The Constitution and "State Action"

 "The Constitution is not the law that governs us. [It] is the law that governs those who govern us." --Randy Barnett 

Here is how the casebook explains this concept at p. 1133:

Introduction to the State Action Concept. With the exception of the thirteenth amendment the Constitution is a restraint on governmental action and does not provide one private  citizen with rights against another. The Bill of Rights restrains the action of the federal  government. The fourteenth amendment provides that “no state shall” deprive  any  person  of  due   process  or  equal  protection.  The  fifteenth  amendment prohibits denial of voting rights “by  the United States or by any State. . . . ” The same verbal formula  appears in the voting right protections of the nineteenth, twenty-fourth and twenty-sixth amendments.

We will take only a very brief look at this concept. In most constitutional cases that arise, it is clearly the state that is acting in a way that raises issues of unconstitutionality. In my opinion, the most difficult issue today is whether there is state action when government partners with social media platforms to censor speech that government dislikes. The recent partnership between government and social media giants to censor accurate information about public health measures concerning covid is one huge area of concern. So too is the partnership between government officials and social media giants to censor the Hunter Biden laptop story in order to lock-down truthful information harmful to the Biden 2020 presidential campaign.

We will only scratch the surface of the state action doctrine, but I want to make sure you are aware of this issue and can spot it when it arises. 

But here is how to think about this.  Suppose I am an op-ed reporter for the New York Times. My editor, Perry White, asks me to write an editorial on the 303 Creative case. I write a great piece arguing that the public accommodations law as applied to wedding artists constitutes unconstitutional viewpoint-based compelled speech. Mr. White refuses to publish my piece, because he disagrees with my viewpoint. Does the Free Speech Clause apply?

But now assume that the government has passed a law forbidding the publication of any article that in any way criticizes public accommodation laws. Now does the First Amendment apply?

Now think about government pressure on Twitter to censor tweets criticizing government lockdowns and mask mandates. Or government pressure on social media platforms (during the 2020 presidential election season) to censor as "disinformation" the true story about Hunter Biden's laptop and the Biden family's lucrative business relationships with Ukraine and China? State action? How much pressure or encouragement to censor is sufficient to recognize private action state action.?