The Blurry Line Between Threat and Persuasion: Missouri v. Biden and the Significant Encouragement Test

by Ben Rininger, Associate Member, University of Cincinnati Law Review Vol. 92

I. Introduction

As we hang up our masks and move forward from the COVID-19 pandemic, our social media and public health establishment still have much to reckon with. Trust in information coming from public health agencies and social media companies has decreased substantially. From April 2020 to January 2022, the percent of Americans that say they “trust what the CDC has said about the Coronavirus” decreased from 69 to 44 percent.¹ From 2016 to 2021, the percent of Americans that say that “they have a lot or some trust in the information that comes from social media” decreased from 34 to 27 percent; among Republicans, the rate nearly halved from 32 to 19 percent.² Distrust in public health institutions and social media companies is driven by a decline in trust among conservatives, who distrust both authorities’ abilities to properly identify and censor misinformation.³

Lying at the nexus of public health authority distrust and social media company distrust is Missouri v. Biden. In May 2022, the states of Missouri and Louisiana sued the Biden administration in the U.S. District Court for the Western District of Louisiana, alleging that public health officials and other federal actors threatened social media companies to remove conservative content and controversial pandemic-related content in violation of the First Amendment.⁴

This article will discuss the merits of Missouri and Louisiana’s claims, and the merits of injunctions issued by the Fifth Circuit Court of Appeals and the U.S. District Court for the Western District of Louisiana. Part II will provide an overview of the facts in Missouri v. Biden. Part II will also provide an overview of the significant encouragement test—which establishes that a government can be held responsible for a private decision when it provides significant encouragement to private actors.⁵ Part III will discuss how Missouri v. Biden relates to other significant encouragement cases, how the Fifth Circuit and District Courts’ injunctions compare, and how Missouri v. Bidenintersects with historical First Amendment values. Part IV concludes by discussing the inherently threatening nature of state “persuasion” and the need for the Supreme Court to address the issue of state encouragement of social media censorship.

II. Background

A. An Overview of Missouri v. Biden

The plaintiffs in Missouri v. Biden (“three doctors, a news website, a healthcare activist, and two states”⁶) allege that the Biden administration encouraged social media companies to censor information regarding the Hunter Biden laptop story,⁷ the lab-leak theory of COVID-19’s origins,⁸ the efficacy of masks and COVID-19 lockdowns,⁹ election integrity and the security of voting by mail,¹⁰ and the efficacy of COVID-19 vaccines.¹¹

The plaintiffs allege that Biden administration officials routinely connected:

(1) the prospect of official government action in the form of adverse legislation, regulation, or agency action—especially threats of antitrust legislation and/or enforcement and calls to amend or repeal Section 230 of the CDA[Communications Decency Act], among others—with (2) calls for more aggressive censorship and suppression of speakers, viewpoints, and messages that these officials disfavor.¹²

To support this allegation, the plaintiffs cite a series of statements made by Joe Biden, Kamala Harris, Democratic U.S. Senators and House Members, and Biden administration officials prior to and during the Biden presidency.¹³

The plaintiffs point to numerous examples of the Biden administration flagging individuals and posts for removal. The Biden administration directly asked Facebook and other social media companies to remove twelve people who, according to the Biden administration, were “producing 65 percent of anti-vaccination misinformation on social media platforms.”¹⁴ The twelve people, dubbed the “disinformation dozen,” were removed from Facebook shortly after a July 20, 2021 press conference in which the Biden administration stated that it was “reviewing” whether Section 230 should be amended to hold social media companies accountable for misinformation spread online.¹⁵ The plaintiffs emphasized strong language used by the Biden administration as well as statements by Biden officials indicating close and “tense” communications between social media companies and the executive branch.¹⁶

The plaintiffs contend that the Biden administration’s alleged threats to amend Section 230, coupled with simultaneous requests to take specific content and people off social media, make social media censorship attributable to state action, and thus subject to First Amendment scrutiny.¹⁷ In his preliminary injunction memorandum, District Court Judge Terry Doughty agreed.¹⁸ Judge Doughty identified the following communications by Biden administration officials to social media companies as “examples of coercion”:¹⁹

1. “Please remove this account immediately.”²⁰
2. “Hey folks, wanted to flag the below tweet and am wondering if we can get moving on the process of having it removed. ASAP.”²¹
3. “How many times can someone show false COVID-19 claims before being removed?”²²

On July 4, 2023, Judge Doughty issued a preliminary injunction prohibiting the Biden administration from “urging, encouraging, pressuring, or inducing” social media companies to engage in “removal, deletion, suppression, or reduction of content containing protected speech.”²³ On July 14, 2023, the Fifth Circuit stayed the injunction.²⁴ On September 8, 2023, the Fifth Circuit issued a narrower injunction against the Biden administration, upholding the lower court’s ruling that the Biden administration violated the First Amendment through encouraging the censorship of controversial medical and political figures.²⁵ The Fifth Circuit identified the significant encouragement test as the proper vehicle forassessing whether private censorship in Missouri v. Biden should be treated as state conduct.²⁶

B. An Overview of the Significant Encouragement Test

The significant encouragement test, also known as the “state compulsion test,” is one of three tests under which private action can qualify as state action.²⁷ The public function test and the nexus/joint action test are the other two tests and are not at issue in Missouri v. Biden.²⁸

The significant encouragement test is articulated in Blum v. Yaretsky.²⁹ In Blum, the Supreme Court decided 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 choice must be deemed to be that of the State.”³⁰

Numerous federal appellate cases provide illustrations of what it means for encouragement to be “significant.” Brown v. Millard County demonstrates that “mere approval or acquiescence in the actions of a private party is not sufficient to hold the state responsible for those actions.”³¹ In Brown, tenants sued a landlord, arguing that the landlord was a state actor, since the landlord called the deputy sheriff to ask how to lawfully seize tenants’ property.³² A government official providing approval of the landlord’s actions did not convert the landlord’s actions into state action.³³

National Rifle Ass’n of America v. Cuomo illustrates how oral or written statements made by public officials and directed at private parties can give rise to valid First Amendment claims.³⁴ In Cuomo, the NRA alleged that the New York Department of Financial Services (“NYDFS”) “communicated to banks and insurers . . . that they would face regulatory action if they failed to terminate their relationships with the NRA.”³⁵ Provided that this NRA assertion was true, the Court ruled that the NRA would have a First Amendment claim; the Court thus denied NYDFS’s motion to dismiss for failure to state a claim.³⁶ In Cuomo, the Court ruled that “where the comments of a governmental official can reasonably be interpreted as intimating that some form of punishment or adverse regulatory action will follow the failure to accede to the official’s request,” a First Amendment claim may arise.³⁷ Cuomo articulated a four-factor test for deciding if government conduct can reasonably be interpreted as an implied threat. The factors include:

(1) defendants’ regulatory or other decision-making authority over the targeted entities . . . (2) whether the government actors actually exercised regulatory authority over the targeted entities . . . (3) whether the language of the alleged threatening statements could reasonably be perceived as a threat . . . and (4) whether any of the targeted entities reacted in a manner evincing the perception of an implied threat.³⁸

Cuomo clarified that public officials may “[use] bully pulpits to cajole or exhort” private actors.³⁹

NRA v. Vullo provides a different four-factor test for assessing whether officials’ messages can be reasonably construed as threats.⁴⁰ The four Vullo factors include (1) officials’ word choice and tone; (2) the recipient’s perception; (3) the presence of authority; and (4) whether the speaker refers to adverse consequences.⁴¹

According to Judge Doughty, the closest factual case to Missouri v. Biden is O’Handley v. Weber.⁴² O’Handley involved the California Office of Elections Cybersecurity (“OEC”), an agency that “prioritizes . . . working closely with social media companies to be proactive so when there’s a source of information, we can contain it.”⁴³ In O’Handley, the OEC flagged the plaintiff’s post and requested that Twitter remove the post. The Ninth Circuit ruled that the flagging was permissible and did not convert Twitter’s actions into state action.⁴⁴

III. Discussion

A. Distinguishing Missouri v. Biden from Other Significant Encouragement Cases

At issue in Missouri v. Biden is not the authorization or approval of private action; rather at issue is the recommendation of private action coupled with what plaintiffs assert to be threats.⁴⁵ O’Handley establishes that state officials in the Ninth Circuit are allowed to work closely with social media companies and to flag posts to be taken down.⁴⁶ Parts of Judge Doughty’s preliminary injunction memorandum contradicts O’Handley. Judge Doughty asserts that telling a social media company executive “[p]lease take down this account immediately” is impermissibly “coercive.”⁴⁷ The only characteristic that distinguishes such a statement from merely flagging a post is the word “immediately”—which might insinuate a demand.⁴⁸ The distinction is between a strongly worded recommendation and a mere recommendation. When recommendations come from a president, it is doubtful that such a distinction makes a difference.

The biggest feature of Missouri v. Biden that distinguishes the case from O’Handley is the presence of an alleged threat. Unlike the alleged threat in Cuomo, the alleged threat in Missouri v. Biden is less concrete. In Cuomo, the NRA claimed that the NYDFS stated that the NYDFS would take regulatory action against banks and insurers if they continued to provide services to the NRA.⁴⁹ The plaintiffs in Missouri v. Biden never assert that the Biden administration threatened specific regulatory action against social media companies, should the companies have not acquiesced to specific commands. The alleged threat in Missouri v. Biden comes in the form of a soft suggestion.⁵⁰ The Biden administration let social media companies know that it was “reviewing” the prospect of taking Section 230 benefits away, considering companies’ failures to censor misinformation.⁵¹ The Biden administration merely puts forward the idea that maybe social media companies should face liability for users’ misinformation.⁵² This type of threat is of a fundamentally different character than the threat alleged in Cuomo.⁵³

B. Comparing Judge Doughty’s Injunction to the Fifth Circuit’s Injunction

The Fifth Circuit upheld Judge Doughty’s ruling that the Biden administration violated the First Amendment but issued a narrower injunction, which follows:

Defendants… shall take no actions, formal or informal, directly or indirectly, to coerce or significantly encourage social-media companies to remove, delete, suppress, or reduce, including through altering their algorithms, posted social-media content containing protected free speech. That includes… compelling the platforms to act… by intimating that… punishment will follow a failure to comply with any request⁵⁴

By narrowing Judge Doughty’s injunction, the Fifth Circuit avoided contradicting the Ninth Circuit’s ruling in O’Handley. In his preliminary injunction, Judge Doughty prohibited the Biden administration from merely “encouraging” the “removal, deletion, suppression, or reduction of content containing protected speech.”⁵⁵ Such an injunction converts the “significant encouragement test” into a mere “encouragement test.” Judge Doughty’s injunction directly contradicts O’Handley by forbidding public officials from flagging posts for removal.

The Fifth Circuit’s injunction, in contrast, affirms O’Handley’s holding that public officials can flag posts so long as “no strings [are] attached.”⁵⁶ The Fifth Circuit distinguishes Missouri v. Biden from O’Handley by identifying threatening conduct, relying on the four-factor test from Vullo.⁵⁷ In explaining how Biden administration conduct was threatening under the third Vullo factor (“the presence of authority”), the Court argued that Biden officials alluded to the “understanding native to every American… [that] the President wields awesome power.”⁵⁸ In supporting this claim, the Fifth Circuit points to Biden official statements that “concern[s] [about misinformation are] shared at the highest (and I mean highest) levels of the [White House].”⁵⁹

C. O’Handley, Missouri v. Biden, and First Amendment Values

For over 70 years, the Supreme Court has spoken about the “chilling effect” of government censorship.⁶⁰ The chilling effect occurs when individuals and groups refrain from engaging in expression out of fear of violating laws, regulations, or retaliatory government action.⁶¹ When governments recommend censorship of individuals for misinformation, they risk chilling the speech of individuals who merely have controversial information to share. Misinformation is not black and white. While some statements can be clearly proven to be misinformation, other statements exist in a gray zone.⁶² Companies may censor information that exists in this gray zone to get government officials off their backs.⁶³

The Supreme Court has not yet ruled on the question of whether governments can explicitly recommend to media companies that individuals be censored for protected speech. If the Supreme Court adopts the Ninth Circuit’s approach in O’Handley, the Supreme Court will allow individuals to be named and recommended for censorship, so long as no threat is involved. The problem with this approach is that recommendations made by governments are inherently threatening in nature; they carry with them the risk of political retaliation.⁶⁴

Even if the Court identifies one pattern of government behavior as threatening, there is little to stop governments from making minor adjustments to tailor to the Supreme Court’s definition of a threat. To identify behavior as threatening is a fact-specific inquiry. For this reason, enjoining a threat in one instance is not likely to stop subtle threats in the future.

As Alexander Hamilton said in Federalist No. 78, the Supreme Court has neither the power of the purse nor the power of the sword.⁶⁵ The Supreme Court’s main power is setting norms that the public and other branches will respect.⁶⁶ By centering the significant encouragement test on the definition of a “threat,” the Court creates a standard that the executive branch can evade while purporting to respect. Because of the vague nature of “threats” and the inherently coercive nature of government, First Amendment values may best be served by banning governments from identifying individuals for censorship altogether, so long as the speech at issue is protected speech. Such a bright-line rule leaves less room for error.

IV. Conclusion

In an interview on August 15, 2023, Missouri Attorney General Andrew Bailey stated his intention that, through litigating Missouri v. Biden, he would erect a “wall of separation between tech and state.”⁶⁷ A permanent injunction against the executive branch modeled after Judge Doughty’s preliminary injunction would have meant just that. Instead of erecting a wall, the Fifth Circuit decided to make do with the current fence that separates tech and state.

A solid wall prohibiting state encouragement of censorship of any kind could have a larger effect than any soft prohibition of threats. As Missouri v. Biden makes clear, the line between threats and persuasion can be blurry. Even when states do not threaten or suggest adverse action in any way, the reality remains that the state has the power to take adverse action. Refusing to follow any recommendation by a political actor implicitly entails the possibility of political retaliation. The only way to eliminate coerciveness from state censorship recommendations is to not allow the state to make censorship recommendations. Whether stymying the threat of misinformation is worth risking the potential of coercing speech is ultimately a constitutional value judgment—one that the Supreme Court will eventually have to address.

Cover Photo by MART PRODUCTION on Pexels

Ben Rininger

Ben Rininger is a 2L Associate Member of the University of Cincinnati Law Review. Ben is from Akron, Ohio. Ben's legal areas of interest include litigation, antitrust, banking, constitutional, and environmental law. When is Ben is not doing legal work, Ben likes to hike, kayak, play board games, travel, and spend time with friends and family.

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Amended Complaint at 13-15, 145-47, Missouri v. Biden, No. 3:22-CV-01213 (W.D. La. Oct. 6, 2022).
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Memorandum Ruling on Request for Preliminary Injunction at 58, Missouri v. Biden, No. 3:22-CV-01213, (W.D. La. Mar. 20, 2023).
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Missouri v. Biden, No. 23-30445, 2023 U.S. App. LEXIS 23965, at *6 (5th Cir. Sept. 8, 2023).
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Memorandum Ruling on Request for Preliminary Injunction at 101, Missouri v. Biden, 2023 U.S. App. LEXIS 23965 (2023) (No. 3:22-CV-01213) (“The White House Defendants made it very clear to social-media companies what they wanted suppressed and what they wanted amplified. Faced with unrelenting pressure from the most powerful office in the world, the social-media companies apparently complied. The Court finds that this amounts to coercion or encouragement sufficient to attribute the White House’s actions to the social-media companies, such that Plaintiffs are likely to succeed on the merits against the White House Defendants.”).
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Id.
42
Memorandum Ruling on Request for Preliminary Injunction at 92, Missouri v. Biden, 2023 U.S. App. LEXIS 23965 (2023) (No. 3:22-CV-01213).
43
O’Handley v. Weber, 62 F.4th 1145, 1154 (9th Cir. 2023).
44
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47
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Id.
49
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53
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54
Biden, 2023 U.S. App. LEXIS 23965, at *102-3 (emphasis added).
55
Judgment at 4, Missouri v. Biden, 2023 U.S. App. LEXIS 23965 (2023) (No. 3:22-CV-01213).
56
Biden, 2023 U.S. App. LEXIS 23965, at *74.
57
Id. at 60.
58
Id. at 73.
59
Id.
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Wiemann v. Updegraff, 344 U.S. 183, 195 (2023).
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David L. Hudson, Jr., Chilling Effect Overview, FIRE, https://www.thefire.org/research-learn/chilling-effect-overview#:~:text=The%20%22chilling%20effect%22%20refers%20to,too%20broad%20or%20too%20vague (last visited Sept. 21, 2023).
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Kevin Escandón et. al., COVID-19 False Dichotomies and a Comprehensive Review of the Evidence Regarding Public Health, COVID-19 Symptomatology, SARS-CoV-2 Transmission, Mask Wearing, and Reinfection, 21 BMC Infect. Dis. 710 (“Uncertainties and complexities are part and parcel of science, public health, and several aspects of pathogen transmission, infection, and disease. These aspects lie on a gradient of gray shades—they are hardly binary, simple, or uniform, and should not be framed as black or white.”).
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64
Joseph J. Thorndike, Tax History: Nixon Aide Tried to Weaponize the IRS by Pressuring the Commissioner, taxnotes (Mar. 13, 2023), https://www.taxnotes.com/tax-history-project/tax-history-nixon-aide-tried-weaponize-irs-pressuring-commissioner/2023/03/10/7g45r (“Weaponization is hardly new; when it comes to the IRS, it’s a bipartisan practice with a long history”).
65
The Federalist No. 78 (Alexander Hamilton).
66
Susan Sibley, The Courts in American Public Culture, The American Acad. of Arts & Sci. (2014), (“In the final analysis, he [Tocqueville] wrote, the Court ‘is clothed in the authority of public opinion’”).
67
Jason Rosenbaum, Bailey Details Why Missouri Should Help Build Wall Between ’Tech and State’, St. Louis Pub. Radio (Aug. 15, 2023), https://www.stlpr.org/government-politics-issues/2023-08-15/bailey-details-why-missouri-should-help-build-wall-between-tech-and-state.