Combating Coercion: A Framework for the Supreme Court to Protect Freedom of Expression on Social Media

In the modern day, people interact as much or more on social media platforms as they do in person. The rise of digital platforms such as Facebook, Instagram, X (Twitter), and the like have created new public spaces—but ones that are controlled by private entities. The United States Constitution, in particular the First Amendment of the Bill of Rights, prevents the government from restricting speech, but does not contain restrictions on private companies. Indeed, most court cases of recent years have upheld the right of social media platforms to regulate at their discretion. But what about when the government pushes a social media company to restrict speech in a certain manner? For instance, during the COVID-19 pandemic, Mark Zuckerberg of Facebook has admitted to being consistently pressured by the White House under President Joe Biden’s Administration to censor certain content relating to COVID-19 [1]. Specifically, Facebook restricted or deleted content that criticized COVID vaccines or were deemed to contain misinformation. Facebook was pressured by the government in ways that were not statutory but rather informal as they faced consistent pressure and opposition from the government, with President Biden even remarking that platforms like Facebook were “killing people” [2]. While not formal, pressure from the government such as this certainly could lead social media companies like Facebook to make decisions based on that government pressure. In a world where the presence of social media is ever expanding, it is important for the courts to determine whether informal government pressure such as this is a violation of peoples’ rights to free speech. While the Supreme Court made it clear in Moody v. NetChoice LLC (2024) that the moderation decisions of platforms are protected acts of expression by remanding the case back to the lower court for “proper analysis,” the Court has been relatively quiet on other issues of more informal acts of government interference and coercion over social media platforms [3]. In a day and age where social media is such a prominent place of expression, it is essential that the Supreme Court develops a way to judge cases of informal government coercion based on the result of government action: If government action results in the suppression of free speech, even if not by law or statute, it is still a violation of the First Amendment.

To begin, it is important to understand how the Supreme Court historically dealt with cases of government coercion. In 1956, the Rhode Island legislature created a commission whose purpose was to educate the public about any publication containing obscene or indecent material pertaining to the “corruption” of youth and to investigate and recommend prosecution of violators [4]. Essentially, Rhode Island wanted to prevent minors from getting their hands on materials that were considered indecent. Although the Commission did not have the power to prosecute suspected violators, they often sent informal pressure and threats, often in the form of letters to organizations who supplied such materials. Bantam Books, Inc. was one such company that received warnings from this commission, and so it sued the commission. In 1963, the Supreme Court held that the informal pressure on companies by Rhode Island’s Commission to Encourage Morality in Youth was unconstitutional because compliance with the commission of companies such as Bantam Books was “not voluntary” [5]. Bantam Books, Inc. v. Sullivan (1963) is an important case because it demonstrates the Court’s belief that coerced action by the government, even if informal, is still unconstitutional. The legal reasoning behind Bantam Books, Inc. v. Sullivan was recently invoked by the Court in NRA v. Vullo (2024) where, in the majority opinion, Justice Sotomayor wrote, “Bantam Books stands for the principle that a government official cannot do indirectly what she is barred from doing directly: A government official cannot coerce a private party to punish or suppress disfavored speech” [6]. The precedent of Bantam Books, Inc. v. Sullivan further establishes the idea that informal coercion by the government to force expression in a certain form is unconstitutional.

Another important aspect of state-coerced expression is whether or not the action of private institutions can be considered state action if they are receiving funding or backing from the state. An example of this comes in Norwood v. Harrison (1973) when the Supreme Court ruled that a Mississippi program that provided free textbooks to public and private schools was unconstitutional because it provided textbooks to private schools known as “academies” that intentionally prevented black students from enrolling [7]. Segregation of this kind had been outlawed by the Court in public schools since Brown v. Board of Education (1954); however, the Brown decision did not extend to private schools [8]. Despite this, the Court ruled that Mississippi providing textbooks to these academies was unconstitutional because Mississippi violated the Equal Protection Clause of the Fourteenth Amendment by providing textbooks to a school that promoted racial segregation [9, 10]. While Norwood v. Harrison was mainly an issue regarding the Equal Protection Clause, it does provide important insight on the perception of speech. Norwood does this by suggesting the notion that government involvement in private organizations can lead those organizations to essentially act as proxies for the government [11]. This was problematic in Norwood because if the action of private schools was essentially government action due to government backing, and the private schools were engaging in unconstitutional actions, the government could not be involved. This idea demonstrates the relevance and importance of Norwood in the modern day free speech scene because it suggests that if the government is significantly pressuring social media organizations to censor certain activity, then the resulting actions of the social media would really be it acting on behalf of the government—and government censorship is unconstitutional. However, the Norwood decision did not clearly define what sort of private actions should be considered state actions and whether simply receiving government funding was enough to qualify the action of a private firm as state action. This was clarified in 1982 when the Supreme Court held in Blum v. Yaretsky that simply providing funding to private organizations was not enough to qualify for state action—the state had to be actively encouraging particular activities [12]. For instance, in Norwood, the government of Mississippi was directly supplying racially segregated private schools with textbooks, thus qualifying as state action and a violation of the constitution [13]. However, in Blum v. Yaretsky, the Court ruled that the regulatory framework provided by government Medicaid programs to nursing homes was not enough to qualify as state action because the government was not directly dictating anything like they were in Norwood [14]. The difference here is that in Norwood the government directly provided materials, in this case textbooks, for that school presumably to further their goals of education; however, since the school promoted segregation, which was already unconstitutional, the government’s actions in directly providing textbooks was also unconstitutional. In Blum the government simply gave general funding money to nursing homes through Medicaid, thus not taking direct action like providing specific materials; therefore the Court ruled that did not qualify as government action. Extending this argument to Bantam Books, the direct pressuring of companies such as Bantam Books, while informal, was still direct and therefore qualified as state action. Overall, Bantam Books, Inc. v. Sullivan and Norwood v. Harrison demonstrate how private actions can be considered extensions of government action and Blum v. Yaretsky provides that for this to be the case, government action must be direct if the private actions are to be seen as an extension of the former.

Just as Norwood clarified the meaning of government action, the Supreme Court has issued a number of similar rulings over the years that have further defined the role of the state when engaging with private entities who perform a certain function of speech. The first case that provides an important clarification on this topic is Manhattan Community Access Corp. v. Halleck (2019). This case was a result of a law in New York that allowed local governments to select a private company to operate public access channels [15]. New York City designated Manhattan Neighborhood Network (MNN), a non-profit, to be the operator. When a show aired that criticized MNN, it was removed. The producers of the show sued MNN claiming that because MNN was appointed by the government, it was in violation of the First Amendment. The Court held that the city’s designation of MNN as the operator of public access channels did not make it into a state actor for First Amendment purposes [16]. The argument of the majority, written by Justice Brett Kavanaugh, rested on three main points. First, that the Free Speech Clause of the First Amendment prohibits only government abridgment of speech, but provides no restrictions for private entities [17]. With that in mind, it would naturally follow that since MNN was a private non-profit, it would not be bound by the First Amendment. Kavanaugh strengthened his opinion using precedent as he drew heavily from Jackson v. Metropolitan Edison Co. (1974), arguing that one of the things that qualified a private entity to be an extension of government action was if the entity was exercising power traditionally exclusively reserved for the state [18]. The Court said that since a variety of public and private entities had operated public access channels, their operation should not be considered an exclusively government function, and therefore MNN was not bound by restrictions that pertained to the state [19]. Finally, the Court held that even though the government regulated MNN, this did not qualify MNN to be an actor of the state. Kavanaugh compared MNN’s position to one of a government contract, or issuing of a government license, remarking in his opinion that Manhattan Community Access Corp. v. Halleck was an important case to clarify that government appointment and intense regulation does not qualify that private entity to be a state actor [20]. Another case that placed an important restriction on state power to restrict private companies came in 1974 when the Court ruled in Miami Herald Pub. v. Tornillo, that a Florida law that mandated newspapers to print a candidate’s response to editorials was unconstitutional [21]. The Court’s reasoning hinged on the idea that not only was government censorship of speech unconstitutional, but government compelling of speech—in this case, Florida forcing newspapers to print a candidate’s response—was also unconstitutional [22]. This relates to informal government coercion because it confirms that government efforts to censor certain information is not the only aspect of free speech abridgment that can be considered unconstitutional. Since government statutes to compel speech are unconstitutional, that reasoning should be extended to informal government pressure to force a private entity to perform speech in a certain way. Overall, both Manhattan Community Access Corp. v. Halleck and Miami Herald Pub. v. Tornillo provide important insights on what the government can and cannot do in its interactions with private entities with respect to free speech. These restrictions and definitions provide precedent for what qualifies as a private entity being a government actor, and what sorts of First Amendment violations can be considered if a government is informally coercing a private entity to censor or produce certain speech.

It is clear that the Supreme Court has done much to address the various aspects of government overreach for platforms that serve as a hub of public speech; however, the Court has not formulated a consistent method to respond to informal government coercion. The closest the Court has come was in its opinion in Bantam Books, Inc. v. Sullivan, but the result of that case is fairly specific, and while it creates precedent, Bantam Books does not formulate a uniform way for the Court to approach cases of this kind. Therefore, the Court must develop a strategy that examines whether or not speech was silenced, or forced, as a result of the government’s action. Such a new strategy should place the highest importance on the results of a government’s actions, while also taking into consideration the nuances of whether the state’s involvement with a private entity qualifies as state action. At times a formula such as this would be easy to employ, such as in Bantam Books, Inc. v. Sullivan. In this instance the government’s involvement—informal pressure through letters and other various communications—led to Bantam Books complying with government demands and censoring some of its publications [23]. However, in some cases it may be somewhat more challenging to determine to what degree government involvement has caused censorship. Take for example Manhattan Community Access Corp. v. Halleck, where the Court decided the actions that MNN took were not a proxy for government actions even though MNN was appointed by the New York City government [24]. Using the proposed new strategy, the same conclusion that the Court found is reached as the government’s actions amounted to nothing more than the appointment of MNN to operate the public access channels, rather than actions that caused the program to be taken off the air. A much more recent application along the lines of the proposed new approach comes from 2024 and the case Moody v. NetChoice where the Court remanded the case to the lower courts, strongly implying that the law violated the First Amendment [25]. Moody v. NetChoice came about due to a challenge to laws in Florida and Texas preventing social media platforms from restricting the content of candidates for political office in those states [26]. Although these laws were more than informal pressure, the new method should still hold—and it does. Government action here compels social media platforms to keep content that they otherwise may not want to keep up, essentially forcing speech. As was decided in Miami Herald Pub. v. Tornillo, the Court cannot compel private entities to put out speech they do not want to as that violates the First Amendment [27]. It is clear that in Moody v. NetChoice, the state governments of Texas and Florida violated the First Amendment because their actions compelled the social media platforms to allow speech they may have not wanted to, fitting nicely into the new method of focusing on the result of a government action. Now, consider this new method as it relates to an event that never was brought to court, that being the federal government’s informal pressuring of Mark Zuckerberg and Facebook during the COVID-19 pandemic. As mentioned in the first paragraph, Zuckerberg confirmed that the federal government placed pressure on Facebook that caused it to restrict certain content that went against what the federal government wanted to be published [28]. Using the new method, if this event or one like it ever came before the Supreme Court, it would be clear that the government’s actions, however informal, caused speech to be censored, displaying the First Amendment violation and confirming Facebook’s right to censor and restrict without government interference. Overall, a method of determining whether the government has overreached its powers with respect to freedom of speech should be based on the result of the government action. If the government action leads to censorship or compelled speech, the government has violated the First Amendment; if it does not then, depending on the nuances of the case, it may not be a violation at all.

While the method developed above is fairly clear, the law is nuanced and there will always be important and often grounded counterarguments to examine. In Bantam Books, Inc. v. Sullivan, Justice John Marshall Harlan dissented with the crux of his argument based on two main points. Firstly, Justice Harlan argued that the “advisory condemnation” of particular articles by the Rhode Island Commission was not enough to constitute coercion and was rather advisory in an attempt to persuade Bantam Books and similar publications not to print certain content in order to protect minors [29]. Secondly, Justice Harlan was worried that since it was not abundantly clear that the actions of the government were advisory or coercive, the Court might be overreaching on its power if it struck the case down [30]. While in the old system, Justice Harlan’s dissent had merit and brought up important concerns and distinctions, the proposed new method of examining results removes those nuances. To Justice Harlan’s first point, while under the old system of examination it could have been somewhat subjective whether or not the government actions toward Bantam Books was coercive or advisory, under the new method all that is necessary is simply to see that the government took action suggesting to Bantam Books that they should not print certain content, and as a result of that action, regardless if it was truly coercive or more advisory, Bantam Books censored their content. Here it is clear under the new method that the Rhode Island Commission violated the constitution. Furthermore, the new method debunks Harlan’s second point because it does not consider the particulars of government actions; rather, it simply considers that the government took action and as a result content was censored; therefore Rhode Island was in violation of the Constitution. Under the new method of examining informal government action to pressure private entities to restrict their content, some past concerns are no longer necessary to consider, clarifying the law and not only making it easier for people to understand, but also producing a more clearly defined line to judge whether or not the government has overstepped its power in cases regarding informal pressure to compel or censor speech. Some may argue that a system such as this is too pragmatic when in reality it is not. While the new method does focus primarily on the outcome and impact of government action, it is still critical to consider if the actions of the government can even pertain to the First Amendment. However, if it is determined that they do, a method that focuses on impact rather than the technicalities of action will do a lot to protect free expression as it will ensure that even informal acts of the government that attempt to censor or compel speech are ruled unconstitutional.

In the modern day, social media has become the public space where people go to debate and express their opinions. As government officials increasingly engage with these platforms, whether through public statements, policy suggestions, or informal pressure, the line between legitimate participation and unconstitutional coercion grows harder to see. The First Amendment’s protections should not focus on the technical details of the government’s action but on its impact. When government conduct meaningfully contributes to the censoring or compelling of speech, it threatens the core right of free expression. While it is still very important to ensure that the actions the government is taking are ones that concern the First Amendment and Free Speech Clause, the focus of courts in producing a decision should be on the impact of the aforementioned government action and whether it compelled or censored speech. The Supreme Court and lower courts must confront this reality and develop a framework that measures government interference by its real-world consequences, ensuring that speech remains free even when the tools of government coercion are subtle and the space is digital. If the government does something that compels or silences speech, it should be considered in violation of the Constitution.

Footnotes

[1] Mark Sweney, “Mark Zuckerberg Says White House ‘Pressured’ Facebook to Censor Covid-19 Content,” Technology, The Guardian, August 27, 2024, https://www.theguardian.com/technology/article/2024/aug/27/mark-zuckerberg-says-white-house-pressured-facebook-to-censor-covid-19-content.

[2] Reuters, “‘They’re Killing People’: Biden Slams Facebook for Covid Disinformation,” Media, The Guardian, July 17, 2021, https://www.theguardian.com/media/2021/jul/17/theyre-killing-people-biden-slams-facebook-for-covid-misinformation.

[3] Moody v. NetChoice, LLC, 603 U.S. 707 (2024).

[4] Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1963).

[5] Ibid.

[6] National Rifle Association of America v. Vullo, 602 U.S. 175 (2024).

[7] Norwood v. Harrison, 413 U.S. 455 (1973).

[8] Brown v. Board of Education of Topeka, 347 U.S. 483 (1954).

[9] 413 U.S. 455 (1973).

[10] U.S. Const. amend. XIV.

[11] 413 U.S. 455 (1973).

[12] Blum v. Yaretsky, 457 U.S. 991 (1982)

[13] 413 U.S. 455 (1973).

[14] 457 U.S. 991 (1982).

[15] Manhattan Community Access Corp. v. Halleck, 587 U.S. ___ (2019).

[16] Ibid.

[17] Ibid.

[18] Jackson v. Metropolitan Edison Co., 419 U.S. 345 (1974).

[19] 587 U.S. ___ (2019).

[20] Ibid.

[21] Miami Herald Pub. Co. v. Tornillo, 418 U.S. 241 (1974)

[22] Ibid.

[23] 372 U.S. 58 (1963).

[24] 587 U.S. ___ (2019).

[25] 603 U.S. 707 (2024).

[26] Ibid.

[27] 418 U.S. 241 (1974).

[28] Sweney, “Mark Zuckerberg.”

[29] 372 U.S. 58 (1963).

[30] Ibid.