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.

Comments

[Armchair]

I think there's also an element of individualization that is important.

For example "a number of public officials called on colleges and universities to do more about anti-Semitic hate speech on campus"

Sure. But that's a general statement, made without any individualization. Compare that with...

A Police Chief specifically said to State College Alpha that individual X who is making anti-semitic statements needs to be "watched more carefully" and "something should be done about him".

That starts to cross the line into coercion. It's the individualization of the speech that begins to cross the line, rather than a general statement that encompasses a wide number of people.

[Michael P]

I think in the university protest cases, the request was effectively to enforce existing laws or policies that clearly prohibited the actions during those antisemitic protests: true threats, trespass, intimidation, disruption of classes, blocking students from entering or leaving classrooms, and so forth.

In contrast, the social media policies questioned by these cases are amorphous: they’re so vague as to amount to arbitrary and often capricious action by the platforms, and so there’s no real basis on where or when they should apply, meaning government pressure ends up determining a rule rather than requesting its uniform application.

[Armchair]

In the social media cases, this wasn't a just a general warning by the government to "reduce misinformation" to social media companies in general.

They were very specific. Individual posts were highlighted to be removed by government officials, to very specific companies.

It's the individualization that makes it problematic.

[Absaroka]

"It’s the individualization that makes it problematic."

I'm not sure that works. There is a famous example from WWII - the Japanese thought that US subs couldn't dive deeper than ??300?? feet, and were setting depth charges accordingly. They could in fact dive to ??450?? ft and were using that to dodge attacks. A ??Chicago?? newspaper published that, the word got to Japan somehow, and the Japanese started setting their depth charges for deeper depths.

IIRC the government didn't get word of that pre-publication, but if they had I don't think asking the paper to spike the story would have been inappropriate, even though that would be a very specific request.

OTOH, I would very much oppose, even in WWII, the government tell/asking a newspaper not to write articles opposing the war in general, or criticizing the government's conduct of it ('We should build more carriers, not battleships', 'Let Europe sort out it's own mess', 'Invading North Africa is a dumb diversion', 'We should be Pacific first, not Europe first', or whatever).

I think the distinction is that the latter class of discussions are needed for the electorate to decide what government policies are correct, and thus who to vote for; you can't have a democracy without an informed electorate, but allowing the government to put a thumb on the scales of those discussions creates a self licking ice cream cone.

In contrast, the details of how subs are evading attacks isn't really a debate the public is having; it's not like candidates are going to be campaigning about what depths subs should use to dodge depth charges.

Alas, I'm not sure at all how to codify a rule. I just don't see 'the request was to suppress a specific article' as the right distinction.

[Armchair]

In regards to your submarine example, would something like that be considered a defense secret? You seem to imply it could be (or should have been), and the government could be justified in such speech prohibitions based on that alone.

The issue with the individualized examples, is it sets itself up for coercion, even if it's implicit.

[Noscitur a sociis]

Labeling information a "defense secret" (even if it is!) does not, in fact, authorize the government to ban its dissemination altogether. That's the Pentagon Papers doctrine that Prof. Volokh discusses in the next post. Or perhaps you agree with Justice Jackson that the doctrine should be revisited?

[Armchair]

Using the example at hand (information about Submarine dive depths during wartime), if it was labelled as classified, it would almost certainly meet the "Grave and irrepairable danger" standard set by Dennis v. United States.

Notably, there's a difference between censorship of the government's own (classified) information, and censorship someone else's independent thoughts.

[Noscitur a sociis]

Incorrect.

The government can condition authorized access to its sensitive information on keeping it confidential and punish people who don't, and it can punish stealing and disseminating its information. What it can't generally do is punish people who innocently receive sensitive information from further distributing it. At least, that's the case under current jurisprudence. But again, if you agree with Justice Jackson that those holdings are wrong, that's your prerogative!

[Armchair]

"At least, that’s the case under current jurisprudence"

Is it?

Take a look at the opinions. NYT v US is a per curiam opinion. Its primary holding is that "The First Amendment overrides the federal government’s interest in keeping certain documents, such as the Pentagon Papers, classified."

Note that wording. "Certain documents". Not all documents

Additionally, it is noted that "It is difficult to extract a clear precedent from this case, since the per curiam opinion limited itself to agreeing with the two lower courts that the government should not be granted an injunction. No reasoning was conveyed in the per curiam opinion to support this conclusion."

Taking a look at the individual opinions, at least two justices (White and Stewart) note the standard that ""But I cannot say that disclosure of any of them will surely result in direct, immediate, and irreparable damage to our Nation or its people."" This suggests that if the information was of such a nature (as suggested by the direct example above in regards to submarines, ) the US would be well within its rights to prosecute. This is different in some regards to the Pentagon papers.

To use an extreme example, a paper should not be able to publish the nuclear launch codes, if they were acquired through a "innocent" means. NYT v US was limited in some respects, and those limitations don't necessarily extend to such extreme levels. It's logically inconsistent otherwise.

[Michael P]

I don’t think I agree in general. If the government asked a platform to remove specific comments that contained true threats, extortion demands, or other forms of criminal speech, would that be problematic individualization?

I think a large part of the problem here is that the government effectively pushed the companies about how to apply vague policies — in some cases, yes, aimed at particular comments or individuals; but I think it’s also problematic that the government demanded general action against things like vaccine hesitancy or skepticism, and the lack of individual targeting arguably makes that worse because it sweeps in a bunch of other people who aren't being specifically considered.

[Armchair]

"I don’t think I agree in general. If the government asked a platform to remove specific comments that contained true threats, extortion demands, or other forms of criminal speech, would that be problematic individualization?"

Not necessarily, but that falls under a separate law. Criminal speech is criminal, by definition. The government can (and does) use quite severe coercion to stop it. (Prison time, fines, and so on). It's the speech that isn't criminal that the government seeks to stop that is at issue here.

[Jonathan Affleck]

My mother's father was an oriental Jewish poseq that doubted the Jewish status of European Jews. He never went as far as a declaration that asserted a marriage with an Ashkenazi Jew was invalid because an Ashkenzi Jew is not a real Jew. (He would have had to rule my parent's marriage invalid. Yet, there was at least one oriental poseq that did make such a ruling.

[CMM]

The States needed to articulate a limiting principle. Political Speech should have been the line that triggers heightened protection.

https://news.bloomberglaw.com/us-law-week/government-censorship-of-social-media-demands-bright-line-rule

[ducksalad]

From the examples the authors give in that link, it's clear they define "political" to include speech about vaccine effectiveness, Jill Biden's academic credentials, etc. Which is great, but I think adding the weakening qualifier "political" in practice would just open up another avenue for attacks on free speech.

The bright line should be that "jawboning" is only allowed when the government could directly order the action anyway.

[bernard11]

But then the permission to jawbone is largely meaningless.

[ducksalad]

Yes.

If you’re inclined to support this jawboning thing, it might be useful to consider how you’d feel if it was deployed on the opposite side of the issue. For example, right-wing cabinet officials pressuring websites to remove posts by doctors saying that vaccines work, to close accounts operated by the CDC and NIH, etc. Or on social issues, asking for SPLC and BLM related accounts to be closed. And suppose they were fairly successful in getting major sites to comply.

Would you still consider this a constitutionally legitimate action? As in, "I disagree with the officials' position but accept that they are totally entitled to do it".

[Brett Bellmore]

"For example, right-wing cabinet officials pressuring websites ... to close accounts operated by the CDC and NIH,"

Wouldn't cabinet officials just do that by directing the relevant agencies to close the accounts themselves?

[Krayt]

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

If a private entity comes to government and says hey, look what I saw (in their apartment, on their laptop, whatever) that's fine. If the entity has a too cozy relationship, looking for things to report to government in any tit for tat way, they become an operator on behalf of government. What that too cozy line is could be fuzzy, from discussions I've heard around here.

But government is so big their left hand can clobber like nobody's business, while the right hand is "persuading" to abridge speech, report stuff, whatever.

Many companies have had a push on for years to move all your stuff to the cloud, all your documents, your settings (including search and web site history) and so on. Meanwhile, the larger of these companies are regular targets of anti-trust action and other investigations. Being a toady could easily get you lessened penalties and investigations. Hell, there wouldn't even need to be explicit agreement. An entity could just immediately roll over as prophylactic.

Are there statistics on any of this?

[mydisplayname]

"Many companies have had a push on for years to move all your stuff to the cloud, all your documents, your settings (including search and web site history) and so on. [...] Being [an entity which readily releases information stored on its 'cloud'] could easily get you lessened penalties and investigations."

Since the early 1990s, I've wondered if consumers realize the ramifications of storing information in the 'cloud'. At that [pre-Windows95] time, we were experimenting by giving private university students a "P:" drive -- a location which appeared to be a physical part of their own personal computer but was in fact a protected personal location on a centralized server. It was popular with students, relieved of the worry of maintaining and protecting their own data, but perhaps would not have been had the students known that the data was subject to daily scans which frequently revealed criminal, 'immoral', and/or 'unethical' behavior. Sometime later, we experimented by validating the IDs of local nightclub patrons, thereby reducing the risk of fine due to selling alcohol to underage patrons.

Seemingly altruistic activities seldom are: those who choose not to do for themselves expose themselves to the unbridled will of the seemingly altruistic party, even when that party is 'the government' at some level.

Expanding the search for statistics beyond those directly related to modern technology reveals a wealth of statistics, including many from the so-called Lochner Era. [see Fabricky's(sp?) work on systems analysis, particularly the 'public library' problem]

[Stephen Lathrop]

The analogy breaks down.

The 4A is not the 1A.

In the search situation, the right of the tenant cannot be redressed by seeking access to another government.

In the coerced speech situation, two parties, the publisher and the contributor, enjoy 1A rights. And the publisher's 1A right includes liberty to agree with the government, and to do so even if the publisher by rejecting a would-be contribution creates inconvenience for a contributor. But the contributor nevertheless remains free to find another publisher who disagrees with the government. And that second publisher also enjoys a 1A right not to be coerced by government, and to vindicate that right by facilitating publication of the contributor's government disapproved content.

In practice, the rights do not analogize.

[Absaroka]

"In the search situation, the right of the tenant cannot be redressed by seeking access to another government."

The tenant can just find another landlord, and the facebook user can just find another social media platform.

Neither has good options when that same government is leaning on all the landlords and all the media companies.

[MaddogEngineer]

IANAL, let alone a 4A expert, but I’m not sure this is an apt analogy.

The key difference is whether the private actor (social media enterprise, landlord) has the right to do the act in question on its own to begin with.

I think as a general matter your landlord doesn’t have the right to snoop around your rental whenever he wants. Sure, he probably has authority to come in for needed inspections/repair. He may have to give notice, but can’t just do so willy-nilly. No need to get to the question of whether the landlord is acting as an agent of the government.

Whereas a social media site has an absolute right as a publisher (under 1A, subject to any prior terms of service) to moderate content as it sees fit.

The catch here is whether, even if the social media site is a willing accomplice with government, even initiating the solicitation of government guidance, government can direct such censoring. It’s a close call. I don’t like that in other contexts, liberals absolutely wouldn’t stand for this, even if the law wasn’t clearly on their side.

I’m old enough to remember the 2020 post office blue mailbox removal hoax, after all.

[Noscitur a sociis]

The key difference is whether the private actor (social media enterprise, landlord) has the right to do the act in question on its own to begin with.

It’s not: the Fourth Amendment doctrine Prof. Volokh is talking about applies even when the private actor would clearly have the right to conduct the inspection. An airline, for instance, can generally search your bags at its discretion (including because it thinks that there are drugs inside), but that has Fourth Amendment implications if they do so because a DEA agent asks them to.

[Rossami]

In addition to Noscitur's comment, you're wrong on your premise, I'm afraid. Unless a local law or your specific contract says otherwise, your landlord does have the right to snoop in your rental at will. There is no constitutional obstacle to his ability to do so.

[MaddogEngineer]

Um, you guys don’t think there might be some local laws which might restrict a landlord’s access? I never claimed the landlord might be limited by the tenant's constitutional rights. That's exactly why the government might want to use him as a proxy.

Certainly, in an absolute property right sense, a landlord could make such anytime access as conditional of the rental. How do you think the market might react to such onerous conditions?

I stand by what I said previously. The government can’t take advantage of the landlord’s authority of it’s non-existent. That’s why I think it’s a poor analogy. How often do private actors have such unrestricted authority to begin with? Why would I as a customer agree to such terms…unless it’s an effective monopoly are a case where such intrusions are trivial and therefore not concerning.

[TwelveInchPianist]

In further addition, IIUC this doctrine applies even if someone clearly doesn't have the right to access the premises. If a burglar sees drugs in your house and reports them to the police, there is no fourth amendment violation. But if a cop asks someone to break into your house, there is.

[Mr. Bumble]

"I’m old enough to remember the 2020 post office blue mailbox removal hoax, after all."
How about the Russian Collusion hoax?

[Jonathan Affleck]

At colleges and universities, vacuous accusation of antisemitism has long been a technique of genocide incitement (a US federal crime) and of abridgment of the speech of a Palestine advocate, who like me are often Jewish. The government should not be in the business of creating hegemonic discourse, which inherently abridges speech. In the case of antisemitism, the US government is often explicitly or implicitly threatening action under Title VI of the Civil Rights Act.

The discourse of antisemitism at US colleges and universities consists mostly of Zionist propaganda and is intended to distract from the ongoing Zionist genocide or to suppress discussion of the ongoing Zionist genocide.

Explaining Antisemitism and Racism (I am really tired of vacuous accusations of antisemitism)

An example of racism is the treatment of blacks under Jim Crow. White racists hated and oppressed blacks. Blacks reciprocated with hate, but the black hatred cannot rationally be considered racism.

During the 19th century modernization caused the traditional Jewish economic niche gradually to vanish in Central and Eastern Europe. In response, in order to maintain incomes, Jewish business practices in finance (loan sharking) and in commerce (unfair dealing) became nastier. This changing economic behavior caused friction and tension.

The lower bourgeoisie and peasantry reacted with antisemitism (a genuinely new concept), but this antisemitism was not racism. It was the hatred of the exploited class for the exploiter class. When the exploited class reacted to exploitation with violence, Jews were often able to obtain protection from the state. Jews often responded to this antisemitism, which I call "traditional", with hatred that probably qualifies to be called racism.

Traditional antisemitism was dwindling in the 19th century as the Jewish and gentile communities worked out issues of modernization. 19th century German or Austrian antisemitic parties were failures and vanished in the early 20th century.

The Nazis created a new antisemitism in the 1920s. This Nazi antisemitism combined remnant traditional antisemitism with fear and loathing of the Soviet Union, whose face seemed and was disproportionately Jewish. Few non-Jews realized how much the Jewish section of the Soviet Communist Party persecuted more traditional Jews like the members of my father’s family. (My mother's family consisted of N. African Jewish Berbers and did not have to deal with the same sorts of issues of modernization until the family was tricked into emigration to the Zionist state, which I nowadays call the baby killer nation.

Today neither traditional 19th century antisemitism nor Nazi antisemitism exists to any major extent.

We, who hate, scorn, and loathe the baby killer nation, are just like my father’s generation that abominated the Nazi nation because of its racism, because of its mass slaughter, because of its war crimes, and because of its genocide.

Gentiles, who worry about antisemitism today, are ethically challenged nitwits.

A group, which has been subjected to genocide at the hands of a first set of genocide perpetrators (e.g., Nazis), can later themselves form a second set of genocide perpetrators (e.g., Zionists) just as evil as the first set of genocide perpetrators.

I am a Jew. A Zionist is not a Jew. A Zionist is post Judaism because Zionism murdered Judaism by transformation of Judaism into a program of genocide.

At many universities, Jews and anti-Zionists seem vastly to outnumber the Zionists, who cannot rationally be considered Jewish -- even (or especially) those Zionists that have Jewish ancestry. Genocidal Zionist speech is generally not First Amendment protected expression, and material support to perpetrators of genocide is a US federal crime. A Zionist colonial settler is not admissible to the USA according to 8 U.S. Code § 1182 – Inadmissible aliens (a)(3)(E)(ii) (Participation in genocide).

There is no middle ground on genocide, and in order to avoid legal exposure, a college should seriously consider whether it should welcome within its community a supporter of a genocide that Zionist colonial settlers perpetrate before our eyes in real-time as we watch on computer monitors.

[Noscitur a sociis]

I am a Jew.

No, you’re not.

[David Nieporent]

Nor is he a historian; he makes Dr. Ed look accurate.

[NvEric]

The article and comments highlight the failings of enumerating rights, and leaving fate to the winds of whim for the un-enumerated rights, A9.

It's more than obvious that enumerated rights have become the only protected rights, while everything else is not. If questions arise concerning rights fails to fall within A1-A8, then there is no right to a quality of existence for which any government may not intrude.

[ducksalad]

The 4th Amendment analogy is interesting, but I think much closer and more apt analogies are to other parts of the First Amendment, e.g. religion.

1. A school principal spends several hours at his office calling parents from his office phone, announcing himself as principal and then politely encouraging them to send their children to a Baptist-themed summer camp. When criticized for this, he points out that parents certainly have a right to send their kids to such a camp and he is merely suggesting they do so.

2. A city building inspector, whenever he inspects a private home undergoing renovations, gives his card to the homeowner and urges them not to patronize Wilson’s Diner because it is owned by Jews. When taken to court, he points out that individuals are entitled to choose where to eat, even for bigoted reasons, and he was merely suggesting they do so.

I don’t think either of these is a close call. And it doesn’t really hinge on the level of coercion or pressure: the whole project is an illegitimate goal and pursuing it is a wrongful activity for a government official.

And it’s the same thing with the social media. The government should not be concerning itself with what people post on social media, and no employee time should be spent on it.

[MatthewSlyfield]

This is where I am on this issue.

[Commenter_XY]

Pretty close to where I am, too.

[Aubrey LaVentana]

"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."

Let them make that call publicly. Not establish 'portals' where they can privately share notes with the platforms that deliver the speech, but in the newspapers (I date myself), lecterns, stump speeches, and their own social media feeds.

[Noscitur a sociis]

What's the constitutional significance of the difference?

[ObviouslyNotSpam]

The "portals" were not mandated by the government; they were established by the social media companies voluntarily, so that the government "advice" wouldn't get lost in the flood of communications.

So are you calling for the social media companies to close their own portals, or for the government not to use them?

[Vandalia]

It would seem to me that the specificity of the request would be a key factor.

For example, if the government would say, "Be alert for unattended packages in public places, and if you see one that is left unattended in a public place, call 911" would be very different from, "Hey, TWA (selected on purpose since it no longer exists), please go through the bag belonging to John Doe on Flight 1111 and if you see anything that is potentially illegal, give us a call."

In the same way, "Hey Twitter (again specifically chosen), be careful with posts suggesting Ivermectin for off-label uses" doesn't cross the line, but "Hey block this tweet by user RadSan23433 that he posted at 1237Z on 30 February" does.

[Bill R]

I agree. It's *speech*. There's never going to be a bright-line rule. There may be guidelines, but they'll always have to be evaluated for each specific case. "It would be a shame if something bad happens" can mean completely different things depending on context. Are we talking about not wearing seat belts, or are we making threats? Or making threats about wearing seat belts?

[I woke up when Hillary talked about Reconstruction]

Now that we know from the British data that Biden was totally (yes,totally)wrong when he blocked unvaccinated children from medical help, who can argue that he even had the facts himself

And Biden (who gave a whole speech on the OMNIcron virus) did he let the science speak....JUST THE OPPOSITE as was true of many government bodies

South African doctor who discovered Omicron variant SLAMS pressure from countries to make the virus sound worse than it actually is
Dr Angelique Coetzee was one of the first scientists to discover Omicron strain
She said she's been attacked from scientists and politicians around the world
Dr Coetzee said she was told not to describe the Covid variant as 'mild'

[David Nieporent]

when he blocked unvaccinated children from medical help,

Okay, I'm online enough that I can usually figure out what the crazies are referring to, even when I recognize the craziness. But I have no idea here.