The Future of Government Pressure on Social Media Platforms

As vast social media platforms undertake more content policing, the U.S. government has unsurprisingly tried to urge them to police things the way it prefers. This is likely to continue and, indeed, expand. What First Amendment constraints are there on such government pressure? This essay offers some tentative thoughts: 1) Some court of appeals cases have drawn lines distinguishing permissible attempts by government to persuade intermediaries to remove their users' or business partners' materials from impermissible government coercion. 2) The Supreme Court's employer free speech cases may also inform our understanding of what counts as subtle coercion. 3) Courts considering other constitutional rights, especially the Fourth Amendment, have concluded that even noncoercive government persuasion may sometimes constitute impermissible evasion of the constitutional mandate. 4) A recent appellate decision (which the Supreme Court vacated on procedural grounds) suggests a potential distinction between ad hoc and systematic attempts to persuade platforms to remove content, though whether that line is ultimately either sensible or administrable is an open question.