Perhaps the most important case now wending its way through the federal courts is State of Missouri v. Biden. In that case, the states of Missouri and Louisiana, along with individuals including Jay Bhattacharya and Jim Hoft, allege that various federal agencies violated their First Amendment rights by leaning on social media platforms to censor their speech. Yesterday, in a 3-0 decision, a panel of the Fifth Circuit Court of Appeals affirmed a district court decision in plaintiffs’ favor as to the White House, the FBI, the Centers for Disease Control and the Surgeon General, finding that those agencies improperly coerced social media platforms, including Facebook and Twitter, in violation of the Constitution. Scott wrote about the decision here.
The decision, which I think is impressively well-reasoned, is embedded below. I encourage you to read it; you probably can skip the lengthy discussion of standing. The starting point is that the Constitution constrains government, not private parties. So the question is, when does conduct undertaken by a private party (a social media platform) become state action for purposes of the First Amendment?
The opinion poses the question this way:
The government cannot abridge free speech. U.S. Const. amend. I. A private party, on the other hand, bears no such burden—-it is “not ordinarily constrained by the First Amendment.” Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921, 1930 (2019). That changes, though, when a private party is coerced or significantly encouraged by the government to such a degree that its “choice”—-which if made by the government would be unconstitutional, Norwood v. Harrison, 413 U.S. 455, 465 (1973)—-“must in law be deemed to be that of the State.” Blum v. Yaretsky, 457 U.S. 991, 1004 (1982); Barnes v. Lehman, 861 F.2d 1383, 1385–36 (5th Cir. 1988).9 This is known as the close nexus test.10
Under that test, we “begin by identifying ‘the specific conduct of which the plaintiff complains.’” Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 51 (1999) (quoting Blum, 457 U.S. at 1004 (“Faithful adherence to the ‘state action’ requirement . . . requires careful attention to the gravamen of the plaintiff’s complaint.”)). Then, we ask whether the government sufficiently induced that act. Not just any coaxing will do, though. After all, “the government can speak for itself,” which includes the right to “advocate and defend its own policies.” Southworth, 529 U.S. at 229; see also Walker, 576 U.S. at 207. But, on one hand there is persuasion, and on the other there is coercion and significant encouragement—-two distinct means of satisfying the close nexus test. See Louisiana Div. Sons of Confederate Veterans v. City of Natchitoches, 821 F. App’x 317, 320 (5th Cir. 2020) (per curiam) (“Responding agreeably to a request and being all but forced by the coercive power of a governmental official are different categories of responses . . .”). Where we draw that line, though, is the question before us today.
The court’s analysis is detailed, exhaustive, and, I think, fair. The great thing about this lawsuit is that the plaintiffs’ lawyers have done an excellent job of creating a factual record. They have the goods on the Biden administration. The communications that passed between government agencies, including the White House, and tech companies are damning. This case is obviously destined for the Supreme Court, but I am confident that the plaintiffs’ lawyers–I would credit them by name if I knew who has been doing the heavy lifting–have generated a record that will sustain a positive result. And for the moment, at least, we have a Supreme Court that believes in the Constitution and in free speech.
One last comment: The emails between government officials and employees of companies like Facebook and Twitter make depressing reading. I am sure that most, if not all, of these tech employees would describe themselves as independent free-thinkers. Perhaps as rebels, even radicals. And yet, when the Biden administration turned on the heat, they were toadies. The alacrity with which they jumped to do the government’s bidding can only remind one of compliant citizens of regimes in the 1930s that undertook to destroy civil rights and met with little opposition. This is perhaps due to the fact that they are products of our unbelievably bad education system, but that is a topic for another day.
Here is the opinion: