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Monday, April 24, 2023

Social media and state action

The court granted cert in a case from the Ninth Circuit (finding state action) and a case from the Sixth Circuit (finding no state action and taking a very different analytical approach).

Beyond the conclusion, I am concerned for how the Court approaches this. Some lower courts apply a "close nexus" test, which usually applies to purely private actors engaging in private conduct having some government connection or requirement. The analysis here should be different, where the defendant is a government employee/official and the question is whether that official status enabled his conduct. These cases should look more like rogue or off-duty cops, as opposed to labor unions collecting fees through a government-controlled process. It is a subtle difference, but it is more than semantic.

On the other hand, dammit--the publisher said no substantive changes on these edits.

Posted by Howard Wasserman on April 24, 2023 at 10:57 AM in Civil Procedure, Constitutional thoughts, First Amendment, Judicial Process, Law and Politics | Permalink

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