Missouri v. Biden
In Missouri v. Biden, a federal district court ruled against the Biden Administration in a challenge to its liberal censorship on social media, and identified and applied a five-factor test for state action:
|“||Government action can exist in at least five circumstances: (1) action that results from the State's exercise of "coercive power," id. at 295, 298 (quoting Blum v. Yaretsky, 457 U.S. 991, 1004, 102 S. Ct. 2777, 73 L. Ed. 2d 534 (1982)); (2) action that results from the state providing "significant encouragement, either overt or covert," to a private action, id. (quoting Blum, 457 U.S. at 1004); (3) action that results from a private actor operating as a willful participant in joint activity with the State or its agents, id. (quoting Lugar v. Edmondson Oil Co., 457 U.S. 922, 941, 102 S. Ct. 2744, 73 L. Ed. 2d 482 (1982)); (4) action that is entwined with governmental policies, or when the government is entwined in the management or control of the private action, id. (quoting Evans v. Newton, 382 U.S. 296, 299, 86 S. Ct. 486, 15 L. Ed. 2d 373 (1966)); and (5) action with specific features that combines to create a compelling case for state action, especially where a federal statute has immunized private conduct. Skinner v. Ry. Lab. Executives' Ass'n, 489 U.S. 602, 615, 109 S. Ct. 1402, 103 L. Ed. 2d 639 (1989).||”|
Missouri v. Biden, No. 3:22-CV-01213, 2023 U.S. Dist. LEXIS 46918, at *81 (W.D. La. Mar. 20, 2023).
Biden appealed to the Fifth Circuit for an immediate stay of the injunction against the Biden Administration by the district court, in Case No. 23-30445. Biden's appellate brief cited 29 precedents, many which stand for merely a general, uncontroversial principle of law:
- Board of Regents of the Univ. of Wis. Sys. v. Southworth, 529 U.S. 217, 229 (2000) (“While the government may not coerce private parties to act on its behalf to achieve indirectly what it could not do directly, courts have set a high threshold for finding such coercion to give the government sufficient latitude to 'advocate and defend its own policies'”).
- Nken v. Holder, 556 U.S. 418, 426 (2009) (a motion for stay pending appeal is governed by a four-factor test)
- Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U.S. 592 (1982) (“Supreme Court determined that Puerto Rico had parens patriae standing to sue the federal government to safeguard its quasi-sovereign interests.”)
- Haaland v. Brackeen, 143 S. Ct. 1609, 1640 (2023) (States cannot bring parens patriae actions against the federal government)
- United States v. Texas, 599 U.S. __, 2023 WL 4139000 (June 23, 2023) (ruling against standing by States)
- O’Shea v. Littleton, 414 U.S. 488, 495-96 (1974) (“Past exposure to illegal conduct does not in itself show a present case or controversy regarding injunctive relief ”; a plaintiff must show a “real and immediate threat of repeated injury” )
- City of Los Angeles v. Lyons, 461 U.S. 95, 101-108 (1983)
- O’Handley v. Weber, 62 F.4th 1145, 1158 (9th Cir. 2023) (courts have “drawn a sharp distinction between attempts to convince and attempts to coerce”)
- Louisiana Div. Sons of Confederate Veterans v. City of Natchitoches, 821 F. App’x 317, 320 (5th Cir. 2020) (per curiam)
- Peery v. Chicago Hous. Auth., 791 F.3d 788, 790 (7th Cir. 2015).
- Kennedy v. Warren, 66 F.4th 1199, 1208 (9th Cir. 2023) (proper attempts to persuade can include “forceful” criticism using “strong rhetoric”)
- VDARE Found. v. City of Colorado Springs, 11 F.4th 1151, 1164 (10th Cir. 2021)
- X-Men Sec., Inc. v. Pataki, 196 F.3d 56, 68-72 (2d Cir. 1999)
- Penthouse Int’l, Ltd. v. Meese, 939 F.2d 1011, 1015-1016 (D.C. Cir. 1991)
- Blum v. Yaretsky, 457 U.S. 991, 1004 (1982) (improper when government “has exercised coercive power or has provided such significant encouragement, either overt or covert,” over a private decision “that the choice must in law be deemed to be that of the [government]” and generalized pressure is insufficient; to be actionable the government must compel “the specific conduct of which the plaintiff complains”)
- Bantam Books, Inc. v. Sullivan, 372 U.S. 58 (1963) (an agency should not identify certain books as “objectionable” in a notice to distributors that emphasized the agency’s “duty to recommend ... prosecution of purveyors of obscenity”
- RFK Jr. Roundtable on Censorship, incl Jenin Younes who represented plaintiffs in Missouri v. Biden.
- Highlights from the First Decision in the Landmark First-Amendment Case, Missouri v. Biden, by Eric Zuesse, August 24, 2023.