Say the government urges various intermediaries—bookstores, billboard companies, payment processors, social media platforms—to stop carrying certain speech. The government isn’t prosecuting them or suing them, just asking them. (This is in the news both with regard to the Biden Administration “flagging problematic posts for Facebook that spread disinformation” and Donald Trump’s lawsuits against Facebook, Twitter, and YouTube, to the extent they claim government officials’ speech pressured those platforms into blocking him.) Is such government urging constitutional?
[A.] Generally speaking, courts have said “yes, that’s fine,” so long as the government speech doesn’t coerce the intermediaries by threatening prosecution, lawsuit, or various forms of retaliation. (Indeed, I understand that government officials not uncommonly ask newspapers, for instance, not to publish certain information that they say would harm national security or interfere with an ongoing criminal investigation.) Here’s a sample of appellate cases so holding:
[1.] A New York City official sent a letter urging department stores not to carry “a board game titled ‘Public Assistance—Why Bother Working for a Living.’” The letter said the game “does a grave injustice to taxpayers and welfare clients alike,” and closes with, “Your cooperation in keeping this game off the shelves of your stores would be a genuine public service.” Not unconstitutional, said the Second Circuit in Hammerhead Enterprises, Inc. v. Brezenoff (1983):
[T]he record indicates that Brezenoff’s request to New York department stores to refrain from carrying Public Assistance was nothing more than a well-reasoned and sincere entreaty in support of his own political perspective…. Where comments of a government official 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, a valid claim can be stated…. [But] appellants cannot establish that this case involves either of these troubling situations.
[2.] The Attorney General’s Commission on Pornography sent letters to various corporations (such as 7-Eleven) urging them not to sell pornographic magazines:
The Attorney General’s Commission on Pornography has held six hearings across the United States during the past seven months on issues related to pornography. During the hearing in Los Angeles, in October 1985, the Commission received testimony alleging that your company is involved in the sale or distribution of pornography. The Commission has determined that it would be appropriate to allow your company an opportunity to respond to the allegations prior to drafting its final report section on identified distributors.
You will find a copy of the relevant testimony enclosed herewith. Please review the allegations and advise the Commission on or before March 3, 1986, if you disagree with the statements enclosed. Failure to respond will necessarily be accepted as an indication of no objection.
Please call Ms. Genny McSweeney, Attorney, at (202) 724-7837 if you have any questions. Thank you for your assistance.
Not unconstitutional, said the D.C. Circuit in Penthouse Int’l v. Meese (1991):
In our case, the Advisory Commission had no … tie to prosecutorial power nor authority to censor publications. The letter it sent contained no threat to prosecute, nor intimation of intent to proscribe the distribution of the publications…. And the Supreme Court has never found a government abridgement of First Amendment rights in the absence of some actual or threatened imposition of governmental power or sanction….
We do not see why government officials may not vigorously criticize a publication for any reason they wish. As part of the duties of their office, these officials surely must be expected to be free to speak out to criticize practices, even in a condemnatory fashion, that they might not have the statutory or even constitutional authority to regulate. If the First Amendment were thought to be violated any time a private citizen’s speech or writings were criticized by a government official, those officials might be virtually immobilized.
[3.] A New York state legislator and a New York Congressman accused X-Men Security, a security organization connected to the Nation of Islam, of various conspiracies, “ asked government agencies to conduct investigations into its operations, questioned X-Men’s eligibility for an award of a contract supported by public funds, and advocated that X-Men not be retained.” X-Men lost certain security contracts as a result. Not unconstitutional, said the Second Circuit in X-Men Security, Inc. v. Pataki (1999):
[J]ust as the First Amendment protects a legislator’s right to communicate with administrative officials to provide assistance in securing a publicly funded contract, so too does it protect the legislator’s right to state publicly his criticism of the granting of such a contract to a given entity and to urge to the administrators that such an award would contravene public policy. We see no basis on which X-Men could properly be found to have a constitutional right to prevent the legislators from exercising their own rights to speak.
[B.] On the other hand, where courts find that the government speech implicitly threatened retaliation, rather than simply exhorting or encouraging third parties to block speech, that’s unconstitutional. The Supreme Court case on that is Bantam Books, Inc. v. Sullivan (1963), where a state commission threatened to prosecute stores that sold books that it viewed as pornography (including books that were actually protected by the First Amendment). And lower court cases have applied that even absent express threat of prosecution, for instance:
[1.] The mayor and a trustee of a New York town sent a letter to a newspaper demanding to learn more about who was involved in an article critical of local officials. Potentially unconstitutional, the Second Circuit held in Rattner v. Netburn (1991):
Though the district court characterized the Netburn letter as simply a plea to the Chamber to rid itself of political affiliations, that letter stated that the recent Gazette “raises significant questions and concerns about the objectivity and trust which we are looking for from our business friends,” and it asked “[w]ho wrote” the questions and requested “a list of those members who supported the inclusion of this ‘article’.” Further, the record includes evidence that, when questioned about the letter, Netburn also stated that he had made a list of the local businesses at which he regularly shopped. The district court’s ruling that the language of the Netburn letter, either standing alone or in all the circumstances, is not a veiled threat of boycott or reprisal does not view that language in the light most favorable to Rattner as the nonmoving party….
[And] a threat was perceived and its impact was demonstrable. Several Chamber directors testified at their depositions that they viewed the letter as reminiscent of McCarthyism, threatening them with boycott or discriminatory enforcement of Village regulations if they permitted the publication of additional statements by Rattner; the Chamber member who had been “in charge of” the Gazette testified that following receipt of the Netburn letter, he had actually lost business and had been harassed by the Village.
Further, the Netburn letter caused the Chamber to cease publication of the Gazette; and it advised Rattner of this decision while concealing from him the fact that another issue would be forthcoming, in order to avoid having to publish in that issue material for which he had already paid. Thus, the fact that Netburn’s letter and statement “were not followed up with unannounced visits by police personnel” should hardly have been deemed dispositive since the Chamber immediately capitulated to what may reasonably be viewed as an implicit threat.
[2.] The President of the Borough of Staten Island sent a letter to a billboard company urging it to take down an anti-homosexuality billboard, which closed with:
Both you and the sponsor of this message should be aware that many members of the Staten Island community, myself included, find this message unnecessarily confrontational and offensive. As Borough President of Staten Island I want to inform you that this message conveys an atmosphere of intolerance which is not welcome in our Borough.
P.N.E. Media owns a number of billboards on Staten Island and derives substantial economic benefits from them. I call on you as a responsible member of the business community to please contact Daniel L. Master, my legal counsel and Chair of my Anti-Bias Task Force … to discuss further the issues I have raised in this letter.
Potentially unconstitutional, the Second Circuit held in Okwedy v. Molinari (2003):
In the present case, a jury could find that Molinari’s letter contained an implicit threat of retaliation if PNE failed to accede to Molinari’s requests. In his letter, Molinari invoked his official authority as “Borough President of Staten Island” and pointed out that he was aware that “P.N.E. Media owns a number of billboards on Staten Island and derives substantial economic benefits from them.” He then “call[ed] on” PNE to contact Daniel L. Master, whom he identified as his “legal counsel and Chair of my Anti-Bias Task Force.”
Based on this letter, PNE could reasonably have believed that Molinari intended to use his official power to retaliate against it if it did not respond positively to his entreaties. Even though Molinari lacked direct regulatory control over billboards, PNE could reasonably have feared that Molinari would use whatever authority he does have, as Borough President, to interfere with the “substantial economic benefits” PNE derived from its billboards in Staten Island.
[3.] The Sheriff of Cook County (Illinois) sent letters to Mastercard and Visa saying,
As the Sheriff of Cook County, a father and a caring citizen, I write to request that your institution immediately cease and desist from allowing your credit cards to be used to place ads on websites like Backpage.com [which hosted ads for sex-related services].
Potentially unconstitutional, the Seventh Circuit held in Backpage.com, LLC v. Dart (2015); the court went through the Sheriff’s letter in detail, and concluded:
And here’s the kicker: “Within the next week, please provide me with contact information for an individual within your organization that I can work with [harass, pester] on this issue.” The “I” is Sheriff Dart, not private citizen Dart — the letter was signed by “Thomas Dart, Cook County Sheriff.”
And the letter was not merely an expression of Sheriff Dart’s opinion. It was designed to compel the credit card companies to act by inserting Dart into the discussion; he’ll be chatting them up.
Further insight into the purpose and likely effect of such a letter is provided by a strategy memo written by a member of the sheriff’s staff in advance of the letter. The memo suggested approaching the credit card companies (whether by phone, mail, email, or a visit in person) with threats in the form of “reminders” of “their own potential liability for allowing suspected illegal transactions to continue to take place” and their potential susceptibility to “money laundering prosecutions … and/or hefty fines.” Allusion to that “susceptibility” was the culminating and most ominous threat in the letter.
[C.] Does it matter whether the government acts systematically, setting up a pipeline for requests to the media? One can imagine courts being influenced by this, as they are in some other areas of the law; but I know of no First Amendment cases so holding.
[D.] Now in some other areas of constitutional law, this question of government requests to private actors is treated differently, at least by some courts. Say that you rummage through a roommate’s papers, find evidence that he’s committing a crime, and send it to the police. You haven’t violated the Fourth Amendment, because you’re a private actor. (Whether you might have committed some tort or crime is a separate question.) And the police haven’t violated the Fourth Amendment, because they didn’t perform the search. The evidence can be used against the roommate.
But say that the police ask you to rummage through the roommate’s papers. That rummaging may become a search governed by the Fourth Amendment, at least in the eyes of some courts: “the government might violate a defendant’s rights by ‘instigat[ing]‘ or ‘encourag[ing]‘ a private party to search a defendant on its behalf.”
Likewise, “In the Fifth Amendment context, courts have held that the government might violate a defendant’s rights by coercing or encouraging a private party to extract a confession from a criminal defendant.” More broadly, the Supreme Court has said that “a State normally can be held responsible for a private decision only when it has exercised coercive power or has provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the State.”
So maybe there’s room for courts to shift to a model where the government’s mere encouragement of private speech restrictions is enough to constitute a First Amendment violation on the government’s part.
[E.] One more twist, relevant to the Trump lawsuits: Say that the government is found to have coerced a private entity into restricting plaintiff’s speech. Can plaintiff sue the private entity, or can he just sue the government?
It might be quite sensible to say that the private entity is the victim of government coercion, and shouldn’t be blamed for going along with it. After all, if you are free to do something on your own, and you do it, you couldn’t be sued. Why should the government’s coercion that forces you to do something that you have the right to do on your own make you liable (as opposed to making the government liable)?
Yet there’s at least a plausible argument that the coerced intermediary could indeed be sued. See Adickes v. S.H. Kress & Co. (1970) (concluding that “the decision of an owner of a restaurant to discriminate on the basis of race under the compulsion of state law offends the Fourteenth Amendment”); Skinner v. Railway Labor Executives’ Ass’n (1989) (“A railroad that complies with the provisions of Subpart C of the regulations [requiring drug testing of certain employees] does so by compulsion of sovereign authority, and the lawfulness of its acts is controlled by the Fourth Amendment.”); Carlin Communications, Inc. v. Mountain States Tel. & Tel. Co. (9th Cir. 1987) (“With this threat [of prosecuting defendant for allowing plaintiff's dial-a-porn], Arizona ‘exercised coercive power’ over Mountain Bell and thereby converted its otherwise private conduct into state action for purposes of § 1983″). There’s a lot more that can be said about the matter, but I just thought that I’d note here that such liability for the intermediary is at least potentially available.
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