Ridiculous: Yale Law Prof Argues That Because Some In Congress Want More Moderation, That Makes Twitter A State Actor

Free Speech

from the did-he-teach-hawley? dept

I’m beginning to see where Josh Hawley got his totally nutty ideas about the 1st Amendment. The Wall Street Journal has an utterly insane piece by Yale Law professor Jed Rubenfeld — currently suspended due to sexual harassment claims, and who was infamously quoted telling prospective law clerks for then Judge Brett Kavanaugh, that Kavanugh “hires women with a certain look” — and a… um… biotech executive named Vivek Ramaswami who is mad about “woke” companies, insisting (wrongly) that the big internet companies are actually part of the US government and therefore have to abide by the 1st Amendment in their content moderation practices.

Honestly, the level of thinking here is on par with your typical Breitbart commenter, not a well known (if slightly disgraced) Yale Law professor.

Conventional wisdom holds that technology companies are free to regulate content because they are private, and the First Amendment protects only against government censorship. That view is wrong: Google, Facebook and Twitter should be treated as state actors under existing legal doctrines. 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.

It’s not just “conventional wisdom.” It’s lots and lots of legal precedent and a general understanding of 1st Amendment doctrine going back ages. State action doctrine is not some brand new concept. I mean, there have been some very thoughtful academic pieces on the idea that state action doctrine should be changed to try to make it apply to social media companies. But those are academic papers suggesting how they think the law should change. They’re not saying it fits under current doctrine.

Because it doesn’t.

It is ?axiomatic,? the Supreme Court held in Norwood v. Harrison (1973), that the government ?may not induce, encourage or promote private persons to accomplish what it is constitutionally forbidden to accomplish.? That?s what Congress did by enacting Section 230 of the 1996 Communications Decency Act, which not only permits tech companies to censor constitutionally protected speech but immunizes them from liability if they do so.

So… the first sentence is correct. It’s also why we’ve repeatedly raised concerns about lawmakers demanding specific content moderation options. But the second sentence is just laughably wrong. Nothing in Section 230 of the Communications Act induces, encourages, or promotes private persons to accomplish what is constitutionally forbidden to accomplish. The 1st Amendment protects a company’s right not to associate with those it does not wish to associate with. It also protects against being compelled to host speech it disagrees with. Those are both constitutionally protected things. Section 230 does not change that.

The piece does highlight some members of Congress stupidly (and I believe, unconstitutionally) pressuring Facebook and Google to restrict “harmful content.” And I agree that’s wrong. But it’s a massive leap towards insanity to try to spin that as saying that those vague threats from elected officials magically turns the websites themselves into arms of the state, subject to 1st Amendment restrictions placed on government. I mean, if it did, you’ve just handed Congress a magic tool to effectively nationalize any company: just unconstitutionally order them to do something, and voila, they’re now state actors.

That’s insane. That would only encourage Congress to make unconstitutional demands of companies to have those companies declared state actors. It’s bonkers. I feel sorry for Yale Law students who deserve better.

Such threats have worked. In September 2019, the day before another congressional grilling was to begin, Facebook announced important new restrictions on ?hate speech.? It?s no accident that big tech took its most aggressive steps against Mr. Trump just as Democrats were poised to take control of the White House and Senate. Prominent Democrats promptly voiced approval of big tech?s actions, which Connecticut Sen. Richard Blumenthal expressly attributed to ?a shift in the political winds.?

So… the argument here is that you want more hate speech online, and you’re mad that Facebook is restricting it? Holy shit. What is wrong with you?

And, um, note what is left out in this claim about exactly when these companies “took its most aggressive steps against Mr. Trump.” It’s not just about the fact that Democrats were poised to take control of the Executive and Legislative branches, but because Trump had just inspired a fucking riot at the Capitol building in an effort to overturn a free and fair election and reports were coming out that he was happy about what happened, worrying many that he would encourage yet more attacks in the days leading up to the Biden inauguration.

Seems like kind of an important thing to include, no? There’s no indication that the Trump bans were about politics at all. There is every indication they were about preventing an armed insurrection and possible civil war. But Rubenfeld and Ramaswamy literally ignore all of that and insist that it’s some sort of ideological or political issue… and stretch that to argue that these companies are arms of the state. A state that is still controlled by Donald Trump.

I mean, this is embarrassing.

For more than half a century courts have held that governmental threats can turn private conduct into state action. In Bantam Books v. Sullivan (1963), the Supreme Court found a First Amendment violation when a private bookseller stopped selling works state officials deemed ?objectionable? after they sent him a veiled threat of prosecution. In Carlin Communications v. Mountain States Telephone & Telegraph Co. (1987), the Ninth U.S. Circuit Court of Appeals found state action when an official induced a telephone company to stop carrying offensive content, again by threat of prosecution.

As the Second Circuit held in Hammerhead Enterprises v. Brezenoff (1983), the test is whether ?comments of a government official can reasonably be interpreted as intimating that some form of punishment or adverse regulatory action will follow the failure to accede to the official?s request.? Mr. Richmond?s comments, along with many others, easily meet that test. Notably, the Ninth Circuit held it didn?t matter whether the threats were the ?real motivating force? behind the private party?s conduct; state action exists even if he ?would have acted as he did independently.?

Again, this is getting the facts all mixed up. All of these cases are important ones for why the government cannot force companies into moderating the way it sees best. It’s why nearly all proposals to modify Section 230 are unconstitutional. But… those all involved cases where officials made specific demands that a company then followed through on — and then the actions are really seen as government actions. But, here, there was no government official demanding that Twitter or Facebook block Trump. Trump is the President.

I agree that there might be an argument that elected officials who make specific moderation demands could be violating 1st Amendment rights of speakers (and of the companies themselves!), but to argue that vague statements by elected officials to be better about “taking responsibility” turning all moderation decisions into state action is galaxy-brain nonsense.

The piece does at least note that repealing Section 230 is a bad idea, but then goes off the rails immediately:

Republicans including Mr. Trump have called for Section 230?s repeal. That misses the point: The damage has already been done. Facebook and Twitter probably wouldn?t have become behemoths without Section 230, but repealing the statute now may simply further empower those companies, which are better able than smaller competitors to withstand liability. The right answer is for courts to recognize what lawmakers did: suck the air out of the Constitution by dispatching big tech to do what they can?t. Now it?s up to judges to fill the vacuum, with sound legal precedents in hand.

Uh, sure. Let’s have judges produce precedent — a la Backpage v. Dart — that says that elected officials cannot threaten or try to force companies to do something unconstitutional. But, that should be on the public officials, not on companies, and certainly not when these actions were not taken at the behest of elected officials, but in order to try to stop an armed insurrection (which, again, the authors never bother to mention other than an oblique reference towards the end of the piece about “the breach of the Capitol”).

The article also says that these companies now might try to block Joe Biden because they don’t like his support of antitrust action against them. And…um… does anyone believe that? That’s insane (beyond the fact that there are no antitrust suits against Twitter, which isn’t even that big in the first place). But even if they did do that, it would immediately backfire. I mean, it would not just be ridiculous, laughable, and a total PR disaster, but it would play right into the hands of those suing the companies for antitrust.

I’m not sure how difficult it is for Rubenfeld and Ramawamy to get this through their skulls, but the bans last week were not because of a policy disagreement with the President. No one’s blocking anyone for their “conservative viewpoints.” It was because he had just inspired a violent mob to attack the Capitol while Congress was in session and trying to officially count the Electoral College votes and five people died. That violates every possible terms of service agreement ever written.

There?s more at stake than free speech. Suppression of dissent breeds terror. The answer to last week?s horror should be to open more channels of dialogue, not to close them off. If disaffected Americans no longer have an outlet to be heard, the siege of Capitol Hill will look like a friendly parley compared with what?s to come.

There are tons of outlets for “disaffected Americans.” They have many outlets to be heard. What they don’t have is a right to demand that any company host their speech when they are spreading blatant disinformation and violent rhetoric, including calling on people to literally murder public officials.

Ordinary Americans understand the First Amendment better than the elites do. Users who say Facebook, Twitter and Google are violating their constitutional rights are right. Aggrieved plaintiffs should sue these companies now to protect the voice of every American?and our constitutional democracy.

If they do, they will lose, and they will lose badly. It will be an embarrassing waste of money. One hopes that anyone thinking of filing such a lawsuit discusses it with a lawyer trained by actual legal experts, and not taught by Jed Rubenfeld.

Filed Under: 1st amendment, congress, content moderation, jed rubenfeld, state action doctrine, state actor, vivek ramaswami
Companies: facebook, google, twitter