5th Circuit Judges Liken Government To Mob, Say It ‘Strong-Armed’ Social Media Companies

Biden social media case. TPM Illustrations/Getty Images
Start your day with TPM.
Sign up for the Morning Memo newsletter

A panel of judges Thursday invoked the mob in describing the federal government’s behavior and accused it of “strong-arming” social media companies, using “not-so-veiled threats” and holding “secret meetings.” The bizarre rhetoric came in oral arguments over a district court decision that barred wide swaths of the government from flagging misinformation to social media companies. 

The lower-court decision, handed down by Donald Trump-appointed District Court judge Terry Doughty, was an exercise in right-wing punditry, as he called the government’s interactions with the companies perhaps “the most massive attack against free speech in United States’ history.” He added that during the pandemic, the government “assumed a role similar to an Orwellian ‘Ministry of Truth.’”

Much of the evidence mustered by the red state attorneys general who brought the case and seized on by Doughty consists of government officials flagging misinformation — mostly related to COVID-19 and vaccinations — and asking the tech companies to remove it. 

The Fifth Circuit panel handling the arguments on appeal — featuring Judges Jennifer Elrod, Edith Brown Clement and Don Willett, all appointed by Republican presidents — sounded inclined to adopt Doughty’s perspective Thursday afternoon.

Elrod was in an extended back and forth with the Department of Justice’s Daniel Tenny about how explicitly threatening the government had to be in its communications with the social media when she made a comparison to the mob.

“I’m certainly not equating the federal government to this, but this is an analogy — probably an inapt analogy so if you’ll excuse me,” she began. “In these movies that we see with the mob or something — they don’t say and spell out things but they have these ongoing relationships. 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,” she added hastily. “But there are certain relationships that people know things without always saying the ‘or else.’”

Despite her handwashing, her colleague seemed on much the same page.

“Here you have government in secret, in private, out of the public eye, relying on, as Judge Elrod described, fairly unsubtle strong-arming and veiled or not-so-veiled threats,” Judge Willett followed up. “‘That’s a really nice social media platform you got there — it’d be a shame something were to happen to it.’” 

Willett seemed to expand his definition of a threat even further later in the proceedings, after Tenny argued that many of the seemingly damaging quotes from government officials that Louisiana and Missouri cite were taken out of context.

“What about the President’s own comments — that social media platforms are ‘killing people,’” Willett rebutted. “No threat in that statement, but powerful nonetheless.” 

Tenny began his response slowly.

“So the legal question, then, would be ‘is it proper for a district court to say the President can’t make powerful statements trying to persuade the public about what people should or should not do?’” he said. 

Missouri Solicitor General John Sauer — who opened his remarks with a hypothetical in which the government directs book sellers to partner with it in an book burning program for tomes critical of the administration — approvingly referred back to some of the judges’ comments throughout the arguments. 

“When the platforms make decisions, it has to be relieved from the boot of federal pressure and federal coercion that was going back to 2017 in this case, including threats, secret meetings, to Judge Willett’s point,” Sauer said.

The case will almost certainly be appealed to the Supreme Court, completing the circuit of right-wing, anti-administration lawsuits that has become ubiquitous: right-wing district court to ultra-conservative 5th Circuit to the 6-3 conservative majority Supreme Court.  

Latest News

Notable Replies

  1. Avatar for tsp tsp says:

    The disingenuousness of the 5th Circuit Judges in their rhetoric is staggering!

  2. So, having the government advise social media companies about lies and propaganda being spread on their platforms that are killing people is equivalent to a mob boss telling an underling to “take care” of someone they don’t like? I mean, how is this even stated in a serious judicial forum? The absurdity of it really is astounding, it’s just hard to believe that anyone could really believe that telling people information that could kill them should be protected from government advising people of the facts.

    If this actually became policy, then the government could be blocked from sharing the facts about scientific discoveries, medical advancements, or even safety bulletins…after all, if you think that you know better than the government about driving through flooded streets then it impinges on your freedom to have them try to stop you. The judges should know better than to play with this fire, they are setting up a system where the government can’t fight back against lies and propaganda spread by right wing sources…note that they are just fine with that, I’m sure they would find a way to rule the opposite way if it was a Republican government trying to stomp out left wing statements. Though, that would probably be the same as in this case, as the Republican government would be declaring climate change wasn’t real while left wingers were sharing scientific data and information about what’s actually happening.

    Really, the 5th Circuit needs to be fixed, stuff like this shows they are just a propaganda mill for crazy conservative ideas…hopefully Biden can get some nominations onto the bench there to cut down on the nonsense.

  3. Avatar for tsp tsp says:

    Or finding 11,000 votes to reverse the outcome of an election.

  4. Avatar for cinfl cinfl says:

    This is where we are when a firmly stated false narrative holds the same weight had the truth.

Continue the discussion at forums.talkingpointsmemo.com

67 more replies


Avatar for discobot Avatar for lestatdelc Avatar for runfastandwin Avatar for tsrthomas Avatar for jcs Avatar for littlegirlblue Avatar for spiderpig Avatar for trnc Avatar for patterman Avatar for becca656 Avatar for sniffit Avatar for tacoma Avatar for sparrowhawk Avatar for drriddle Avatar for tsp Avatar for smoscom Avatar for jmacaz Avatar for sydneyp22 Avatar for ekcambridge Avatar for victor_seastrom Avatar for 19tibekius6 Avatar for evave2 Avatar for chasfy Avatar for old_guru

Continue Discussion
Masthead Masthead
Founder & Editor-in-Chief:
Executive Editor:
Managing Editor:
Associate Editor:
Editor at Large:
General Counsel:
Head of Product:
Director of Technology:
Associate Publisher:
Front End Developer:
Senior Designer: