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Well clearly the government is engaged in viewpoint discrimination in choosing which content to flag, and clearly it's a state actor, so I guess the only question is whether the government sending a note to Twitter asking for it to remove the speech constitutes interference with your speech. I think it does... there is a power dynamic, and even if there weren't, the government is still attempting to silence your speech. (And in practice, it seems, succeeding.)
But Twitter can just... not remove the speech if it thinks the speech does not violate its policies. Maybe if Twitter was just rubber stamping government requests it would be different but even the Intercept article notes Twitter declined to remove a bunch of content the government flagged.
But the government has good reason to believe that the speech violates the policy, and that pointing out the content will result in censorship. And in this instance the government helped to make the policy!
Let's imagine a non-political scenario. Knitters Only is a forum for knitters, with a strict policy against any crochet or macrame content. It is clear to all that such content, if discovered, will be removed. A user posts about their latest crochet project. An agent of the government discovers the crochet content and notifies the admins of Knitters Only. It's not an edge case, the agent is certain that their report will result in the content being removed. Has the government engaged in censorship?
In the real world, the government is much less likely to put pressure on a small forum on an obscure topic like knitting, than it is on Twitter, Facebook, etc. If the government has no control over the forum, as would be true for a real knitting forum, this wouldn't be censorship. If the knitting forum was more like Twitter or Facebook, it would be censorship that by coincidence the forum wanted to censor anyway.
What if, but for the government's action, the content would have stayed up?
Let's say the forum is very popular, has a single admin, and the users aren't interested in helping to enforce the rules. There's practically no chance that the admin would see a crochet comment buried in a thread that's hundreds of pages long. In this scenario the government informing the admin of the content is both necessary and sufficient for the content to be taken down.
I don't believe there has to be any coercion, even the lightest implied coercion, to consider this government censorship. The owners of a site could be delighted to have the government's assistance in identifying violations of their rules. They could be powerful donors to the people in charge and have zero fear about rejecting a report by the government. It's no less the case that the government is a participant in the censorship.
If the government is truly acting without coercion, either explicit or implied, it's not censorship. On a knitting forum, this might be true. On Twitter or other social media, it's not.
I disagree, and I'll go one step further: if the government merely published recommended speech codes and websites freely implemented the recommendations, without any aid from the government in enforcing the speech codes, this would still be state action and a violation of the First Amendment.
In Georgia v McCollum it was held that defense attorneys exercising peremptory challenges in voir dire were performing state action, and so were barred from racial discrimination in exercising those challenges. In Norwood v Harrison the court found that providing free textbooks to segregated private schools was a form of prohibited state action.
Imagine if a city government published a recommendation for which parts of the city different races ought to live. It's a mere recommendation, there's no kind of enforcement mechanism, no cost or benefit to obeying or disobeying. Even so, I have no doubt that SCOTUS would find this to be a Fourteenth Amendment violation.
Governments don't just randomly produce recommendations, so almost any recommendation from the government is implied coercion, including that. The clause "if the government is truly acting without coercion" is a rare event.
Of course they do. See the food pyramid.
Suppose the food pyramid recommended healthy foods for white people and junk food for black people. What would SCOTUS say to the black man suing the government after his steady diet of Big Macs made him obese and diabetic? No one forced you to follow the recommendation?
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