It depends on the details of the case -- I am not familiar with this one. There is Supreme Court precedent for the position that any government "recommendation" that has direct and material financial consequences based on whether that recommendation is followed is de facto coercive and therefore illegal if used to circumvent Constitutional restrictions on the government. The historical context is abusing regulatory or tax power to force acquiescence on an unrelated policy issue that would otherwise be unconstitutional if done directly.
The limits of coercion that fall below the threshold of "material" are still not well-defined AFAIK.
That seems to be what the case will turn on: The difference between the government providing "advice" or "helpful recommendations" and implicit/explicit coercion. I don't know enough about the details here to have a strong opinion of which view is right in this case, but that seems like the central issue.
What makes it especially interesting is Facebook's legal troubles in this context. It hasn't occurred to me before, but a monopoly with the threat of anti-trust hanging over it is any government's best friend.
What's the difference between a government demand and recommendation delivered over a private channel? Sounds kind of like when the mafia recommends that a business buys their brand of insurance to protect them in the off-chance somebody comes along and smashes all their windows.
Sure the business doesn't need the insurance but they might rethink their position the first time all their windows get smashed.
Given that the government has already (pre-COVID) been wanting to enact anti-trust legislation against Facebook and Meta, one can argue that not following a recommendation is perceived by these companies to be a risk for their existence. At the end of the day, the government needs to be extremely careful here.
No but it does control the FBI and other agencies that can make your life extremely unpleasant if they like, and once that happens even if the courts rule entirely in your favor it won't be a fun ride.
"Recommendation" doesn't mean what you're implying when its coming from an entity who is responsible for tens of billions of dollars in revenue for you and for whom losing the favor of could easily result in the collapse of your business.
It also doesn't mean the same thing when, in many cases, the governments and the huge corporations are intermingled so heavily that public or private is more a matter of semantics than reality.
