21 June 2022
But in certain instances, the actions of private parties can be considered "state action." That is, they may take on the mantle of the government if there is such a "close nexus" or "pervasive entwinement" between the government and the challenged action that, as the Supreme Court put it in Brentwood Academy v. [...] Perhaps most revealing – and damning – the documents indicate the Board planned to meet with two Twitter executives "to discuss operationalizing public-private partnerships between DHS and Twitter, as well as [to] inform Twitter executives about DHS work on [disinformation], including the creation of the Disinformation Governance Board and its analytic exchange." According to the whistleblower's a. [...] "Operationalizing" public-private partnerships in the context of government actions intended to suppress certain content the government identifies as "disinformation" certainly raises red flags under the First Amendment jurisprudence finding private entities are engaged in state action based on "pervasive entwinement" or "joint participation" with the government. [...] The problem arises when private entities cede their independent decision-making authority to the government by virtue of the close nexus or pervasive entwinement between the two. [...] The views expressed in this Perspectives do not necessarily reflect the views of others on the staff of the Free State Foundation or those affiliated with it.