Republicans claim Biden administration 'coerced' Facebook to take down content

Ahead of a key court hearing Thursday, Republicans have released a series of documents indicating that the Biden administration pressured Facebook to reduce or remove content related to the COVID-19 pandemic.

Rep. Jim Jordan, R-Ohio, has deemed these releases the “Facebook Files,” and has promoted them on X, the social media platform formerly known as Twitter. Jordan’s branding is an effort to link them to the “Twitter Files,” a series of internal documents released by Elon Musk’s X this past winter that were extensively covered by conservative media.

Jordan has claimed that the pressure from Biden administration officials on Facebook — primarily in 2021 — rises to the level of government coercion of private companies and is a violation of the First Amendment.

However, court decisions in recent years have established that coercion requires the threat of state power. The lack of any specific threats in the Biden administration messages would make it hard for Jordan to prove his case in court.

Republicans also widely claim that the actions of social media companies to remove, label or restrict content is censorship. But what legal precedent there is would support the opposite conclusion — that companies have a First Amendment right to “editorial discretion,” to control what speech appears or does not appear on their property.

What are the 'Facebook Files'?

For the last two weeks, Jordan — who chairs the House Oversight Committee — has released a series of internal communications between Facebook and the Biden White House, mostly from 2021.

The documents were obtained after Jordan used his power as House Oversight Chairman to insist that Mark Zuckerberg, the CEO of Facebook’s parent company, Meta, be held in contempt of Congress if Meta did not provide documents requested by the committee.

The documents show ongoing and extensive discussions between White House officials and Facebook executives about content related to COVID-19 in the spring and summer of 2021, as the Biden administration was promoting the vaccine developed under the Trump administration.

“Can someone quickly remind me why we were removing — rather than demoting/labeling — claims that Covid is man made before May?” Nick Clegg, Meta’s president of global affairs, wrote on July 14, 2021, to several Facebook officials.

Clegg, a former deputy prime minister of the United Kingdom, was referring to the contested theory that COVID-19 was developed and accidentally released by the Chinese government.

A colleague not identified in Jordan’s document wrote back: “Because we were under pressure from the administration and others to do more," adding, "We shouldn’t have done it. We stopped removing [it] in May.”

That exchange illustrates the dynamic at play in all the communications. Biden officials aggressively pressed Meta and Facebook to restrict the spread, or remove altogether, posts from Robert F. Kennedy Jr., Tucker Carlson and others, arguing that the content violated Facebook’s own standards.

Facebook often resisted, but tried to placate the administration when it could.

Even those who say the government should communicate robustly with tech companies about their content decisions have said that Biden officials behaved improperly.

“The government should not be pressuring websites over speech,” wrote Mike Masnick at Techdirt.com.

But Jordan has argued that the documents “prove that the Biden [administration] abused its powers to coerce Facebook into censoring Americans.”

This is an area of the law that is still in flux. Some legal precedent, however, suggests that the Biden administration did not violate the First Amendment rights of Facebook users unless it also threatened the platform with retaliation.

“A public-official defendant who threatens to employ coercive state power to stifle protected speech violates a plaintiff’s First Amendment rights,” the 7th Circuit Court of Appeals ruled in 2015.

Jordan, meanwhile, is still saying that executives at Meta, Facebook's parent company, could be held in contempt if it does not cooperate.

“Contempt is still on the table and WILL be used if Facebook fails to cooperate in FULL,” he wrote on X on July 27.

The 5th Circuit Court hearing

Jordan’s Facebook Files gambit comes ahead of the latest court hearing on these issues.

On Thursday, a three-judge panel from the 5th Circuit is scheduled to review a ruling handed down July 4 by federal Judge Terry Doughty, of the U.S. District Court for the Western District of Louisiana.

Doughty, an appointee of former President Donald Trump, found that the Biden administration had created “a federal regime of mass censorship” that was biased against conservatives. Doughty ruled in favor of a lawsuit brought by the states of Missouri and Louisiana against the Biden administration.

But Doughty’s ruling was halted by the 5th Circuit Court of Appeals, which granted a request for a temporary stay of the decision while it is appealed. The 5th Circuit is considered to be one of the most conservative federal appeals courts in the country.

Doughty’s ruling has been widely criticized for his very broad definition of what “coercion” means. The judge interpreted public statements in the media by government officials as coercive of social media companies.

But in March, the 9th Circuit Court of Appeals in San Francisco tossed out a lawsuit suing Twitter for removing a user who made false claims about the outcome of the 2020 election, after the account was flagged by the California Secretary of State’s office.

The 9th Circuit found in O’Handley v. Weber that “agencies are permitted to communicate in a non-threatening manner with the entities they oversee without creating a constitutional violation.”