You Don't Become a "State Actor" Just by Getting Government Funding or Benefits,

and you (whether you're Google or a private university or anyone else) don't become restricted by the Bill of Rights because you get such funding or benefits.


A commenter on the Tulsi Gabbard v. Google thread writes:

If Google had never received a dime of local, county, state, or federal payola, and if Google had never assisted any state actor in the collection, maintenance, and sharing of data obtained pursuant to use of Google, and if there was no immunity from civil liability conferred upon Google for intentionally or negligently publishing defamatory material, or republishing the same, or for de-platforming the speech of others, then, I might be inclined to side with the Googlemeister.

[1.] As a legal matter, it's clear: The First Amendment, by its own terms, applies only to the federal government; the Fourteenth Amendment applies the same rules to state and local governments; but private institutions—search engines, newspapers, employers, universities, landlords, and such—aren't covered. That's the so-called "state action doctrine" (with the "state" referring to the government, whether state or federal), and it explains why a newspaper or Google or others can pick and choose what to publish, what ads to run, and the like.

[2.] The Supreme Court held, in Rendell-Baker v. Kohn (1982), that government funding doesn't make private entities "state actors." If the government attaches speech-restrictive strings to the funding (e.g., "We'll give you these funds only if you promise to restrict speech"), then the government may be held responsible for the speech restrictions. But if the government just gives the funds, and the private entity imposes speech restrictions entirely on its own, then there's no First Amendment problem. And the Court held this in a case where the recipient was a private school that got 90% of its funding from the government.

[3.] Likewise, getting government benefits—even being given legal monopoly status (which Google doesn't have)—doesn't make you a state actor bound by the Bill of Rights. See Jackson v. Metropolitan Edison Co. (1974) (on which Rendell-Baker relied).

[4.] Now this all has to do with whether the Bill of Rights constrains the private entity; statutes aren't subject to the state action doctrine, unless they are specifically limited to restricting the government. Congress imposes many statutory restrictions on private entities, whether attached to funding (as in Title VI or Title IX, which generally require recipients of federal funds not to discriminate based on race or sex) or not (as in Title VII, which generally bars most employers from discriminating, whether or not they get government funds). States might impose similar restrictions, though perhaps not on inherently interstate communications media.

Sometimes the First Amendment might itself constrain such restrictions on private entities (see, e.g., the Boy Scouts v. Dale case). But in any event, it takes a statute to restrain private entities this way, and Congress has never passed a statute purporting to limit Google's ability to restrict speech on its platforms.

[5.] Of course, I'm talking here about the law as it is; some might argue for rejecting the state action doctrine, or for enacting statutory constraints on Google and the like. But that's not the law today; and, if you think it ought to be the law, you might want to consider just what its scope should be: If you live in government-subsidized housing, should you be barred from ejecting guests based on their speech or their religious beliefs, on the theory that what you do on government-subsidized property becomes "state action"? If you get social security or the Earned Income Tax Credit or a government salary or similar benefits, should you be barred from engaging in viewpoint discrimination or religious discrimination in any projects you set up using that money? If you have a hard-to-get professional license—you're a doctor or a lawyer or some such—should you likewise be subject to the First Amendment or the Due Process Clause or the Equal Protection Clause in all your professional decisions?

NEXT: Tulsi Gabbard Loses "Free Speech" Lawsuit Against Google

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  1. Too many people are far too eager to expand government, damn the consequences. Any perceived ill — their solution is to expand government ills into more areas instead of removing the existing ills.

    1. Too many people are too eager to expand government suppression of speech via means of acting in concert with private entities, like Google, who act in concert with state actors to muzzle speech, damn the consequences.

      1. Exactly. Your solution to this alleged government-crony tie-up is yet more government involvement. Thanks for proving my point.

      2. Google — like every other person and entity in the country — may sometimes act in concert with state actors, but it does not “act in concert with state actors to muzzle speech.” Which is why there was no such allegation in the frivolous suit, or any other such.

  2. Manhattan Community Access Corp. v. Halleck, was a United States Supreme Court case related to limitations on First Amendment-based free speech placed by private operators. While the case deals with speech limited by a public access television station, questioning whether the station was a state actor or a private entity, analysts expect the case will determine if private operators’ limitations on free speech on social media violate First Amendment rights. The Court ruled that the station was not considered a state actor for purposes of evaluating free speech issues in the 5-4 ruling along ideological lines. (Wiki)

    I think this was on the VC last year.

  3. Professor Vololh’s comment ignores the reality that Google does cooperate with state actors to muzzle speech.

    The FA does not admit of any exception sparing from its reach private entities who act in concert with state actors to suppress speech.

    The Professor’s reliance upon Rendell-Baker v. Kohn is misplaced as the private actor in that case, New Perspectives School, was not Google and it did not collect and share its users data with the deep state and it did not actively cooperate with communist dictatorships to restrict speech.

    Moreover, the more persuasive, and relevant, argument made in Jackson v. Metropolitan Edison regarding the application of the state action doctrine was penned by Justice Douglas, at 419 U.S. 359-364.

    1. “did not actively cooperate with communist dictatorships to restrict speech.”

      Pretty sure communist dictatorships restricting speech isn’t a First Amendment violation either.

      1. If you are an American who believes such rights are inherent, then they are violated by communist regimes inside those regimes. It need not be written down, and most certainly does not need an oppressor to agree to it. Why let other angry dictators tell you what rights you have? Why did you let your philosophy get into such a position?

        Do not grant them any philosophical leeway.

        1. I have no doubt that communists dictatorships violate all kinds of rights. That doesn’t make a company that cooperates with them an agent of the United States government subject to a lawsuit under the First Amendment. That is what we are discussing.

    2. What’s your basis for this claim about the “reality” of google’s coordination?

      1. Are you doubting that Google did not help the Chinese communists in censoring speech?

        1. Have you never heard of Project Dragonfly?

        2. I’m doubting that’s a First Amendment violation.

          1. Is helping China kill people a violation of the right to life?

            Then why not liberty?

            1. What does that have to do with First Amendment lawsuits against Google?

    3. Why does your solution to government overreach involve more government overreach?

    4. Moreover, the more persuasive, and relevant, argument made in Jackson v. Metropolitan Edison regarding the application of the state action doctrine was penned by Justice Douglas, at 419 U.S. 359-364.

      Are you hoping most people won’t realize that you’re citing a dissent?

  4. Why the “private” part of fascism is so effective …

  5. And still no commentary about Schumer’s threat of violence against TWO!!!! SCOTUS justices?????

    1. I haven’t heard about anyone storming the Court after he spoke, so it probably wasn’t incitement. Are you honestly claiming that Schumer made a true threat instead of just an ass of himself?

      1. It was jaw-boning, but enough of a semi-veiled threat that Schumer did both threaten the Court AND make an ass of himself. Trump, to his credit, just calls out judges for lack of (in his opinion) impartiality and/or bad decisions.

        That said, I don’t really care that the Court was threatened. The Court has a long history of being threatened and maybe they wouldn’t make controversial decisions if they were jaw-boned more. They don’t have to run for re-election and a paid well and have a very high status.

    2. DWB,
      Since everyone’s take was:
      1. We get that he was speaking metaphorically and not issuing an actual threat. And…
      2. It still was a really bad move. And…
      3. Everyone along the political spectrum has said publicly that it was a bad idea and that Schumer should apologize . . .

      . . . I guess none of the Conspirators found it worthy of creating a new post about it.

      When Trump has told lies (or repeated factually incorrect statements of fact) about the coronavirus, those things are infinitely more likely to cause additional physical harm and/or death to Americans. Including federal judges (assuming any federal judge would ever be stupid enough to believe anything Trump says without independent confirmation). But still, no series of outraged posts on the VC from any of the Conspirators. It’s almost like each individual Conspirator has his or her own idea of what is interesting enough, novel enough, and important enough to be worth the time to create a post.

      My takeaway:
      1. It is never a good idea to make threats against the judiciary. Even joking threats. Even veiled threats.
      2. It is much worse when a threat comes from a politician.
      3. Schumer really screwed up.
      4. He should apologize. Unambiguously and contritely.
      5. The rest of us should withhold our urge to vent our fake outrage, and perhaps save it for examples of genuine threats.

      YMMV, of course.

      1. Are you FUCKING kidding me? I have just spent the last 3 years listening to every brain-fart from Trump’s mouth/fingers described as if he was LITERALLY Adolph Hitler!


        1. So it’s not for the substance that you want a post, it’s for partisan revenge.

          Maybe don’t put that much of your validation into a blog. Or partisanship. It seems to have made you unhappy lately.

          1. Are you ready to reject your past racism and sexism?

            Love trumps hate …

            1. Hard to take this as a good faith argument based on your 5:53pm rage-post.

              1. So, no? One day you may find letting go of your hate will set you free

                1. The thing about trolling is it doesn’t work when you drop the mask and reveal your actual thinking.

                  It’s quite clear you don’t actually think affirmative action is hate. You’re arguing in bad faith, motivated not by reason but rather by resentment.

                  That’s pretty sad, and I’m not going to enable your vice further.

                  1. One of the surprisingly good things about a Trump is that more and more Republicans are using Democrat tactics right back at em — with good effect.

                    And you ARE a racist. You ARE a sexist.

                    And yes, those people have their excuses why they are “correct” — just like you.

      2. “But what about this other unrelated thing Trump did”…

        1. I agree, what Sen. Schumer said was despicable and wrong, and is not defended by reference to anything Pres. Trump or anyone else has said or tweeted. So please stop trying to defend Pres. Trump’s words and actions the exact same way.

      3. We get that he was speaking metaphorically and not issuing an actual threat

        A physical threat, perhaps. Other actual, real consequences, not so obvious.

  6. I had a formatting issue with this OP. When I first read it; it was impossible to know where the quoted section ended and EV’s comment started. (EV did use numerals, which suggested that this was the beginning of his own original thoughts…but it was not at all clear to me.)
    Maybe indent that first quoted bit? (Does Reason even allow a Conspirator to do this type of formatting?)
    Maybe use boldface? Or a brief line to separate old from new? Or at least put quote marks around the, well, quoted material?
    Voila! Like this. Problem solved. 🙂

    1. Sorry — I originally forgot to block-quote the quoted material; I’ve since corrected that.

  7. Indeed.

    “The First Amendment, by its own terms, applies only to the federal government”

    And for good reason. The framers would have never considered giving federal judges broad jurisdiction over state and local governments on this and the endless litany of matters dictated by the federal government today. States have their own guarantees of free speech in their own constitutions.

    States, with their more localized representation, were intended to be the primary mechanism of government in most spheres of government. It was only by this arrangement that something resembling the founding idea of self-governance could be hoped to be achieved. And even with this arrangement, there were grave and well-founded doubts at the time that this vast nation — though much smaller and less populous than today — could be under a single government, even limited to the specific enumerated powers, and still retain liberty and self-government.

    “the Fourteenth Amendment applies the same rules to state and local governments”

    It appears at least questionable to me whether the Fourteenth Amendment was originally understood in this way. Rather, it was sixty years later that the court began assuming such new powers.

    1. Actually, a strict read of the text does not lend itself to the construction proffered by the professor.

      Are you familiar with the interpretive cannon “expressio unius est exclusio alterius?” The fact that the text prohibits Congress from making any law to restrict speech does not thereby mean that private entities, acting in concert with the state, are free to do so.

      1. The fact that it refers to freedom of speech then apparently does not mean it is limited to free speech, and presumably can be applied to anything you want. Say, “Congress shall make no law abridging freedom of commerce in apricots.”

        Better tell the FDA that Libertymike is coming to get them.

      2. “The fact that the text prohibits Congress from making any law to restrict speech does not thereby mean that private entities, acting in concert with the state, are free to do so.”

        True, but I don’t understand your point. Private entities don’t need authorization in the Constitution to do things.

      3. “The fact that the text prohibits Congress from making any law to restrict speech does not thereby mean that private entities, acting in concert with the state, are free to do so.”

        Right, private entities may not pass laws restricting free speech. But it’s not the First Amendment that keeps private entities from passing laws. Article I does that with the whole bicameralism and presentment requirement.

  8. Pruneyard. Janus. Avenues to explore?

    1. I’m quite surprised that there has been little discussion of the Pruneyard decision in California. Google, Facebook, YouTube, etc. have become more analogous to the public square than a local shopping center in the 70s; and far more important to free expression.

      1. I was curious about that as well. It does seem that the California Supreme Court has been trimming back Pruneyard (now it’s apparently limited to areas designed for people to congregate rather than as a way to get to and from stores, for example), but it definitely seems like these kinds of claims would have a much better shot under Pruneyard than the First Amendment.

  9. If you think Google is censoring things for the state, then use another search engine. That is, unless there’s an anti-boycott law in your state….

  10. So, two points.

    1. Google and the other large providers of internet-based advertisements should be included in the law that prevents radio and TV broadcasters from censoring political ads. This is common sense legislation, intended to keep up with advancing technology.

    2. Gabbard doesn’t have a 1st amendment claim. She may have a FEC violation claim however. If Google is selectively censoring and eliminating the ads of selected political candidate, that would be of clear value.

  11. Hm. I replied on this thread earlier in the evening, but the post seems to have vanished. Sic transit gloria mundi.

  12. EV, is there no way to apply the public accommodation cases to google and twitter ?? In a high tech world couldn’t it be argued that twitter provides a public accommodation to members of the public thirsty and in need of quenching their hunger for free speech?

    1. 1. Federal public accommodation laws (such as Title II of the Civil Rights Act) only ban discrimination based on race and a few other categories; they don’t ban political discrimination. They also apply to only a limited category of businesses, which probably don’t include online platforms, see Noal v. AOL Time Warner, Inc. (E.D. Va. 2003).

      2. State and local laws are broader, but very few of them cover political affiliation discrimination; and even those, I think, can’t apply — because of the dormant Commerce Clause — to inherently interstate communications media such as platforms.

      3. This doesn’t resolve the question whether Congress may and should restrict political discrimination by service providers; but no existing federal law actually imposes such a restriction.

  13. The idea that the First Amendment should not apply to entities with excessive market power is problematic.

    Maybe we should call it the state in-action doctrine. If the government does not enforce anti-trust against entities like, say YouTube, and those entities massively restrict the free market of ideas, has the government not, in effect, created an environment where people are no longer free to speak their mind?

    If some people are no longer able to communicate their ideas, as a practical matter, does the First Amendment even matter anymore???

    I take issue with the theorists. The theorists in the past said, it was fine for government to enforce racially restrictive covenants. Those covenants, which ran with the land, were “private action” and not “state action” although they were arrangements that could be enforced in court.

    Maybe the solution is for the government to use the anti-trust laws more aggressively. But, whatever the case, I do think that censorship of speech by large companies with massive market power (whether they are technically monopolies or not) is a major problem.

    1. has the government not, in effect, created an environment

      No. HTH.

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