When Government Urges Private Entities to Restrict Others’ Speech

Eugene Volokh:

Say the government urges various intermediaries—bookstores, billboard companies, payment processors, social media platforms—to stop carrying certain speech. The government isn’t prosecuting them or suing them, just asking them. (This is in the news both with regard to the Biden Administration “flagging problematic posts for Facebook that spread disinformation” and Donald Trump’s lawsuits against FacebookTwitter, and YouTube, to the extent they claim government officials’ speech pressured those platforms into blocking him.) Is such government urging constitutional?

[A.] Generally speaking, courts have said “yes, that’s fine,” so long as the government speech doesn’t coercethe intermediaries by threatening prosecution, lawsuit, or various forms of retaliation. (Indeed, I understand that government officials not uncommonly ask newspapers, for instance, not to publish certain information that they say would harm national security or interfere with an ongoing criminal investigation.) Here’s a sample of appellate cases so holding:

[1.] A New York City official sent a letter urging department stores not to carry “a board game titled ‘Public Assistance—Why Bother Working for a Living.'” The letter said the game “does a grave injustice to taxpayers and welfare clients alike,” and closes with, “Your cooperation in keeping this game off the shelves of your stores would be a genuine public service.” Not unconstitutional, said the Second Circuit in Hammerhead Enterprises, Inc. v. Brezenoff (1983):

[T]he record indicates that Brezenoff’s request to New York department stores to refrain from carrying Public Assistance was nothing more than a well-reasoned and sincere entreaty in support of his own political perspective…. Where 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, a valid claim can be stated…. [But] appellants cannot establish that this case involves either of these troubling situations.

[2.] The Attorney General’s Commission on Pornography sent letters to various corporations (such as 7-Eleven) urging them not to sell pornographic magazines:

The Attorney General’s Commission on Pornography has held six hearings across the United States during the past seven months on issues related to pornography. During the hearing in Los Angeles, in October 1985, the Commission received testimony alleging that your company is involved in the sale or distribution of pornography. The Commission has determined that it would be appropriate to allow your company an opportunity to respond to the allegations prior to drafting its final report section on identified distributors.

You will find a copy of the relevant testimony enclosed herewith. Please review the allegations and advise the Commission on or before March 3, 1986, if you disagree with the statements enclosed. Failure to respond will necessarily be accepted as an indication of no objection.