An awkward moment in the Missouri v. Biden case highlighted how the administration sure didn’t like Internet censorship, when they were on the business end of it
One of the more brutal legal self-owns you’ll see took place in yesterday’s hearing in the Missouri v. Biden Internet censorship case, in the 5th Circuit Court of Appeals in New Orleans. For more about the hearing generally, click here, but one moment stood out.
Administration lawyer Daniel Bentele Hahs Tenny was under fire all day from judges who appeared unconvinced — or at least in a mood to debate the point — that statements from White House officials about content like, “[I’m] wondering if we can get moving on the process of having it removed ASAP” do not constitute coercion. At one point Tenny was among other things saying the state couldn’t be coercing social media companies if, for instance, the FBI only succeeded in getting material taken down 50% of the time. “The idea that social media companies had to bend to the FBI’s will, when half the time they didn’t, just doesn’t support those theories.”
This inspired the following exchange between Tenny and Judge Don Willett:
WILLETT: Does coercion necessarily entail a threat, either overt or covert? Isn’t a directive itself enough to constitute unconstitutional coercion, absent an “or else” consequence?
TENNY: I guess I’m not sure what a directive means without a threat like—
WILLETT: “Do this, why haven’t you done this? Get this done. F-bomb do this.”
Willet was referring to a series of emails that included a July 15, 2021 communication from White House official Rob Flaherty reading, “Are you guys fucking serious? I want an answer on what happened here and I want it today”:
