part of Marcy vs. Missouri The challengers argue that the First Amendment prohibits the government from even „substantially encouraging“ private entities to block users' speech.and as I pointed out In the post belowI understand the difficulty of this argument (but also understand its appeal).
But I would like to repeat a narrow observation I made a while ago. I don't know to what extent this is true, but I thought it was worth noting.
Consider the following passage Oral argument A federal lawyer said:
What I am saying is that it is not censorship for the government to persuade private organizations not to distribute or promote the speech of others. It's about persuading private individuals to do things that they are legally entitled to do, and there are many situations in which government authorities can persuade private individuals to do things that they cannot do directly.
For example, as you know, after the October 7 attacks in Israel, many public officials called on universities to do more about anti-Semitic hate speech on campus. I don't know, and I doubt, that the government can mandate such enforcement or policy changes, but public officials can request them.
The government can force parents to monitor their children's cell phone usage, and internet companies can control their platforms, even if the Fourth Amendment prevents the government from doing so directly. Children can be encouraged to be careful about child pornography.
These are all situations where a government can persuade a private party to do something that that private party is legally entitled to do, and what the government can say about these platforms, your platform, your algorithms, and how you do it. We believe that this is what is happening. I think the information you are providing is causing damage and should be stopped….
I think that's a strong position. Note, however, that for many Fourth Amendment situations, the actual analysis may be quite different.
Suppose you are exercising your rights as a landlord under your rental agreement to visit and inspect your tenant's apartment. Look at the evidence that he is committing a crime. and report it to the police. You are not violating the Fourth Amendment because you are a private actor. (This applies even if you commit a tort or crime. for example,, United States vs. Phillips (9th Circuit 2022); Bardeau vs. McDowell (1921), in many cases visiting and exploring the surroundings may actually be completely legal. ) And because the police weren't conducting a search, they weren't violating the Fourth Amendment. Evidence from this “private search” can be used against the tenant.
But now suppose the police ask you to do this. This test could be a Fourth Amendment test. „(I) If an FA state official requests a private person to search a particular place or object, and the private person acts upon and within the scope of the state official's request,'' the search is subject to applicable constitutional law. Restrictions will apply. Government search. State vs. Tucker (or 2000) (applying Oregon Fourth Amendment analogs) (police asks tow truck driver to inspect items in vehicle being towed); Next is state vs. lien. (or, 2019) (Police ask garbage disposal companies to collect personal garbage in a specific manner to facilitate searches). See also United States v. Gregory (ED Ky. 2020) (Similar fact pattern Lien). „A police officer may not circumvent the requirements of the Fourth Amendment if:“ provoke,Forced, promote or encourage Private parties can perform searches that they would not otherwise perform. ” george vs edholm (9th Cir. 2014) (police asks doctor to perform rectal exam) (emphasis added); See also United States v. Ziegler (9th Circuit 2007) (Police ask employer to search employee's work computer).
Similarly, “in the context of the Fifth Amendment, courts have held that the government may violate defendants' rights through coercion. or encourage A private party to extract confessions from criminal defendants. ” US vs. Fold (6th Cir. 2017) (emphasis added); See also United States v. Garlock (8th Circuit 1994). More broadly, we come to the precedent actually raised here. Mercy Oral argument—held in the Supreme Court Bloom vs. Yaretzky (1982), due process clause cases hold that “states can generally be held accountable for private decisions only when they use coercive force.” or provided such important encouragement.That choice, whether overt or covert, must be recognized by law as a state choice. ” norwood vs harrison (1973), in Equal Protection Clause cases, deemed it „axiomatic for states to prohibit.'' induce, encourage, facilitate Accomplishing something that a private individual is constitutionally prohibited from doing. ”
Indeed, the invitation, encouragement, promotion, norwood This included not only verbal encouragement but also the provision of tangible benefits (where racially segregated schools were given textbooks alongside other schools). The line itself is norwood Therefore, it may not be able to carry as much weight. However, in the Fourth Amendment cases where private searches at government encouragement or at government request were subject to the Fourth Amendment, only verbal encouragement was involved.
Again, I don't know what to make from this alone. Perhaps the government's attempts to persuade private landlords to participate in the raids should actually be considered government actions that may violate the Fourth Amendment, and private platforms should not be allowed to restrict users' speech. The government's attempts to persuade Americans to restrict the law may not be considered government actions that may violate the First Amendment. Fixed. But since the Fourth Amendment came up in the discussion, I thought I'd take another look at this potential similarity.