Former President Donald Trump has sued Twitter, Facebook, and Google for blacklisting him from their platforms on the grounds that their censorship violates the First Amendment.
At first glance, that seems like a stretch. The First Amendment protects people from actions by the federal and state governments, not private actors. It begins with the phrase, “Congress shall make no law” and then sets out what Congress cannot do: declare an official religion, prohibit the free exercise of religion, abridge the freedom of speech or press, or curtail the rights to peaceably assemble or petition the government for a redress of grievances.
Initially, those rules only applied to the federal government. But now the Fourteenth Amendment is understood as applying those rules to state governments also.
So most legal analysts’ initial reaction to a First Amendment suit against a private company is to simply dismiss it. They assume that the big tech platforms can regulate content as they see fit, including kicking Trump off their platforms or shadow-banning undesirable users because they are in the private sector. Harvard Law’s Noah Feldman recently described Trump’s lawsuits as “sure losers.”
But that might be too quick. There are a number of cases in which the Supreme Court has held that actions by private actors can violate constitutional provisions ordinarily thought only to apply to state actors.
In Norwood v. Harrison, the Supreme Court unanimously found that a Mississippi program that provided textbooks to private schools, even if the school engaged in discriminatory practices, was unconstitutional on the grounds that the state could not deputize private actors to carry out prohibited activities. The Supreme Court said that it is “axiomatic that a state may not induce, encourage or promote private persons to accomplish what it is constitutionally forbidden to accomplish.”
In Railway Emplooyeee’s Department v. Hanson, the Supreme Court found state action in an agreement between a union and a private employer requiring all employees to join the union. The reason: Congress had passed a law immunizing such agreements from liability under state law. In Skinner v. Railway Labor Executives Association, the Court held that drug tests for employees by a private company constituted state action because federal regulations made railroad companies that tested employees immune from liability.
In both cases, the government was not requiring anything. But it was enough that the government encouraged the closed-shop agreements and drug testing by granting immunity.
If this rings a bell, it may be because, in Section 230 of the 1996 Communications Decency Act, Congress provided digital platforms with immunity to liability for content posted by their users. This is seen by critics as inviting censorship because it allows Facebook, Twitter, and the like to regulate the content on their platforms without incurring the liability that a publisher of a newspaper, for example, would incur.
Section 230 also has a so-called “Good Samaritan” provision that immunizes platforms from liability for “any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.” In other words, it protects Twitter or Facebook from being sued if they take down content they do not like.
Trump’s complaint against Twitter cites Norwood to argue that Section 320’s immunity means that it is a state actor when it censors content.
The complaint makes the further point that many left-wing Democrat lawmakers repeatedly urged social media platforms to kick Trump off. What is more, they often coupled these pleas with threats to strip the companies of their Section 320 immunity 0r impose new regulations if they did not comply.
“Look, let’s be honest, @realDonaldTrump’s Twitter account should be suspended,” Kamala Harris tweeted in September.
“But I do think that for the privilege of 230, there has to be a bigger sense of responsibility on it. And it is not out of the question that that could be removed,” Nancy Pelosi said in April 2019, according to the complaint.
The complaint cites over a dozen similar remarks from politicians and lawmakers.
The argument of the brief very closely follows that of Jed Rubenfeld, a professor at Yale Law School, and Vivek Ramaswamy in a Wall Street Journal op-ed from January.
“Google, Facebook and Twitter should be treated as state actors under existing legal doctrines,” they wrote. “Using a combination of statutory inducements and regulatory threats, Congress has co-opted Silicon Valley to do through the back door what government cannot directly accomplish under the Constitution.”
Trump will not be the first to attempt to hold Facebook and other technology companies liable under a state actor theory. Most of those were met with failure in the courts. The courts in those cases tended to rely on Manhattan Comm. Access Corp. v. Halleck for the proposition that a private entity can only be a state actor if it is performing a public function that is exclusively done by the government.
But that is not all that Halleck says. Exclusive public function is only one category in Halleck. The case cites two other categories: when the government compels a private company to take a particular action and when the government acts jointly with a private entity.
These could also be fruitful arguments for Trump to make given the arguments in the complaint that government actors coerced Twitter into kicking him off the platform by threatening to regulate or remove the Section 230 protections.