Pressure on Social Media Without Threats Isn’t Coercion, Says DOJ Lawyer

5th U.S. Circuit Court of Appeals Judge Don Willett confronted DOJ attorney Daniel Tenny with questions during oral argument rebuttal Thursday (see 2308100066) about the distinctions between outright government threats to pressure social media to censor content, as would be barred by the district court’s July 4 injunction, and more subtle forms of persuasion that may or may not be barred. The injunction is stayed, pending DOJ’s 5th Circuit appeal, and the government is asking the court to reverse it. Willett, a President Donald Trump 2018 appointee, specifically asked Tenny for DOJ’s view on whether President Joe Biden’s July 2021 statement that social media platforms were “killing people” by spreading COVID-19 vaccine disinformation was the type of government rhetoric that the injunction would prevent. There was “no threat in that statement,” said Willett, but it was “powerful nonetheless.” Tenny agrees that “it may be a powerful statement,” he told Willett. “So the legal question then would be, is it proper for a district court to say that the president can’t make powerful statements, trying to persuade the public what people should or should not do?” It’s correct that Biden isn’t subject to the injunction, said Tenny. But if a White House press secretary “said that about the president’s views, that would be subject to it,” he said. “It’s extraordinary to say, if the president’s view is that certain conduct of disseminating information is harming the public safety of the United States of America, that the press secretary cannot express that view,” he said. If statements like those are backed by a threat, “that’s different,” he said. “But that’s not what happened in this case,” he said.