A three-judge panel of the 5th U.S. Circuit Court of Appeals heard oral arguments Thursday in a free speech case involving the federal government and social media censorship during the COVID-19 pandemic.
The U.S. Department of Justice asked the three judges to lift a lower court order that bans the Biden administration and several federal agencies from contact with social media companies.
Daniel Tenny, an attorney with the Justice Department, said during arguments in front of Judges Edith Brown Clement, Jennifer Walker Elrod and Don R. Willett that the theory that the federal government coerced social media “falls apart on the facts.”
He also said that the plaintiffs admitted in earlier briefs that an injunction ordered by U.S. District Court Judge Terry Doughty on July 4 would prevent the federal government from asking social media companies to remove “untrue statements” during a natural disaster.
He also said they admitted the government would be prohibited from alerting social media companies about posts that could be part of a criminal conspiracy regarding human trafficking.
The Department of Justice attorney also said the district courts seem to credit that some of the efforts of the federal government was engaged in with regard to COVID-19 are no longer ongoing.
“I’d like to just point out the chronological point we made in our brief: Twitter and the other social media companies adopted policies in 2020 about COVID misinformation,” Tenny said. “And they (the plaintiffs) say this is attributable either to a White House pressure campaign that began in 2021, which is obviously not true.”
Louisiana Solicitor General Liz Murrill said the “digital warfare in this case is one of the most massive attacks on free speech rights in American history.” She also said that the censorship regime injures the states because of the “interference with our ability to have a process for our people to organize and petition the government for grievances.”
The May 2022 lawsuit was brought by Louisiana Attorney General Jeff Landry and Missouri Attorney General Eric Schmitt over what the two prosecutors say is the Biden administration’s censorship of conservative views on social media during the COVID-19 pandemic.
Doughty’s order prevents the Department of Health and Human Services, National Institute of Allergy and Infectious Diseases, Centers for Disease Control and Prevention, U.S. Census Bureau, FBI, U.S. Department of Justice and members of the president’s executive office from having any discussions with social media companies about “encouraging, pressuring, or inducing in any manner the removal, deletion, suppression, or reduction of content containing protected free speech.”
