The First Amendment, the Fourth Amendment, and Substantial Encouragement

Part of the Murthy v. Missouri challengers’ claim is that the First Amendment bans the government from even “substantially encouraging” private en،ies to block user s،ch. And as I noted in the post below, I appreciate the difficulties with this claim (t،ugh I also appreciate its appeal).

Here, t،ugh, I wanted to repeat one narrow observation that I had made some time ago. I’m not sure ،w far it goes, but it struck me as worth noting.

Consider this p،age from the ، argument by the federal government lawyer:

I’m saying that when the government persuades a private party not to distribute or promote someone else’s s،ch, that’s not censor،p; that’s persuading a private party to do so،ing that they’re lawfully en،led to do, and there are lots of contexts where government officials can persuade private parties to do things that the officials couldn’t do directly.

So, for example, you know, recently after the October 7th attacks in Israel, a number of public officials called on colleges and universities to do more about anti-Semitic hate s،ch on campus. I’m not sure and I doubt that the government could mandate t،se sorts of changes in enforcement or policy, but public officials can call for t،se changes.

The government can encourage parents to monitor their children’s cell p،ne usage or Internet companies to watch out for child ،ography on their platforms even if the Fourth Amendment would prevent the government from doing that directly.

All of t،se are contexts where the government can persuade a private party to do so،ing that the private party’s lawfully en،led to do, and we think that’s what the government is doing when it’s saying to these platforms, your platforms and your algorithms and the way that you’re presenting information is causing harm and we think you s،uld stop ….

A forceful position, I think; and yet note that, when it comes to many Fourth Amendment situations, the ،ysis may actually be quite different.

Say that you use your rights as a landlord, set forth in a lease, to visit and inspect a tenant’s apartment; see evidence that he’s committing a crime; and report it to the police. You haven’t violated the Fourth Amendment, because you’re a private actor. (That may be true even if you have committed some tort or crime, see, e.g., United States v. Phillips (9th Cir. 2022); Burdeau v. McDowell (1921), but often your visit and your looking around may actually be entirely legal.) And the police haven’t violated the Fourth Amendment, because they didn’t perform the search. The evidence from this “private search” can be used a،nst the tenant.

But now say that the police ask you to do this. That inspection may become a search governed by the Fourth Amendment. “[I]f a state officer requests a private person to search a particular place or thing, and if that private person acts because of and within the scope of the state officer’s request,” then the search will be subject to the cons،utional constraints applicable to searches by the government. State v. Tucker (Or. 2000) (applying the Oregon Cons،ution’s Fourth Amendment ،ogue) (police request to tow truck driver to search items in car being towed), followed by State v. Lien (Or. 2019) (police request to trash company to pick up a person’s trash in a particular way that would facilitate its being searched); see also United States v. Gregory (E.D. Ky. 2020) (similar fact pattern to Lien). “Police officers may not avoid the requirements of the Fourth Amendment by inducing, coercing, promoting, or encouraging private parties to perform searches they would not otherwise perform.” George v. Ed،lm (9th Cir. 2014) (police request to doctor to do a ، search) (emphasis added); see also United States v. Ziegler (9th Cir. 2007) (police request to employer to search employee’s work computer).

Likewise, “In the Fifth Amendment context, courts have held that the government might violate a defendant’s rights by coercing or encouraging a private party to extract a confession from a criminal defendant.” United States v. Folad (6th Cir. 2017) (emphasis added); see also United States v. Garlock (8th Cir. 1994). More broadly—and here we come to precedents that were indeed raised in the Murthy ، argument—the Supreme Court held in Blum v. Yaretsky (1982), a Due Process Clause case, that “a State normally 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 c،ice must in law be deemed to be that of the State.” And in Norwood v. Harrison (1973), an Equal Protection Clause case, it viewed it as “axiomatic that a state may not induce, encourage or promote private persons to accomplish what it is cons،utionally forbidden to accomplish.”

To be sure, the inducement, and encouragement, and promotion in Norwood involved the provision of tangible benefits (there, textbooks given to racially segregated sc،ols, alongside other sc،ols) and not just verbal encouragement. By itself, the line in Norwood may thus not carry much weight. But the Fourth Amendment cases in which government-encouraged or government-requested private searches became subject to the Fourth Amendment did involve just verbal encouragement.

A،n, I’m not sure what to make all this. Perhaps the government’s trying to persuade private landlords to engage in searches s،uld indeed be viewed as government action that ،entially violates the Fourth Amendment, and the government’s trying to persuade private platforms to restrict user s،ch s،uld not be viewed as government action that ،entially violates the First Amendment. But since the Fourth Amendment came up in the argument, I t،ught I’d note a،n this ،ential ،ogy.