February 24, 2021


The letter sent by Congressional Democrats Anna Eshoo and Jerry McNerney does not explicitly threaten any particular penalties if their demands are not met — but that doesn’t mean it doesn’t violate the First Amendment, because it is sent on official “Congress of the United States” letterhead, and is signed by each of them in their official capacity as “Member of Congress.”

Government officials don’t need to make explicit threats to violate the First Amendment. Veiled threats or subtle intimidation will do. For example, the federal appeals court in New York ruled that a city official’s letter urging a billboard company to stop displaying a church’s anti-homosexuality billboard potentially violated the First Amendment, since the letter cited his “official authority as ‘Borough President of Staten Island’” and thus could constitute an “implicit” threat, even though the official lacked direct regulatory authority over the billboard company and did not explicitly threaten any reprisals. (See Okwedy v. Molinari, 333 F.3d 339 (2d Cir. 2003)).

Similarly, it potentially violated the First Amendment when a village official wrote a letter to the Chamber of Commerce criticizing it for publishing a businessman’s ad critical of village policies in the Chamber’s publication. An appeals court ruled the letter could be interpreted as a veiled threat of boycott or reprisal (See Rattner v. Netburn, 930 F.2d 204 (2d Cir. 1991)).

Here, there is an implicit threat that if companies like Google and Amazon don’t do what Congressional Democrats want — and restrict conservative speech — Congress will take away their protections under Section 230 of the Communications Decency Act — as many Democrats, including Joe Biden, have already suggested doing. That threat could very well violate the First Amendment.

Companies often heed Congressional demands.

That’s the Democrats’ hope.

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