The attorneys general of Missouri and Louisiana have just sued the Biden administration, accusing it of successfully pressuring the tech giants to suppress people’s speech. Oddly, they filed their lawsuit in Louisiana, where they will likely have to prove the Biden administration coerced the tech giants to do this, not in Missouri, where they could also win their lawsuit just by proving the tech giants colluded with Biden to limit speech, even without proof that the tech giants were coerced into doing so.
The two attorneys general have jointly filed a suit against the Biden administration in Monroe, Louisiana, claiming that Biden’s team has been working directly with Big Tech going back to the early days of the 2020 election, pressuring Facebook, Twitter, YouTube, and others to take down dissenting opinions. The Washington Examiner reports:
The Republican attorneys general of Missouri and Louisiana accused President Joe Biden and other top government officials in a lawsuit Thursday of colluding with social media giants such as Facebook, Twitter, and YouTube to censor and suppress speech under the guise of combating dangerous misinformation.
Missouri Attorney General Eric Schmitt and Louisiana Attorney General Jeff Landry filed the suit in an attempt to demonstrate the Biden administration’s alleged work with Big Tech companies to suppress speech pertaining to COVID-19-related information, election integrity, and other topics unfairly.
The lawsuit claims that Biden and his supporters, during the 2020 election campaign and now in office, have directly worked with executives and employees of Big Tech companies to censor content related to controversial political debates over the past two years.
But it’s not clear that the attorneys general can show the Biden administration pressured the tech giants enough to legally amount to coercing them to restrict speech — as opposed to just colluding with the tech giants to restrict speech. Coercion is a clear-cut violation of the First Amendment. Collusion is only a violation of the First Amendment, according to the Missouri-based 8th Circuit Court of Appeals.
The Eighth Circuit Court of Appeals ruled in 2005 that you can sue under the First Amendment when the government merely colludes with a private entity to restrict your speech — and you can sue that private entity, along with the government officials who colluded with it to restrict your speech. See Dossett v. First State Bank, 399 F.3d 940 (8th Cir. 2005).
Most courts, however, haven’t gone that far. They have merely said you can sue when the government uses pressure to coerce a private entity to restrict your speech (as opposed to colluding with it). For example, the federal appeals court in New York ruled that a city official’s letter urging a billboard company to stop displaying a church’s anti-homosexuality billboard potentially violated the First Amendment, since the letter cited his “official authority as ‘Borough President of Staten Island’ and thus could constitute an “implicit” threat, even though the official lacked direct regulatory authority over the billboard company and did not explicitly threaten any reprisals. See Okwedy v. Molinari, 333 F.3d 339 (2d Cir. 2003).
Similarly, that court revived a free speech lawsuit by businessman over a village official’s letter to the Chamber of Commerce criticizing it for publishing the businessman’s ad critical of village policies in the Chamber’s publication. Rattner v. Netburn, 930 F.2d 204 (2d Cir. 1991).
And other federal appeals courts ruled that pressure on government contractors to fire employees for their speech violated the First Amendment. See Korb v. Lehman, 919 F.2d 243 (4th Cir. 1990); Reuber v. U.S., 750 F.2d 1039 (D.C. Cir. 1985).
To take advantage of the Eighth Circuit’s favorable ruling in Dossett v. First State Bank, the attorney generals needed to file their lawsuit in a state in the 8th Circuit, where the Dossett decision is binding precedent. But they didn’t. Oddly, they filed their lawsuit in Louisiana instead.
They could easily have sued in Missouri — where the headquarters of the Eighth Circuit is located (its main office and en banc courtroom is in St. Louis, Missouri) — because one of the two attorney generals is himself a Missouri official, alleging constitutional violations that had an impact in Missouri.
