When Government Uses Private Companies to Regulate Speech

Federal courts must up their game to handle the new symbiosis of government power and private businesses.

Columbia Law School Professor Philip Hamburger has an important essay this weekend on the Wall Street Journal opinion page: How the Government Justifies Its Social-Media Censorship. Hamburger heads the New Civil Liberties Alliance, which is challenging the federal government's use of privately-owned social media platforms to suppress the speech of Americans. [Disclosure: I am on the NCLA Board of Advisors.]

In Missouri v. Biden, NCLA is challenging the constitutionality of pressure that officials at the White House, the Federal Bureau of Investigation, the Department of Homeland Security, the Central Intelligence Agency and other agencies have brought to bear on tech companies to suppress so-called "misinformation." Recent examples include the suppression of speech on private platforms about the Hunter Biden laptop story, the lab-leak theory of COVID-19's origins, the efficacy of mask mandates and COVID-19 lockdowns, and election integrity and the security of voting by mail.

In his op-ed, Hamburger identifies five Supreme Court doctrines that, when combined, have facilitated the modern regime of stealthy government censorship of speech on these and other topics of which the government disapproves:

1. An expansive understanding of Congress's power to regulate commerce;
2. An overemphasis on coercion;
3. Misunderstanding privatized censorship;
4. The "government speech" doctrine; and
5. Qualified immunity.

To appreciate how these five doctrines perniciously interact, you need to read the whole op-ed. But I will focus here on #3: misunderstanding "privatized" censorship.

As Hamburger notes, "[w]hen government uses private organizations such as Facebook and Twitter to censor speech, it's widely assumed that the silenced speakers are suppressed merely by private actors, not by government." The Supreme Court only recognizes this to be government suppression of speech when the government "has exercised coercive power or has provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the State." (Blum v. Yaretsky (1982))

Hamburger contends that this this standard is too high. Blum and related cases concerned suits against private actors for their speech suppression on the ground that they have become government actors, in which case such a standard might be reasonable. But this same standard, he contends, should not be applied to suits against the government for its actions in getting private parties to suppress speech.

Hamburger contends that, "[b]ecause the First Amendment bars 'abridging' the freedom of speech, any law or government policy that reduces that freedom on the platforms—for example, by obtaining content or viewpoint discrimination—violates the First Amendment."

In such a case, the constitutional issue should be whether "it is government policy [that] is abridging the freedom of speech—meaning it has caused a reduction in the freedom—not whether the private platform has been converted into a government actor." To illustrate this, Hamburger offers this helpful analogy:

If FBI agents politely ask a private construction firm to bulldoze your house, and the firm patriotically cooperates, the FBI will have acted unconstitutionally—even though the private firm is merely private and acted consensually. Similarly, when FBI agents or other officials persistently seek the consensual cooperation of social-media platforms in suppressing disfavored speech, the FBI agents are abridging the freedom of speech. (emphasis added)

So, whether or not these "government threats have turned the platforms into government instruments"—which current doctrine requires be shown—what matters is whether FBI agents and other officials have themselves abridged the freedom of speech.

As Hamburger concludes:

Supreme Court doctrine . .  . dangerously encourages government to think it can use private firms to circumvent the First Amendment—as long as it doesn't turn them into government actors. This is especially worrisome because it seems paradoxical and hazardous to say that private companies can be considered government actors. Many judges are reluctant to reach so perverse a conclusion, thus giving even greater leeway for privatized government censorship.

The new symbiotic relationship of government and private power—which used to be called "fascism" by political theorists—is the constitutional challenge of our age. Federal courts must up their game to meet this challenge lest this comprehensive stifling of freedom of speech by the federal government slip between their doctrinal cracks.

Read the whole thing.