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.

Comments

[Stephen Lathrop]

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.

A peculiar argument indeed. It fails to ask why the construction firm, under no obligation or coercion, would not just tell the FBI to get lost. Which is exactly what private media are free to do if government pressures them to suppress speech, or to utter speech.

Private media are not only free to do that, they are free to write stories about doing it, publish the stories, laugh at the government, and encourage disrespect among the public for any government so injudicious, and so disrespectful of press freedom.

Anyone can do that. I have done it. It works fine. Stop whining.

[bevis the lumberjack]

Because the FBI is a powerful entity that has been known to punish people that displease it. The coercion is in the power disparity.

When the big guy with face tattoos corners you in an alley and politely asks for your wallet why do you give it to him?

Lathrop, your side is the one that’s always whining about abuses of power disparity. Turns out you’re a big fan of that as long as it’s applied to people you hate. When DeSantis gets elected and applies the FBI and homeland security to your speech you’ll be yowling like a hungry 2 year-old.

You have no principles whatsoever.

[Stephen Lathrop]

Bevis, I don't take advice about government threats from folks who hide behind pseudonyms. If you won't even write under your own name, I already know you are too frightened to test how far your freedoms extend.

[Jmaie]

That is a particularly silly argument, even in these days.

I can't be bother to sign up for a new email address and username. Hopefully this won't nullify my point of view.

[Krayt]

A peculiar argument indeed. It fails to ask why the construction firm, under no obligation or coercion, would not just tell the FBI to get lost. Which is exactly what private media are free to do if government pressures them to suppress speech, or to utter speech

When Zuckerberg refused to censor politicians the way Congress wanted, meaning harrassing speech, as defined by those members, they summoned him to explain, seeing as “because it’s important The People see exactly the thoughts their politicians are thinking when voting, or democracy has no meaning” wasn’t good enough for them.

“Stand tall before Congress” sure as hell seems coercive to me, when a flick of their finger can cost your company billions, as with wrecking section 230.

You’re…looking at the wrong end of the transaction. Rather than squeak, “Put your billions where your mouth is and tell ’em to go fly a kite!”, ask why the hell they think they can do this and not go to jail

[DavidWH]

Tell that to Joseph Nacchio.

[Dr. Ed 2]

“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.”

That’s unconstitutional? Interesting…

How about if a town tells a private antique dealer to steal all the antiques in your house?

[bevis the lumberjack]

Whatever. I don’t take advice about freedom from supporters of censorship, because you don’t believe in freedom anyway.

[Rev. Arthur L. Kirkland]

Do you support the Volokh Conspiracy's censorship? Or are you just a bigoted rube who claims the "often libertarians" around here are something other than standard right-wingers?

[Sarcastr0]

The new symbiotic relationship of government and private power—which used to be called "fascism" by political theorists

Yeah, nah.

[Krayt]

Fascism is nominal private ownership of industry with strong government "partnership", and strong nationalist rhetoric.

Well, two of three prongs, the important ones, isn't bad.

[Sarcastr0]

Fascism is about rhetoric? What a weak definition if you look at history!

This is like when the right tried to argue Obamacare was fascism. It’s rhetoric so self evidently overblown as to be ridiculous. Of course you are the one who thinks government exists to be corrupt, so you are already off the deep end.

[Magister]

This presupposes something that is not happening; all of the examples of things the government has had censored, have not been censored.

Twitter in particular seems eager to amplify misinformation, and getting censored ever so slightly (or not at all) by any social media platform will probably get you plenty of coverage from right-wing outlets.

I can't read the whole thing, because paywall. But the bulldozing analogy is stupid; a social media platform removing something that violates its terms of service without any request from government is clearly legal, and a construction firm bulldozing your house without your permission and without any request from government is clearly illegal.

[bevis the lumberjack]

Really? The NY Post actually didn’t get their account shut down as was widely reported? People who suggested adaptations to the shutdowns weren’t silenced?

What planet do you live on? It sure ain’t this one.

[Magister]

Shut down by whom? And why? Who in the government wanted that done?

[David Nieporent]

No, the NYP did not get its account shut down. No, nobody was "silenced."

[Toranth]

Just to be clear, you are claiming that the New York Post's Twitter account, which it used to publish links to their Biden laptop articles, was still capable of being used to publish other posts on Twitter's microblogging service during the time that the Laptop article Tweet was not able to be seen or referenced?

By the way, here's a direct public quote from Twitter to the NYPost on the topic:

You will still need to delete the Tweets to regain access to your account.

"Regain access to your account", hmm... Why would the Post need to "regain" access to their account?

[mydisplayname]

It is significant that those on the left -- including the Washington Post -- are upset by the very notion that suppression of what they consider to be wrong-think is properly called censorship.

It is also interesting that an overly-close, symbiotic relationship between business and government has in no location and at no time resulted in a long-term positive outcome: government is an enemy of liberty and must be considered an enemy of the good, business and citizens alike. We quickly forget the words of Eisenhower (and, surprisingly, those of Putin, Hitler, and Stalin, who also commented on the topic for differing reasons).

[Stephen Lathrop]

mydisplayname, maybe the WaPo is just perplexed by fools who assert a free speech violation occurs if the WaPo edits articles before they publish them.

[bevis the lumberjack]

You’re ignoring the part where to be equivalent to this the edits to WaPo articles is being done at the behest of the government. Are you really this ignorant or are you simply being obtuse?

[Stephen Lathrop]

bevis, you suppose—who knows why—that the 1A entitles you to a publishing power more extensive than anyone on earth has ever enjoyed anywhere at any time. What you demand no one can supply, because the power to do it does not exist, and never has existed.

The means necessary to meet your demands, and the outcomes you imagine, are self-contradictory. If means powerful enough to fulfill your dreams existed, they would incapacitate the practical publishing capacity required to accomplish your goals.

That you do not understand that is not really a knock on you. You are in plentiful company. Practical insight into what it takes to accomplish publishing as an ongoing, self-supporting activity is not commonplace. So of course you join with all the others who demand that government, or someone, supply you with a personal publishing experience optimized in every way, at no cost to you.

To get more-useful insight, try to imagine all the activities you would have to master, and all the feats you would have to accomplish, to become the owner of a thriving internet publishing business. And then re-consider those activities and accomplishments, with an eye to identifying constraints beyond your control, and dependencies on others, that you would have to maneuver around or overcome. You will need technical equipment. You will need a source of revenue. You will need a means to manage the revenue source, and interface with it. Everyone you deal with will regard your efforts and results critically, with an eye to their own preferences for public expression, and you will need power to satisfy all of them all at once, or at least power to pacify most of them most of the time.

Among those who take exception to what you do will be some who want government to take a hand in managing your enterprise, or to coerce it, or to co-opt it. You will require a private power to face down government. Almost no one commands such personal power, so it must be found somewhere else. Where do you suppose that can come from? If you attempt to find such a power in politics, on what basis do you suppose doing that will advance your interests, instead of goading political opponents to act against you.

There are practical answers to questions of those sorts, and to a great many other questions I have not mentioned. I have tried without success to explain some of those practicalities to commenters on this blog. The subject has proved unwieldy, far too extensive, and distasteful to ideologues who want simpler answers.

Those latter comprise the class I think of as internet utopians. They know what they want; they want no part of information to explain why they can’t have everything they want, including the self-contradictory and paradoxical parts. Most of them do not even suspect there is anything more complicated to consider than what they experience while they peer across their keyboards. Even that experience is managed out of sight, in ways most of them fail to imagine, let alone understand.

You would be wise to take a more reflective approach.

[bevis the lumberjack]

Lathrop, this is my last response because you aren’t comprehending the problem. I don’t believe that I have the right to publish on anybody’s platform and haven’t said that I do.

The point that you just can’t seem to comprehend, or are intentionally dodging, is the government pressuring the big platforms to take stuff down. The spin is that they’re fighting “misinformation” but the truth is they’re fighting things they don’t agree with or posts that criticize those in power.

I don’t know why you’re not getting that but I’m tired of posting the same thing repeatedly and having you mischaracterize it. You’re responding to something that I’m not saying.

[Stephen Lathrop]

bevis, sorry if I misunderstood you. I see that you were making a narrower point than I supposed. Perhaps you are not a utopian after all.

However, to have relevance, your fear of government coercion must await actual coercion. I would join you wholeheartedly if government said ban this viewpoint or go to jail, or pay a fine, however trivial. But the pressure government has been exerting is not that kind of pressure. It isn't really even pressure at all, except insofar as publishers who experience it fear it might lead later to actual coercion of the first sort.

That kind of fear, to the extent it exists, is a fault of the publishers, not of government's. Publishers really do remain at liberty in the U.S. to defy government, to ridicule it, and to urge the citizenry to alter it.

But otherwise, distasteful as it is for me to concede, publishers may judge that cooperation with government preferences is the wisest choice to make, either for practical reasons, or for other reasons. If so, press freedom must protect such decisions as impartially as it protects defiance of government. The press remains at liberty not only to defy government, but also to cooperate with it. Quite often the latter course will prove more profitable, and plenty of folks in the publishing business are in it mostly for the money. That is part of the freedom.

To say these things is not to say that I see nothing wrong with regard to government and internet media as they now are. I have asserted literally for years on this platform that disastrous public polices to promote internet giantism would predictably create public backlash, and lead to demands for government to intervene directly in publishing practices. I cautioned against likely demands for government to censor media. I got back mostly ridicule and invective. But here we are.

Those demands for direct government intervention in publishing are a bad thing, not a good thing. A media regime which benefits American constitutionalism will not be one controlled in detail by government. It will be one under the control of a myriad of private publishers, each acting according to its own lights, and competing mutually to afford access to every viable point of view at the intersection of the marketplace of commerce, and of the marketplace of ideas.

In short, it will be a regime which closely resembles the one which prevailed prior to internet giantism. But with the difference that economic publishing efficiencies afforded by internet technology will be channeled by public policy to encourage yet more diversity and profusion among smaller private publishers, instead of to create giantism and exclusivity, as now happens.

An initial step to accomplish that must be repeal of Section 230, the legislative blunder which enabled the giantism in the first place. (How that was enabled I will not go into here, because to do it requires too lengthy a discussion.) Suffice to say, that if Section 230 is to be repealed, there must be a political consensus on policy somehow to solve the, "gatekeeper," problem, which so many internet utopians demand as a first priority.

The way to do that is not to outlaw gatekeeping. It is to make it less efficient, by so drastically lowering barriers to entry for internet publishers that almost everyone can find a publisher inclined to permit whatever non-defamatory views any person might wish to publish.

Some utopian dreams will have to go by the boards. To repeal Section 230 would bring back private editing prior to publication, and thus frustrate the pro-libel lobby. I see that as a good thing. Others may differ. Also, because of the sheer size of today's internet platforms, an illusion has been created that everyone with a keyboard can tap into gigantic public influence. That is not true. Each voice remains but one among tens of millions. If anything, giantism has had an effect to diminish outsized influence for many erstwhile media stars, who find that if they slip from privileged perches, they quickly become just another voice in the crowd.

Making the platforms smaller but far more numerous will not change that, just force a more realistic understanding of it. What it will do is restore a more useful distribution of advertising revenue, to once again support local media, and once again empower widespread news gathering. Those are good things which the public life of the nation has sorely missed. Best of all, public pressure to make government manage the press will evaporate. The free market will be back in control of the free press.

[Sarcastr0]

“ government is an enemy of liberty and must be considered an enemy of the good, business and citizens alike.”

Civil Rights? Scientific research? Postal Service?

[David Nieporent]

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)

No; that's a terrible analogy. Private construction firms don't have any right to bulldoze your house, regardless of the involvement of government. But social media companies have a 1A right to decide who can speak on their platforms and what can be said.

[bevis the lumberjack]

But the point is that they’re not freely deciding.

I don’t know what to say to y’all. If you can’t comprehend that allowing the people with government-backed power to decide what speech survives as more dangerous than letting some misinformation get out there I don’t know what to say.

And don’t even start ranting about how much the amount of misinformation has increased. That’s bullshit promoted by our political class because it’s something else they can save us from. The truth is that our politicians (and therefore our governments) have always lied to us. It’s commonly known and accepted. So our saviors from misinformation have always been the most consistent purveyors of misinformation among us.

They could save us from misinformation by simply ceasing to lie, but they won’t.

[Sarcastr0]

First, as DMN and others have explained to you, what you describe is not happening. Even in the hypo it’s patriotic cooperation, not a lack of choice.

Second, between defamation and commercial speech regs, government has been regulating misinformation since the Founding.

[vaadu]

Say the FBI wants to talk to PartyA but can’t do it without PartyA’s lawyer present, so they get PartyB(jailhouse snitch) wired up and have him ask the questions. Yeah, not legal.

The government should have to get a warrant for the censorship and the person being censored should be able to fight it in court before the warrant is issued.

[Skeptic]

Randy Barnett is always worth reading. And he's one of the writers I trust so much, I immediately have to take a very long pause and think if he argues contrary to one of my positions.

[Stephen Lathrop]

Government threats to regulate published expression might be worth considering, given an information ecosystem comprised of only a few too-influential giants. Change that situation. Use policy to re-order the information ecosystem to give it a vast profusion of diverse private publishers, and that threat of government control would recede. It is past time to replace the few giantistic internet platforms—which each creates a convenient nexus for control—with tens of thousands of much smaller and more diverse online publishers—which would be a practical impossibility to control.

[arpiniant1]

pretty non textualist stuff ‘speech’ You do not have the right to stand in your neighbors house and yell You do not have the right to borrow my megaphone[against my will] and scream whatever you like You are free to stand on your own soapbox and rant however you wish, but other peoples soapboxes other peoples rules, and they may or may not listen to the gov’ts opinions on the usefulness of your rantings

[Toranth]

So if the government asks your landlord to go through your apartment looking for stuff, you're fine with it? Maybe plant a camera or two while they're at it - private company; they can do what they want, those patriotic little scamps.
If the government asks your phone company to record your calls for them, that's fine? No warrant, but it's a private company; they can do what they want, right?