Il governo USA durante la pandemia ha violato il diritto di freee speech dei dissenzienti esercitando eccessive pressioni sulle piattaforme

– I –  ricorda (ma molti altri l’hanno fatto) e offre il link diretto ala sentenza del 5 circuito dell’appello n. 23-30445 del 8 settembre 2023stete of Missouri et c. Biden-Fauci e altri:

– To sum up, under the close nexus test, a private party’s conduct may
be state action if the government coerced or significantly encouraged;

– They met regularly, traded information and reports, and worked together on
a wide range of efforts. That working relationship was, at times, sweeping.
Still, those facts alone likely are not problematic from a First-Amendment
perspective. But, the relationship between the officials and the platforms
went beyond that. In their communications with the platforms, the officials
went beyond advocating for policies, Southworth, 529 U.S. at 229, or making
no-strings-attached requests to moderate content, Warren, 66 F.4th at 1209.
Their interaction was “something more.” Roberts, 742 F.2d at 228.
We start with coercion. On multiple occasions, the officials coerced
the platforms into direct action via urgent, uncompromising demands to
moderate content. Privately, the officials were not shy in their requests—
they asked the platforms to remove posts “ASAP” and accounts
“immediately,” and to “slow[] down” or “demote[]” content. In doing so,
the officials were persistent and angry. Cf. Bantam Books, 372 U.S. at 62–63.
When the platforms did not comply, officials followed up by asking why posts
were “still up,” stating (1) “how does something like [this] happen,” (2)
“what good is” flagging if it did not result in content moderation, (3) “I don’t
know why you guys can’t figure this out,” and (4) “you are hiding the ball,”
while demanding “assurances” that posts were being taken down. And, more
importantly, the officials threatened—both expressly and implicitly—to
retaliate against inaction. Officials threw out the prospect of legal reforms and
enforcement actions while subtly insinuating it would be in the platforms’
best interests to comply. As one official put it, “removing bad information”
is “one of the easy, low-bar things you guys [can] do to make people like
me”—that is, White House officials—“think you’re taking action.”, p. 43

– Finally, and “perhaps most important[ly],” we ask whether the
speaker “refers to adverse consequences that will follow if the recipient does
not accede to the request.” Warren, 66 F.4th at 1211 (citing Vullo, 49 F.4th
at 715). Explicit and subtle threats both work— “an official does not need to
say ‘or else’ if a threat is clear from the context.” Id. (citing,
807 F.3d at 234). Again, this factor is met.
Here, the officials made express threats and, at the very least, leaned
into the inherent authority of the President’s office. The officials made
inflammatory accusations, such as saying that the platforms were
“poison[ing]” the public, and “killing people.” The platforms were told they
needed to take greater responsibility and action. Then, they followed their
statements with threats of “fundamental reforms” like regulatory changes
and increased enforcement actions that would ensure the platforms were
“held accountable.” But, beyond express threats, there was always an
“unspoken ‘or else.’” Warren, 66 F.4th at 1212. After all, as the executive of
the Nation, the President wields awesome power. The officials were not shy
to allude to that understanding native to every American—when the
platforms faltered, the officials warned them that they were “[i]nternally . . . considering our options on what to do,” their “concern[s]
[were] shared at the highest (and I mean highest) levels of the [White
House],” and the “President has long been concerned about the power of
large social media platforms.” Unlike the letter in Warren, the language
deployed in the officials’ campaign reveals clear “plan[s] to punish” the
platforms if they did not surrender. Warren, 66 F.4th at 1209. Compare id.,
with, 807 F.3d at 237. Consequently, the four-factor test weighs
heavily in favor of finding the officials’ messages were coercive, not
persuasive, p. 49-50;

– Given all of the above, we are left only with the conclusion that the
officials’ statements were coercive. That conclusion tracks with the decisions
of other courts. After reviewing the four-factor test, it is apparent that the
officials’ messages could “reasonably be construed” as threats. Warren, 66
F.4th at 1208; Vullo, 49 F.4th at 716. Here, unlike in Warren, the officials’
“call[s] to action”—given the context and officials’ tone, the presence of
some authority, the platforms’ yielding responses, and the officials’ express
and implied references to adverse consequences—“directly suggest[ed] that
compliance was the only realistic option to avoid government sanction.” 66
F.4th at 1208. And, unlike O’Handley, the officials were not simply flagging
posts with “no strings attached,” 62 F.4th at 1158—they did much, much
more., p. 51;

– It is true that the officials have an interest in engaging with socialmedia
companies, including on issues such as misinformation and election
interference. But the government is not permitted to advance these interests
to the extent that it engages in viewpoint suppression. Because “[i]njunctions
protecting First Amendment freedoms are always in the public interest,” the
equities weigh in Plaintiffs’ favor. Opulent Life Church, 697 F.3d at 298
(quotation marks and citations omitted), p. 64

– II –

Altra decisione in simile fattispecie è quella dell’Appello del  6° circuito 14.09.2023,  No. 22-3573, MARK CHANGIZI; MICHAEL P. SENGER; DANIEL KOTZIN v. Dipartimento della SAlute , segnalata da post del prof. Eric Goldman. Qui gli attori hanno scelto di agire contro la PA (ministero salute) invece che contro Twitter: ma si son complicati la vita, non essendo riusciti a provare il nesso causale (traceability) tra la condotta della prima e il danno allegato.

<<Traceability looks to whether a defendant’s actions have a causal connection to a plaintiff’s injuries. Lujan, 504 U.S. at 560. Causation need not be proximate, so an indirect injury can support standing. Lexmark Int’l, Inc., 572 U.S. at 134 n.6; see United States v. Students Challenging Regul. Agency Procs. (SCRAP), 412 U.S. 669, 688-89 (1973). But “‘an injury that results from [a] third party’s voluntary and independent actions’ does not establish traceability.” Turaani v. Wray, 988 F.3d 313, 317 (6th Cir. 2021) (quoting Crawford v. U.S. Dep’t of Treasury, 868 F.3d 438, 457 (6th Cir. 2017)). Thus, a plaintiff must show that the defendant’s actions had a “determinative or coercive effect” on the third party such that the actions of the third party can be said to have been caused by the defendant. See Bennett v. Spear, 520 U.S. 154, 169 (1997); see also Turaani, 988 F.3d at 316 (explaining “[a]n indirect theory of traceability requires that the government cajole, coerce, [or] command”). That the defendant is the federal government does not change this assessment. See, e.g., Skinner v. Ry. Labor Execs.’ Ass’n, 489 U.S. 602, 614 (1989) (“Although the Fourth Amendment does not apply to a search or seizure, even an arbitrary one, effected by a private party on his own initiative, the Amendment protects against such intrusions if the private party acted as an instrument or agent of the Government.”).
By this metric, Plaintiffs’ complaint falls short. Plaintiffs maintain that the timing of Twitter’s actions related to the RFI and the July Advisory as well as the public statements made by the Surgeon General, Press Secretary, and President Biden all support an inference that Twitter’s disciplinary measures are state action attributable to HHS. But Plaintiffs fail to adduce facts demonstrating that the decisions Twitter made when it enforced its own COVID-19 policy did not result from its “broad and legitimate discretion” as an independent company. ASARCO Inc. v. Kadish, 490 U.S. 605, 615 (1989)>>.