The Facebook Files

"Smoking-gun documents" prove Facebook censored Americans on behalf of White House.

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Part 2

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This is another clear cut example that we’re dealing with a new Leviathan with unchecked power to make extraconstitutional political judgments under the mantle of private enterprise. The Biden administration has co-opted Silicon Valley to do through the back door what government cannot directly accomplish under the Constitution.

The Supreme Court held in Norwood v. Harrison (1973) that it is “axiomatic” that the government “may not induce, encourage or promote private persons to accomplish what it is constitutionally forbidden to accomplish.”

Governmental threats can turn private conduct into state action—that’s what the courts have said for more than half a century now. For example, in Bantam Books v. Sullivan (1963), the Supreme Court found a First Amendment violation when a private bookseller stopped selling works state officials deemed “objectionable” after they sent him a veiled threat of prosecution. And in Carlin Communications v. Mountain States Telephone & Telegraph Co. (1987), the Ninth U.S. Circuit Court of Appeals found state action when an official induced a telephone company to stop carrying offensive content, again by threat of prosecution.

As the Second Circuit held in Hammerhead Enterprises v. Brezenoff (1983), the test is whether “comments of a government official can reasonably be interpreted as intimating that some form of punishment or adverse regulatory action will follow the failure to accede to the official’s request.”

Just like in the Twitter Files, Facebook has been suppressing the kind of political speech the First Amendment was designed to protect. Americans who’ve been claiming that these social media companies — and the Biden administration — are violating their constitutional rights are 100% correct.