Take the Twitter Files to court: Sue the censors

The First Amendment protects not only speakers but also consumers, listeners and viewers. As the high court held in Virginia Board of Pharmacy v. Virginia Citizens Consumer Council (1976), when speakers are muzzled, their intended audience suffers a First Amendment violation too. Twitter users, even those who weren’t censored themselves, would therefore have standing to bring suit.

Suing federal agents would pre-empt the claim that there was no “state action.” The nub of the “nothingburger” argument is that the Twitter Files fail to show government “coercion” and Twitter therefore never became a state actor. That argument is wrong: A private party can become a state actor through voluntary joint action with the government, which the Twitter Files richly detail. But a class action against federal defendants would avoid the entire question. They’re obviously state actors.

And as the Supreme Court held in Norwood v. Harrison (1973), it is an “axiomatic” principle of constitutional law that the government “may not induce, encourage or promote private persons to accomplish what it is constitutionally forbidden to accomplish.” That’s exactly what the Twitter Files show officials from the Federal Bureau of Investigation, the Centers for Disease Control and Prevention, the Central Intelligence Agency, the Department of Homeland Security and other federal agencies doing—inducing and encouraging Twitter to censor constitutionally protected speech.