By the Government’s Own Definition, It’s Censoring
Key to Thursday’s arguments was the question of coercion: Did government demands of internet monopolies equal coercion, or were those merely officials advocating for their views?
“If the government was doing something like that in a coercive manner, then that could be the subject of a proper injunction,” Department of Justice lawyer Daniel Bentele Hahs Tenny told the court in his opening remarks. “The problem is that what you would have to do is say, ‘Here is what the government is doing that’s coercive, and I’m enjoining that.'”
Government Officials Treated Internet Monopolies Like Their Subordinates
The Fifth Circuit panel demonstrated familiarity with the numerous examples of this kind of government behavior, such as this email exchange between White House digital director Rob Flaherty and Facebook, in which Flaherty swears at Facebook engineers, “Are you guys f-cking serious? I want an answer on what happened here and I want it today.”
“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,’” Judge Jennifer Walker Elrod told Tenny. “And that’s my toning down the language. … So it’s like, ‘Jump!’ and, ‘How high?’”
The judges also noted the White House publicly threatened the business model of all online communications monopolies through potentially revoking Section 230 and launching antitrust lawsuits. The lawsuit documentation shows leading Democrats making the same public threats, including House Speaker Nancy Pelosi and multiple U.S. senators
Censorship Is Election Interference
The lead attorney for the plaintiffs, John Sauer, initiated this case as Louisiana’s solicitor general. In representing state government interests to the judges, he noted that elected officials have to pay attention to what their constituents are saying online, or they won’t have a good read on what voters what them to do in office.
“We’ve gotta be able to craft messages and know what policies we’re adopting to be responsive to our citizens,” he summarized from statements submitted to the court from multiple state officials. “…Going back to 1863, as everyone knows, going back to the Federalist number 56 where [Bill of Rights author James] Madison said it, everyone knows state legislators have a sovereign interest in knowing what their constituents think and feel, and that’s directly impacted.”
Democrats Want Free Speech for Themselves While Banning It for Their Enemies
The oral arguments also got into the FBI’s 2020 election interference in telling online monopolies that The New York Post’s reporting on Hunter Biden’s laptop was foreign disinformation. Tenny claimed the FBI refused to comment on the laptop because it was a pending investigation.
Yet the FBI and other federal intelligence agencies actually did comment on the laptop by calling it “foreign disinformation,” both privately to the internet monopolies and publicly. This was false, and the FBI knew it. The lower court ruled this deception constituted coercion because it caused people to act on false information.
