The First Amendment, the Fourth Amendment, and Substantial Encouragement

Part of the Murthy v. Missouri challengers' claim is that the First Amendment bans the government from even "substantially encouraging" private entities to block user speech. And as I noted in the post below, I appreciate the difficulties with this claim (though I also appreciate its appeal).

Here, though, I wanted to repeat one narrow observation that I had made some time ago. I'm not sure how far it goes, but it struck me as worth noting.

Consider this passage from the oral argument by the federal government lawyer:

I'm saying that when the government persuades a private party not to distribute or promote someone else's speech, that's not censorship; that's persuading a private party to do something that they're lawfully entitled to do, and there are lots of contexts where government officials can persuade private parties to do things that the officials couldn't do directly.

So, for example, you know, recently after the October 7th attacks in Israel, a number of public officials called on colleges and universities to do more about anti-Semitic hate speech on campus. I'm not sure and I doubt that the government could mandate those sorts of changes in enforcement or policy, but public officials can call for those changes.

The government can encourage parents to monitor their children's cell phone usage or Internet companies to watch out for child pornography on their platforms even if the Fourth Amendment would prevent the government from doing that directly.

All of those are contexts where the government can persuade a private party to do something that the private party's lawfully entitled to do, and we think that's what the government is doing when it's saying to these platforms, your platforms and your algorithms and the way that you're presenting information is causing harm and we think you should stop ….

A forceful position, I think; and yet note that, when it comes to many Fourth Amendment situations, the analysis may actually be quite different.

Say that you use your rights as a landlord, set forth in a lease, to visit and inspect a tenant's apartment; see evidence that he's committing a crime; and report it to the police. You haven't violated the Fourth Amendment, because you're a private actor. (That may be true even if you have committed some tort or crime, see, e.g., United States v. Phillips (9th Cir. 2022); Burdeau v. McDowell (1921), but often your visit and your looking around may actually be entirely legal.) And the police haven't violated the Fourth Amendment, because they didn't perform the search. The evidence from this "private search" can be used against the tenant.

But now say that the police ask you to do this. That inspection may become a search governed by the Fourth Amendment. "[I]f a state officer requests a private person to search a particular place or thing, and if that private person acts because of and within the scope of the state officer's request," then the search will be subject to the constitutional constraints applicable to searches by the government. State v. Tucker (Or. 2000) (applying the Oregon Constitution's Fourth Amendment analogue) (police request to tow truck driver to search items in car being towed), followed by State v. Lien (Or. 2019) (police request to trash company to pick up a person's trash in a particular way that would facilitate its being searched); see also United States v. Gregory (E.D. Ky. 2020) (similar fact pattern to Lien). "Police officers may not avoid the requirements of the Fourth Amendment by inducing, coercing, promoting, or encouraging private parties to perform searches they would not otherwise perform." George v. Edholm (9th Cir. 2014) (police request to doctor to do a rectal search) (emphasis added); see also United States v. Ziegler (9th Cir. 2007) (police request to employer to search employee's work computer).

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." United States v. Folad (6th Cir. 2017) (emphasis added); see also United States v. Garlock (8th Cir. 1994). More broadly—and here we come to precedents that were indeed raised in the Murthy oral argument—the Supreme Court held in Blum v. Yaretsky (1982), a Due Process Clause case, 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." And in Norwood v. Harrison (1973), an Equal Protection Clause case, it viewed it as "axiomatic that a state may not induce, encourage or promote private persons to accomplish what it is constitutionally forbidden to accomplish."

To be sure, the inducement, and encouragement, and promotion in Norwood involved the provision of tangible benefits (there, textbooks given to racially segregated schools, alongside other schools) and not just verbal encouragement. By itself, the line in Norwood may thus not carry much weight. But the Fourth Amendment cases in which government-encouraged or government-requested private searches became subject to the Fourth Amendment did involve just verbal encouragement.

Again, I'm not sure what to make all this. Perhaps the government's trying to persuade private landlords to engage in searches should indeed be viewed as government action that potentially violates the Fourth Amendment, and the government's trying to persuade private platforms to restrict user speech should not be viewed as government action that potentially violates the First Amendment. But since the Fourth Amendment came up in the argument, I thought I'd note again this potential analogy.