The Background Doctrine
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.” 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,—“must in law be deemed to be that of the State.” This is known as the close nexus test....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. --p. 28-29
Encouragement
We start with encouragement. To constitute “significant encouragement,” there must be such a “close nexus” between the parties that the government is practically “responsible” for the challenged decision....[S]ignificant encouragement requires“[s]omething more” than uninvolved oversight from the government. After all, there must be a “close nexus” that renders the government practically “responsible” for the decision. Taking that in context, we find that the clear throughline for encouragement in our caselaw is that there must be some exercise of active (not passive), meaningful (impactful enough to render them responsible) control on the part of the government over the private party’s challenged decision. Whether that is (1) entanglement in a party’s independent decision-making or (2) direct involvement in carrying out the decision itself, the government must encourage the decision to such a degree that we can fairly say it was the state’s choice, not the private actor’s. [citing a case that held that "significant encouragement is met when 'the state has has some affirmative role, albeit one of encouragement short of compulsion,' in the decision.]
....
[In summary]:For encouragement, we read the law to require that a governmental actor exercise active, meaningful control over the private party’s decision in order to constitute a state action. That reveals itself in (1) entanglement in a party’s independent decision-making or (2) direct involvement in carrying out the decision itself.
Coercion
p. 33: "Next, we take coercion—a separate and distinct means of satisfying the close nexus test. Generally speaking, if the government compels the private party’s decision, the result will be considered a state action. So, what is coercion? We know that simply “being regulated by the State does not make one a state actor.” Coercion, too, must be something more. But, distinguishing coercion from persuasion is a more nuanced task than doing the same for encouragement. Encouragement is evidenced by an exercise of active, meaningful control, whether by entanglement in the party’s decision-making process or direct involvement in carrying out the decision itself. Therefore, it may be more noticeable and, consequently, more distinguishable from persuasion. Coercion, on the other hand, may be more subtle. After all, the state may advocate—even forcefully—on behalf of its positions....
The Second Circuit starts with the premise that a government message is coercive—as opposed to persuasive—if it “can reasonably be interpreted as intimating that some form of punishment or adverse regulatory action will follow the failure to accede to the official’s request.”
....
Again, honing in on whether the government “intimat[ed] that some form of punishment” will follow a “failure to accede,” we parse the speaker’s messages to assess the (1) word choice and tone, including the overall “tenor” of the parties’ relationship; (2) the recipient’s perception; (3) the presence of authority, which includes whether it is reasonable to fear retaliation; and (4) whether the speaker refers to adverse consequences.
So, what do y'all think about Missouri v. Biden? Was the involvement of the White House significant enough to constitute state action by a close nexus amounting to encouragement? Coercion?
See page 61-62:
But, the Supreme Court has rarely been faced with a coordinated campaign of this magnitude orchestrated by federal officials that jeopardized a fundamental aspect of American life. Therefore, the district court was correct in its assessment—“unrelenting pressure” from certain government officials likely “had the intended result of suppressing millions of protected free speech postings by American citizens.”
And notice also that when government censors speakers it also censors everyone who was denied access to the censored information. Everyone in this room who is on social media was denied the right to receive the information that was censored by this partnership between government and social media platforms.
The Supreme Court is going to decide this issue soon. We need clear guidance about when persuasion becomes coercion or encouragement.
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