Censorship Empire Strikes Back After Missouri v. Biden Victory

Prior court cases have established that unconstitutional state action includes not just (1) the state’s exercise of “coercive power,” but also (2) when the state “provide[s] such significant encouragement, either overt or covert” to private conduct; (3) when “private actors” operate as “a willful participant in joint activity with the State or its agents”; and (4) when the “formally ‘private'” action “may become so entwined with governmental policies or so impregnated with a governmental character as to become subject to the constitutional limitations placed upon state action.” Furthermore, case precedent has established that specific features of the government’s action may combine to create a compelling case for state action, especially where (5) a federal statute has immunized private conduct.

As we argued in extensive detail in our motion for the preliminary injunction, all these factors are present in the government’s actions: (1) coercion, (2) significant encouragement, (3) joint participation, (4) entwinement, and (5) legal immunity [Section 230 protections] combined with other factors [implicit and explicit threats of removing broad immunity].