Prof. Nadine Strossen (Former ACLU President) on "Threat of Big Tech and Big Gov Collusion Against the First Amendment"

A substantial interview by Sam Husseini on Substack; an excerpt, quoting Strossen:

[E]ven private sector actors are directly bound by constitutional norms, including the First Amendment free speech guarantee, if you can show that there is in the legal term to describe this is called entanglement, sufficient entanglement between the government officials and the nominally private sector actors, that if they are essentially conspiring with the government doing the government's bidding, the government can't do an end run around his own constitutional obligations that way….

I was really shocked at how cavalier and how dismissive the so-called mainstream media was in sneering at Trump's lawsuit, because it really has to be taken seriously….

The whole thing is much worth reading. For more from Genevieve Lakier, see here; for a quick summary of some of the leading caselaw on the subject, see this post of mine.

Comments

[Ed Grinberg]

I was really shocked at how cavalier and how dismissive the so-called mainstream media was in sneering at Trump's lawsuit, because it really has to be taken seriously...

Their thinking goes something like this: "Well, you know, it's just Trump. And those who support Trump. In other words, deplorables. So what if their speech is squelched? There'll be a little less hate in the world!"

Would the so-called mainstream media stand up for the "deplorables" if tomorrow Biden's Justice Department starts throwing people in prison for saying "extremist" things? I highly doubt it.

[Josh R]

I disagree. The media was dismissive because Trump is the boy who cried wolf.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Let's see .... Obama promised to close Gitmo first thing. Got rebuffed, never mentioned it again. Trump promised to build his border wall, and kept trying his whole term.

Which one was reliable?

[Josh R]

Trump reliably will bitch and moan about anyone who criticizes him.

[Cyto]

Remember when Trump complained that his "wires were being tapped"? LOL. That was before he even took office.

And remember when Trump called the Mueller investigation a " witch hunt"? LOL.

Remember.. In the spring of 2020 when Trump claimed a vaccine would be ready by the end of the year?? And then he doubled down and said it would be ready by November at the end of the summer?!? LOL.

[Josh R]

Your first two instances are Trump crying wolf when someone criticizes him. The third instance is not relevant because it is not in response to a criticism.

[Brett Bellmore]

His point is, it's not 'crying wolf' if there's a wolf present.

Trump WAS being wiretapped.

The Mueller investigation WAS premised on a known fraudulent document, and was thus a witch hunt.

And Trump was attacked for claiming a vaccine would be available by the end of the year.

[David Nieporent]

Trump WAS being wiretapped.

This is true, for a definition of "wiretapped" that doesn't mean "wiretapped."

The Mueller investigation WAS premised on a known fraudulent document, and was thus a witch hunt.

This is true, for a definition of "premised on" that doesn't mean "premised on" and for a definition of "known fraudulent" that doesn't mean "known fraudulent."

And Trump was attacked for claiming a vaccine would be available by the end of the year.

Well, criticized, not "attacked," but this is true. Of course, it comes on the heels of a series of insane statements by Trump, from covid disappearing in short order to reopening by Easter (2020!)

[DavidWH]

At the end of The Boy Who Cried Wolf, the wolf really does come, and it eats the sheep, and the media, and the Democrats.

[Dr. Ed 2]

No, I've met her and she isn't stupid.

Her point is that the media was dismissing a lawsuit that has a great deal of legal significance -- regardless of who filed it, the legal issue is quite significant.

IANAA and hence couldn't articulate it as she did, but I've long felt that something such as the "entanglement" she describes had to exist. After all, the criminal version of it is when one becomes "an agent of the police" and the cops can't get a free pass by asking a non cop to do something for them....

[Brett Bellmore]

If it didn't have a great deal of legal significance, they wouldn't need to dismiss it, it would be guaranteed to go down in flames. They're dismissing it to try to MAKE it go down in flames. To signal that anybody who doesn't want to be ruined better have nothing to do with it.

[David Nieporent]

Yes, mockery proves not that you've done something mockable, but that you're a very serious person who everyone is afraid of. In looney tune land.

[Brett Bellmore]

It can mean either, depending on circumstances.

[apedad]

"So-called mainstream media"

Yeah, I have better things to do that read about someone's opinion about this so-called mainstream media.

[apedad]

And it's not the so-called mainstream media that is dismissive.

“I think the lawsuit has almost no chance of success,” Vanderbilt University law professor Brian Fitzpatrick told CNBC, given that the companies are privately controlled and are not beholden to the same speech laws that public platforms are. “I think this is just a public relations lawsuit, and I’ll be honest with you, I wouldn’t be surprised if it ends with sanctions against the lawyers for filing a frivolous lawsuit,” Fitzpatrick concluded.

Columbia University’s Jameel Jaffer asked, ”In what constitution universe can it be the case that Trump wasn't a state actor when he blocked critics from his social media accounts but the social media companies were state actors when they blocked him?”

Representative Adam Kinzinger, one of the few Republicans willing to stand up to Trump, brushed off the former president’s threats in a tweet: “Just a sad, little man.”

From a legal perspective, this lawsuit is likely to go nowhere,” Evan Greer, the director of Fight for the Future, said in a statement. “Moreover, its disingenuous attack on Section 230 reveals a laughable misunderstanding. Without 230, platforms would likely have removed controversial figures like Trump long ago.”

[Hank Ferrous]

You will never past your in-biases and amydylaic reactions, I see.

[Hank Ferrous]

Shorted you a 'g'...

[Rev. Arthur L. Kirkland]

I expect the same results encountered by Trump Election Litigation: Elite Strike Force. I have yet to observe any persuasive argument to the contrary.

I see a bunch of people squandering their ostensible principles to claim that 'the government must do something about a private company being mean to the then-President of the United States, and -- no, really, we mean this -- denying him access to the audience that is the American people, by declining to spread and be associated with bigoted lies.'

Sometimes, the disaffected and desperate can't help but flail.

[Michael D]

That all goes out the door if the companies were engaged in the bidding of the government in any manner. That is what the professor is saying.

[Longtobefree]

How can someone possibly consider the President directing who to cancel "entanglement"?
Just a gentle nudge - - - - - -

[CJColucci]

The point, I think. There can, in theory, be a lawsuit based on the idea that the private platforms were acting at the direction, under the coercion, or otherwise unduly influenced by "the government." But who was "the government" when President Trump was blocked on social media? Some FCC bureaucrat?

[Brett Bellmore]

I would assume the theory is that a threat from a candidate who has a 50% chance of winning, constitutes 50% of a threat from an office holder, or something like that. Not that Pelosi et all were not already in office at the time.

The issue here, is that we don't have conventional state run media, that dance to the tune of whoever is in power. We have a media that dance to the tune of the same party, in and out of power. When in power, they issue threats and promises backed by that power. When out of power, the threats and promises are backed by the likelihood they'll end up back in power again.

Do they count as government threats in both case?

[CJColucci]

We have a media that dance to the tune of the same party, in and out of power.

Yeah, but their candidate didn't win this time.

[Brett Bellmore]

Takes a special sort of stupid to think the US media are in the tank for Republicans.

[CJColucci]

No, just wide acquaintance with local papers and TV news, talk radio, Fox, OAN, Newsmax, WSJ, Sinclair, ........................

[Hank Ferrous]

Prof V, thanks for this. Strossen is a deliberate speaker and thinker, and I have found her to be above the fray of daily bickering, pandering, and abusiveness, even when I strongly disagree with her. Would that there were more like her.

[Brett Bellmore]

She's not totally lost, but she sure lost ME when she declared that the ACLU was entitled to say what was and wasn't a "civil liberty", and never mind what happened to actually be in the Bill of Rights.

That was when they cut themselves loose from the actual Constitution, and much that has followed was a consequence of that.

[CJColucci]

We need more Third Amendment lawyers.

[Cal Cetín]

This is the opposite of the main Reason site.

There, the comments are frequently of greater interest than the articles.

Here, that's rarely true - the articles themselves are often good. The comments could generally be imitated by an outrage-generating computer program.

[Rev. Arthur L. Kirkland]

Most of the articles are just longer versions of Instapundit-level partisan polemics, especially since Prof. Kerr found new playmates.

[Ed Grinberg]

There's plenty of outrage in the comments on the main Reason site, often on the same topics. The only difference is that there some of the outrage is also directed at the author of the post. (Commenters often accuse the author of being dishonest or deliberately obtuse.)

[Krayt]

I'm thinking 12,000 year sentences for every Democrat who stood on that stage and brayed how to change or wipe section 230, or otherwise hurt the tech companies, unless they censored harrassment.

Which was done, then applied to their political opponents.

Per US citizen. So on the order of 315,000,000 x 12,000 years.

[Krayt]

As a general rule, the US disallows the building of tools of tyranny, so they can't be abused to begin with.

This asinine "workaround" of the First Amendment needs to have its back broken. This has nothing to do with Trump. These are old people, and we need to scare the holy hell out of future politicians who not only may want to try it agian, but build on it.

[Brett Bellmore]

As a general rule, the US used to disallow building the tools of tyranny. We've been building up the pieces of a police state for years now, thanks to the insane response to 9-11.

The no-fly list, for instance. That abomination shouldn't have survived a moment's judicial review.

[Voize of Reazon]

As apedad noted, the "mainstream media" relayed skepticism from experts they consulted, mostly law professors. The media wasn't just the usual left-leaning suspects either, the same negative evaluations featured in the Fox News and even Breitbart reporting.
Later in the same interview Strossen says

And given the strong presumption in favor of free speech, and the strong presumption in favor of free enterprise, both of which I support, I think there's very much the burden of proof on those who are trying to, to show that this is in fact, state action.

So yes, there is one possibly viable claim but it is very much an uphill climb and would require finding a smoking gun in discovery. The other arguments, e.g. that Facebook's benefiting from §230 immunity makes it a state actor, are hopeless.

[Rev. Arthur L. Kirkland]

Prof. Volokh refrained from highlighting that part.

[Darwinnie]

Social media platforms are a new animal. The framers never could have contemplated their reach with algorithms to affect what millions of people see, like, and share with each other. No doubt there’s a huge risk that government actors will use it to push disinformation and propaganda (like Russia already does). But conservatives seem to think the answer is forcing platforms to leave their comments alone and stop using algorithms. That’s far too simplistic and will never work in real life. I don’t know how to force platforms and governments to play by a fair set of rules, but the very idea that it could be done seems ludicrous. I do know that some
common law case ruling to impose common carrier status is hopelessly useless; they’re too
big and their functions are far more powerful in terms of spreading speech to think that will have any real benefit without addressing all the other issues. Are we going to limit tracking cookies next? Limit targeted-ad sales? Force platforms to verify every user account? Force them to drop algorithms and limit their functionality? Personally, I think a good start is still campaign-financing reform (yes, revisit Citizens United) and remove politicians’ defamation and fraud immunities. Then figure out how to legislate actionable liabilities for platforms who violate certain viewpoint neutral standards. I just can’t think of a way to do that.

[Darwinnie]

I should add that antitrust is also a better focus right now than common carrier status and lawsuits like Trump’s. If it doesn’t apply, revisit that legislation.

[Michael 11]

if you can show that there is in the legal term to describe this is called entanglement, sufficient entanglement between the government officials and the nominally private sector actors

I strongly suspect that this should have been transcribed more like "if you can show that there is -- and the legal term to describe this is called 'entanglement' -- sufficient entanglement..."

Transcribing ungrammatical gibberish where the interviewee has said something perfectly sensible seems gratuitously hostile.

[Brett Bellmore]

Often it's just gratuitously algorithmic.

[Stephen Lathrop]

Assume for the sake of argument there is some kind of government coercion on media, to get them to say what government wants. How does that justify a policy attack on the media? Why isn't the government coercion the target?

[David Nieporent]

The issue here isn't getting the media to say what the government wants; it's getting them to censor people the government wants censored. But despite that error, I agree with the thrust of the question as I understand it. There are three possibilities;

1. They want to censor the person, and do it without government prompting.
2. They want to censor the person, and do it after the government prompts it.
3. They don't want to censor the person, but they do so because the government coerces them.

In the first instance, there's no state action and no constitutional issue; they have every legal right to make that decision.

In the second instance, it's hard to see how doing something they wanted to do and had every right to do can somehow become unconstitutional just because the government also wants them to do it.

In the third instance, there's a constitutional violation, sure. Coerced government censorship. And the government coercer ought to be liable. But the media is one of the victims of the government coercion, so it's hard to see why they would become liable.

[Cyto]

At least the Biden administration hasn't linked antitrust enforcement actions to blocking "misinformation"....