The Supreme Court’s decision could have sweeping implications for government’s communications with social media about elections, public health and disinformation.
While the Biden administration is arguing for the high court to apply the test from Bantam Books v. Sullivan, which focuses on government threats and coercion, the states urged the justices to instead apply language from the 1982 case Blum v. Yaretsky. In Blum v. Yaretsky, the Supreme Court rejected claims that the government’s encouragement of private nursing homes to transfer patients to a different level of care was the equivalent of a “state action.
Rehnquist wrote at the time that a state can be held responsible for a private decision “only when it has exercised coercive power or has provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the State.” Arguing for the states, Louisiana Solicitor General Benjamin Aguiñaga acknowledged that he would have a harder time showing direct government coercion of the social media companies.
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