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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 pow

by rendall 11mo 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 11mo 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 11mo 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".
  - estearum 11mo ago
    This is getting extremely tedious as it seems you’re forgetting your own arguments and arguing against yourself. You are the one who alleged some “public safety” test or exception (to draw a boundary around things like PSAs). You have now proven why your own argument makes no sense, and why it is not and should not be the legal standard. Bantam obviously did not establish a “do you have the ability to coerce” test because — again as you have demonstrated against your own point — any instrument of the state can be construed to have “the ability” to coerce any private party. So if this were the test established by Bantam (it’s not), then it would entirely preclude government requests to private parties. Which, again, it does not. Literally none of those agencies or departments you mention have any regulatory authority whatsoever over social media platforms.

by rendall 11mo ago

estearum 11mo 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 11mo 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".
- estearum 11mo ago
  This is getting extremely tedious as it seems you’re forgetting your own arguments and arguing against yourself. You are the one who alleged some “public safety” test or exception (to draw a boundary around things like PSAs). You have now proven why your own argument makes no sense, and why it is not and should not be the legal standard. Bantam obviously did not establish a “do you have the ability to coerce” test because — again as you have demonstrated against your own point — any instrument of the state can be construed to have “the ability” to coerce any private party. So if this were the test established by Bantam (it’s not), then it would entirely preclude government requests to private parties. Which, again, it does not. Literally none of those agencies or departments you mention have any regulatory authority whatsoever over social media platforms.