Article

Beyond Coercion: Rethinking State Action Doctrine for Government-Platform Speech Regulation

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Abstract

When government officials pressure social media platforms to remove content, does the First Amendment apply? Current state action doctrine answers this question with a binary test: either the government coerced the platform, triggering constitutional scrutiny, or it merely persuaded, leaving users without recourse. The Supreme Court's recent decision in Murthy v. Missouri exposed the inadequacy of this framework. Faced with a sustained campaign of government pressure combining repeated high-level contacts, veiled regulatory threats, and positive reinforcement for compliance, the Court could not reach the constitutional merits and as dismissed on standing grounds. This Article argues that the coercion-persuasion binary fails to capture the spectrum of modern government-platform relationships and proposes a sliding scale framework as an alternative. Rather than asking whether the government coerced the platform in some binary sense, courts should weigh the degree of government pressure against the strength of the platform's independent editorial judgment. This approach accounts for platforms' own First Amendment rights, recognized in Moody v. NetChoice, while protecting users from censorship that operates through private intermediaries influenced by the state. The framework preserves legitimate government-platform cooperation while identifying the point at which sustained pressure transforms nominally private moderation decisions into unconstitutional state action.