It is axiomatic that government censorship violates the First Amendment. But does anything short of a government official’s commanding law enforcement to shut down a publisher or arrest a speaker qualify as censorship? What about government threats, inducements, or plain-old “jawboning”? It all comes down to the “state action” doctrine. Standard jurisprudence holds that state action exists when government threats—some not-so-loosely veiled—affect the decisions of private entities such that their actions effectively become those of the state. The same state action occurs when, in lieu of coercion, the government colludes with private actors.
Institute for Free Speech and Manhattan Institute Amicus Brief, Sixth Circuit Court of Appeals (December 5, 2022)