "a very close working relationship" between the government and the companies.
"It's like a supervisor complaining about a worker," she said.
Circuit Judge Don Willett said public statements by Biden officials suggesting that social media companies could face antitrust enforcement, or lose immunity from certain lawsuits under federal law, could be seen as threats.
"That's a really nice social media platform you got there — it would be a shame if something happened to it," Willett said, describing what he saw as the statements' tone.
Elrod and Willett, along with the third member of the panel, Circuit Judge Edith Brown Clement, were all appointed by Republican presidents.
Tenny countered that the social media companies mentioned in the lawsuit, including Meta Platform's (META.O) Facebook, Alphabet Inc-owned YouTube and Twitter, now known as X Corp, regularly refused government requests to remove content.
"The notion that the social media companies felt they had to bend to the FBI's will when half the time they didn't - it doesn't fit any of these theories," he said.
John Sauer, a lawyer for the states, compared the administration's efforts to the government pressuring publishers to hold mass book burnings.
He said that the social media companies gave in to "unrelenting pressure from the most powerful office in the world."
The administration is appealing a July 4 ruling, in which US District Judge Terry Doughty sided with the states in finding that the government engaged in an "Orwellian" programme to suppress opposing views, including those questioning the efficacy of mask mandates and lockdowns to fight Covid and the outcome of the 2020 presidential election, which Democrat Joe Biden won over Republican incumbent Donald Trump.
The Trump-appointed judge, whose courthouse in Monroe has become a favoured venue for Republican challenges to Biden's policies, said the "widespread censorship campaign" violated the US Constitution's First Amendment's free speech guarantees.
He barred government agencies, including the Department of Health and Human Services and the Federal Bureau of Investigation, from talking to social media companies to seek the removal or suppression of content containing protected free speech, with narrow exceptions.
The order is currently on hold while the 5th Circuit considers the administration's appeal.
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