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No I think "the angle" is extremely clear: government requests are fine (important even!) and coercion is bad. The government itself has First Amendment rights

No I think "the angle" is extremely clear: government requests are fine (important even!) and coercion is bad. The government itself has First Amendment rights to request action from private entities. Those private entities have First Amendment rights to accept or decline those requests without fear of reprisal. Both MAGA and Biden (and every other admin) have requested action from private parties. But in Biden's case, there's no evidence of coercion, the "coerced parties" didn't say they were coerced, and there was no tool the people requesting action could've even used to damage the platforms. In MAGA's case, coercion was posted on Truth Social, stated by regulatory agency heads on national news, and could functionally be actually executed by those same regulatory heads using broadcast licenses or merger reviews. These decisions actually Why do I care that our government retain the right to request action from private parties? If the government is looking for a murder suspect, they should (and do) have a right to request that a local news station put out a PSA. They should (and do) have a right to request that the local news does not broadcast information that may help the murder suspect. In both cases, the local news stations itself should (and does) have a First Amendment right to either accept or decline these requests. If we take your implication that the government has no right to request action, then they cannot publish PSAs via private channels. They cannot assist platforms in identifying CSAM. They cannot communicate evacuation orders. They cannot communicate product recalls. If we take your implication that private parties have no right to accept such requests when they want to, then control of speech is as simple as the government requesting to remove content that they want to ensure is not removed, or requesting to publish content they do not want published. Both of these are utterly ridiculous outcomes which is why this is not the legal framework in reality! This has nothing to do with not "seeing" the duopoly. No one is happy with our two party system. But as shown, it's simply not true that your imaginary legal theory 1) exists or 2) would be "effective" or "less corruptible", nor is it true that "both sides" are equally guilty of abusing the actual legal structure we have today.

rendall 1y ago
That is a reasonable summary of the ideal framework: government can request, private parties can accept or refuse. The problem is the practical imbalance of power when the requester controls licensing, regulation, or future oversight. The "request" becomes coercive when made by an entity with the ability to punish or reward. Courts have repeatedly recognized this distinction in First Amendment jurisprudence (see Bantam Books v. Sullivan, 1963 [1]). No one here argued that the government cannot issue PSAs, coordinate emergency messaging, or report CSAM. The issue is when the same channels are used to influence lawful political speech or to "pre-bunk" narratives before elections. That is not analogous to public-safety communication. As for evidence of coercion: while the Supreme Court dismissed Murthy on standing, the district court found substantial evidence of "coercive pressure." The finding was not overturned by the Supreme Court's decision. Even if platforms denied feeling coerced, the record shows White House officials warning of regulatory consequences and explicitly flagging posts for removal. The absence of a formal order only makes it harder to prove, but it is not therefore benign. Your murder-suspect analogy works because it's bounded by law enforcement necessity. The social-media cases involve subjective political and scientific claims where the government had a direct reputational stake. That's where the line shifts from coordination to censorship. So yes, governments can ask. But when the asking is done by regulators, with implied power over those they're asking, the line between request and command gets very thin. That's the danger people are pointing to and it's not partisan. [1] https://supreme.justia.com/cases/federal/us/372/58/ https://supreme.justia.com/cases/federal/us/372/58/
- estearum 1y ago
  That is just an inaccurate analysis of Bantam. It is not solely whether the requestor has the ability to punish or reward, though this is a component (one which is lacking in the Biden administration scenarios, for what it's worth). > No one here argued that the government cannot issue PSAs, coordinate emergency messaging, or report CSAM. The issue is when the same channels are used to influence lawful political speech or to "pre-bunk" narratives before elections. That is not analogous to public-safety communication. The Biden scenarios you mentioned are, quite obviously, public safety related. There are not bright lines between "lawful political speech" or "pre-election narratives" or "law enforcement necessity" or "public-safety communication." More importantly, your suggestion that enforcement should be content-specific is directly contrary to how First Amendment protections work. Content-neutrality is a core tenet! The government is allowed to request and isn't allowed to coerce you for speech containing any content whatsoever. Maybe that's where your line shifts from coordination to censorship, but that is not where any legal line is. > So yes, governments can ask. But when the asking is done by regulators, with implied power over those they're asking, the line between request and command gets very thin. That's the danger people are pointing to and it's not partisan. This is far too abstract to be useful. There were no "regulators" involved in the Biden <> platform COVID conversation.
  - rendall 1y ago
    That is not an inaccurate reading of Bantam Books at all. The Court held that informal governmental pressure can violate the First Amendment when it operates "in a calculated scheme to suppress publication." The key factors weren't only formal regulatory power but the reasonably perceived ability to impose consequences. The state commission in Bantam didn’t issue fines or revoke licenses either. It sent "advisory notices" backed by the implicit threat of referral to the Attorney General. That's exactly why it's relevant: the coercive effect arose from context and authority, not explicit sanctions. Framing the Biden administration’s social-media coordination as "obviously public safety" glosses over the problem. Once "public safety" becomes an elastic justification, it swallows nearly all political discourse. COVID policy and election integrity were both core political debates. The point isn't to demand content-specific enforcement but to note that the subject matter (scientific dissent and political criticism) makes coercion far more dangerous. A good example is Backpage.com v. Dart (2015). Cook County Sheriff Tom Dart, in an example of a Democrat abusing authority, sent letters to Visa and MasterCard "urging" them to stop processing payments for Backpage, claiming it would fight prostitution. On its face, it also was a public-safety rationale, not political censorship. But the Seventh Circuit found it unconstitutional because a government official used his position to coerce private firms into choking off a lawful publisher's speech. Judge Posner called it a "thinly veiled threat." You're right that the First Amendment's test is content-neutral, but that does not immunize state actors from scrutiny when their pressure targets specific viewpoints under the guise of neutrality. Courts have consistently treated viewpoint discrimination as the gravest violation, and political speech is the area of highest protection. As for "no regulators": the officials involved were from the White House, the Surgeon General's office, the CDC, and DHS; all executive agencies with regulatory and funding power over the very platforms and sectors they were contacting. That is not "abstract".

rendall 1y ago

That is a reasonable summary of the ideal framework: government can request, private parties can accept or refuse. The problem is the practical imbalance of power when the requester controls licensing, regulation, or future oversight. The "request" becomes coercive when made by an entity with the ability to punish or reward. Courts have repeatedly recognized this distinction in First Amendment jurisprudence (see Bantam Books v. Sullivan, 1963 [1]). No one here argued that the government cannot issue PSAs, coordinate emergency messaging, or report CSAM. The issue is when the same channels are used to influence lawful political speech or to "pre-bunk" narratives before elections. That is not analogous to public-safety communication. As for evidence of coercion: while the Supreme Court dismissed Murthy on standing, the district court found substantial evidence of "coercive pressure." The finding was not overturned by the Supreme Court's decision. Even if platforms denied feeling coerced, the record shows White House officials warning of regulatory consequences and explicitly flagging posts for removal. The absence of a formal order only makes it harder to prove, but it is not therefore benign. Your murder-suspect analogy works because it's bounded by law enforcement necessity. The social-media cases involve subjective political and scientific claims where the government had a direct reputational stake. That's where the line shifts from coordination to censorship. So yes, governments can ask. But when the asking is done by regulators, with implied power over those they're asking, the line between request and command gets very thin. That's the danger people are pointing to and it's not partisan. [1] https://supreme.justia.com/cases/federal/us/372/58/ https://supreme.justia.com/cases/federal/us/372/58/

estearum 1y ago
That is just an inaccurate analysis of Bantam. It is not solely whether the requestor has the ability to punish or reward, though this is a component (one which is lacking in the Biden administration scenarios, for what it's worth). > No one here argued that the government cannot issue PSAs, coordinate emergency messaging, or report CSAM. The issue is when the same channels are used to influence lawful political speech or to "pre-bunk" narratives before elections. That is not analogous to public-safety communication. The Biden scenarios you mentioned are, quite obviously, public safety related. There are not bright lines between "lawful political speech" or "pre-election narratives" or "law enforcement necessity" or "public-safety communication." More importantly, your suggestion that enforcement should be content-specific is directly contrary to how First Amendment protections work. Content-neutrality is a core tenet! The government is allowed to request and isn't allowed to coerce you for speech containing any content whatsoever. Maybe that's where your line shifts from coordination to censorship, but that is not where any legal line is. > So yes, governments can ask. But when the asking is done by regulators, with implied power over those they're asking, the line between request and command gets very thin. That's the danger people are pointing to and it's not partisan. This is far too abstract to be useful. There were no "regulators" involved in the Biden <> platform COVID conversation.
- rendall 1y ago
  That is not an inaccurate reading of Bantam Books at all. The Court held that informal governmental pressure can violate the First Amendment when it operates "in a calculated scheme to suppress publication." The key factors weren't only formal regulatory power but the reasonably perceived ability to impose consequences. The state commission in Bantam didn’t issue fines or revoke licenses either. It sent "advisory notices" backed by the implicit threat of referral to the Attorney General. That's exactly why it's relevant: the coercive effect arose from context and authority, not explicit sanctions. Framing the Biden administration’s social-media coordination as "obviously public safety" glosses over the problem. Once "public safety" becomes an elastic justification, it swallows nearly all political discourse. COVID policy and election integrity were both core political debates. The point isn't to demand content-specific enforcement but to note that the subject matter (scientific dissent and political criticism) makes coercion far more dangerous. A good example is Backpage.com v. Dart (2015). Cook County Sheriff Tom Dart, in an example of a Democrat abusing authority, sent letters to Visa and MasterCard "urging" them to stop processing payments for Backpage, claiming it would fight prostitution. On its face, it also was a public-safety rationale, not political censorship. But the Seventh Circuit found it unconstitutional because a government official used his position to coerce private firms into choking off a lawful publisher's speech. Judge Posner called it a "thinly veiled threat." You're right that the First Amendment's test is content-neutral, but that does not immunize state actors from scrutiny when their pressure targets specific viewpoints under the guise of neutrality. Courts have consistently treated viewpoint discrimination as the gravest violation, and political speech is the area of highest protection. As for "no regulators": the officials involved were from the White House, the Surgeon General's office, the CDC, and DHS; all executive agencies with regulatory and funding power over the very platforms and sectors they were contacting. That is not "abstract".