A three-judge panel excoriated the 'mob-like' Biden administration over its 'strong-arm' tactics to bully social media companies into complying with censorship requests, which "time and time again" prove to be true.
The judicial smackdown took place during a Thursday hearing in front of the Fifth Circuit Federal Court of Appeals, which heard oral arguments over the administration's appeal of an injunction barring the US government from communication with social media giants in order to censor protected speech.
Representing the government was attorney Daniel Tenny - who had quite the trio of pissed off judges on his hands. At one point, Judge Jennifer Walker Elrod compared the Biden administration to the mafia before walking it back.
"In these movies that we see with the mob … they don’t say and spell out things, but they have these ongoing relationships," she said, adding "They never actually say ‘go do this or else you’re 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 that people know things without always saying the ‘or else,'" Elrod continued.
She had earlier noted that the Biden administration had a "very close working relationship" with social media giants, and browbeated them like "a supervisor complaining about a worker" until they got their way.
"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!’ — and that’s my toning down the language— ‘Why haven’t you done this yet?'” she said. “It’s like ‘jump’ and ‘how high?'" said Elrod.
Judges Edith Brown Clement and Don R. Willett were also obviously perturbed by the government's behavior - with Willett noting that the government operated "out of the public eye" via "unsubtle strong-arming and veiled or not-so-veiled threats."
"That’s a really nice social media platform you’ve got there, it would be a shame if something happened to it," he summarized, according to the Daily Caller.
Tenney goes on defense
Clearly sensing the judges' hostility, Daniel Tenny attempted to tap-dance his way out of claims of government overreach - saying: "The government is generically going to be angry" when companies refuse to take action, but that the communications show federal officials and social media giants alternating between "friendly" and "testy," as opposed to giving specific orders to comply "or else."
Judge Elrod wasn't buying it, calling the government's messages "irate" at times, and saying that they actually show high-ranking officials badgering counterparts about why they hadn't censored the material they wanted censored.
Elrod asked Tenney if high-level government officials had asked companies "in a coercive manner to propagate certain things that the government knew were untrue, and to deamplify certain things that it knew were true … but didn't fit its message, would that be able to be enjoined?"
To which Tenney said the question presumes that the government acted coercively - for which he says they had no factual evidence, and claimed that the Biden administration knows it can't unilaterally sidestep legal liability protections under Section 230 of the Communications Decency Act.
Elrod fired back, saying "Time and time again," what the government considers mis-, dis- and malinformation, "always with great fervor," turn out to be true. For example, the government's attempts by National Institutes of Health Director Francis Collins' attempts to issue a published takedown of the Great Barrington Declaration - an open letter by Sunetra Gupta of Oxford University, Jay Bhattacharya of Stanford, and Martin Kulldorff of Harvard - which challenged government lockdowns during the pandemic.
Tenney argued that the judges also couldn't consider a 'friend of the court' briefing by leading House Republicans - which includes members of the Judiciary and Weaponization of the Federal Government committees - which lays out how much of the "[v]ery recent evidence' their committees had obtained 'further corroborates' the basis for the injunction.
Tenney also argued that the plaintiffs don't have legal standing to bring the case, because conservative officials who claim that their own posts were censored didn't argue that they plan to make similar posts in the future - which would create "ongoing injury" from the censorship.
When asked by Judge Edith Brown Clement if the Biden administration is still communicating with social media giants, he admitted that they hadn't "entirely stopped," but dodged a question over whether they maintained "day-to-day involvement," according to Just the News.
Attorney John Sauer, representing the State of Louisiana, asked the judges what they would think of a senior White House staffer contacting Amazon, Barnes & Noble and other booksellers to participate in a "book-burning program" focused on authors who criticize the administration, with the companies only giving in after months of escalating White House rhetoric.
That's exactly what the White House did to compel platforms to remove and throttle the "most persuasive speakers" critical of its policies, such as former New York Times drug industry reporter Alex Berenson and former Fox News host Tucker Carlson, Sauer said.
Sauer added that the appellate court should indeed take "judicial notice" of the congressional amicus brief because there's no dispute on the authenticity of the newly identified communications and it "powerfully reinforces" the alleged coercion, such as a Facebook official suggesting the company back down because of "bigger fish we have to fry" with the administration. -JTN
According to Sauer, one of the individual plaintiffs, Health Freedom Louisiana co-director Jill Hines, claimed as recently as May that Facebook continues to remove groups she's created to protest COVID policies.
"This notion that COVID censorship is over is completely unsupportable," said Sauer.
