Note | Constitutional Law
Outsourced Censorship: A Case for Judicial Revival of the State Action Doctrine’s Encouragement Theory
by Haley Tuchman*

Vol. 93, Note (December 2020)
93 S. Cal. L. Rev. Note 1039 (2020)

Keywords: State Action Doctrine, Encouragement Theory 


Part I traces the evolution of First and Fourteenth Amendment jurisprudence and examines the existing doctrine as it pertains to the NFL’s anthem policy. Although the Court has developed a patchwork of state action tests over the years, this Note focuses specifically on the impact and necessity of expanding the state encouragement theory. Part II proposes that the President unconstitutionally coerced and influenced the NFL to change its longstanding anthem policy by unleashing a calculated media firestorm, encouraging fans to boycott games, and threatening to revoke the league’s tax-exempt status. Trump’s success in employing these unprecedented tactics to suppress speech he deemed objectionable exemplifies his willingness to disregard constitutional principles and norms in pursuit of unfettered executive control. Overall, the government’s ability to influence the NFL to depart from its longstanding position, and censor player protests, sets a frightening precedent. Part III focuses on the vulnerability of three private actors: universities, news outlets, and social media and technology companies, and assesses the mounting danger of outsourced censorship beyond the NFL. Part IV argues that the Court has abdicated a core part of its role as a co-equal branch of government by abandoning formerly-broad notions of state action and allowing the Executive Branch to hide behind private actors.

In order to combat the growing threat of outsourced censorship, the Court must revive the state encouragement theory and unequivocally apply the doctrine to cases in which the government has manifestly coerced or influenced a private actor’s speech restrictions. The future of the First Amendment is at a crossroads, and if the Court continues to turn a blind eye to the Executive’s constitutional abuses, truly meaningful speech or press protections will cease to exist.


*. Executive Development Editor, Southern California Law Review, Volume 93; J.D. 2020, University of Southern California Gould School of Law; B.A. Government 2016, University of Texas at Austin. First and foremost, I am deeply grateful to my parents, Deborah and Jeremy, who have always encouraged and supported me in everything that I do. Thank you to Professor Rebecca Brown for your steadfast faith in our Constitution and your invaluable guidance in drafting this Note. Also, many thanks to my friends and family who endured countless iterations of this argument with me. Finally, thank you to the team of editors at the Southern California Law Review who made editing during a pandemic a seamless process. I have the utmost respect and appreciation for your exceptional work.