Stop Trying To Make State Action Doctrine Happen
from the non-state-action dept
I’ve spent many years criticizing government officials and politicians of both parties for threatening retaliation against individuals and companies for their speech. But there are some pretty clear lines of what counts as actual 1st Amendment violations in retaliating over speech, and what is just government folks mouthing off and expressing their own opinion. To be clear, I think government officials should mostly shut the fuck up, instead of trying to influence websites on how to moderate, but there’s a pretty big distance between unwise mouthing off and reaching the level where it becomes a state action issue.
The state action doctrine is not just that “government folks got mad, and some private actor took action,” but rather you have to show the government was actually responsible for the action, and not the private actor. Basically, the state needs to have fully compelled the action at issue, and usually that has to have included a very clear threat of government action against the private actor if they don’t take the steps desired.
Unfortunately, a bunch of bad faith actors have been pushing the ridiculous claim that government officials merely stating an opinion on certain content, then magically turns anyone who takes action on that same content into a state actor. This is silly. Two of the leading proponents of this nonsense theory are disgraced Yale Professor Jed Rubenfeld and some biotech exec who appears to be trying to grift off “anti-woke” sentiment, Vivek Ramaswamy.
A year and a half ago, they declared that because some people in Congress were saying that websites should moderate more content, that turned social media into state actors. It was an obviously nonsense claim. Rubenfeld, apparently with more time on his hands than common sense, then tried to use that argument to help anti-vaxxer Robert F. Kennedy Jr. win a case against Facebook. That failed as the court (rightfully) tossed the case and made it clear that just because some people in the government say something, and then a social media site takes action, it doesn’t magically turn the social media companies into state actors.
And, it should be obvious why that’s the right decision. If someone in government merely mused about “this content is problematic” and then as soon as any site took action it became a state actor, effectively any bad faith government official could block the 1st Amendment association and editorial rights of any website. Just get anyone in Congress to express their opinion that “so-and-so shouldn’t be on social media” and then — according to this nonsense theory — that person can never, ever be moderated.
That’s not how any of this works.
Anyway. Rubenfeld and Ramaswamy are back again — again in the pages of the WSJ Opinion section, because that’s the only place that will take them — to argue vindication, and that Twitter has become “a tool of government censorship.” The whole thing is based on bullshit from a bullshit artist.
You may recall that the “pandemic’s wrongest man” sued Twitter over its decision to remove him from the site. Berenson was very, very sure that his case was incredibly strong. He was wrong. The judge tossed out nearly all of it, including every free speech claim, and left just a tiny portion to move forward hinting very strongly that, after discovery, the remaining tiny bit, exploring the possibility of promissory estoppel (i.e., did Twitter somehow “promise” Berenson he wouldn’t be kicked), he was ready to toss the rest.
Of course, discovery is expensive, distracting and time consuming. And Twitter’s lawyers are kinda busy on other matters, so it made sense that the company came to a settlement with Berenson that allowed him back on the site. This caused some people to highlight that Berenson had promised never to settle the case and to expose the deep dark secrets of Twitter’s moderation practices.
The latest is that Berenson revealed some internal Slack chats that he had obtained, showing Twitter employees recounting a meeting they had with White House officials asking why Berenson wasn’t banned from Twitter. Berenson presented this as proof that the White House “demanded Twitter ban me.”
Alex insists he’s now going to sue the White House, and dude, knock yourself out. As we’ve said, the government really should shut the fuck up in telling websites how to moderate, and that includes this. But I think it’s highly, highly unlikely that any court would find this reaching the level of actual 1st Amendment violation — but, hey, if he can set a precedent that government officials should stop trying to pressure companies about their editorial decisions, more power to him.
However, none of this makes Twitter “a state actor.” First, none of the revealed messages indicate actual “demands” or any other kind of threat of retaliation. All it shows is that White House officials asked why Berenson, elite spewer of misinformation, hadn’t violated Twitter’s policies. And asking questions like that is not a violation of anyone’s rights.
Second, as Berenson himself admits, this conversation happened “months before the company” actually did ban him. So, if you’re looking to show that the White House ordered it and Twitter complied, the timeline creates a pretty big problem for that.
Of course, idiots on Twitter have gone nuts over this, taking Berenson’s extremely misleading framing of this, and repeating over and over again that the White House “ordered” him to be blocked. Most of the media has been more circumspect, either not reporting on this non-story at all, or noting “Berenson claims” or (more accurately) “White House asked why…”
But, the Wall Street Journal editorial pages have no standards for accuracy or truth or anything. They’re basically the pure id of Rupert Murdoch’s fever dreams. So when Rubenfeld and Ramaswamy want to argue that this story proves Twitter is a state actor, the WSJ is more than happy to oblige. It’s all nonsense, though.
Facts that Mr. Berenson unearthed through the discovery process confirm that the administration has been secretly asking social-media companies to shut down the accounts of specific prominent critics of administration policy.
Except they weren’t asking them to shut down the accounts. They were asking why the companies didn’t consider Berenson to have violated its terms. Which is a legitimate question.
Last Friday Mr. Berenson published conversations from an internal Twitter Slack channel. Referring to an April 2021 meeting with White House officials, one Twitter employee noted that the meeting overall was “pretty good,” but added that the White House “had one really tough question about why Alex Berenson hasn’t been kicked off from the platform.”
Another employee asked: “Any high level takeaways from the meeting? Anything we should keep an eye out for?”
The first employee responded: “Yes, they really wanted to know about Alex Berenson.” The employee wrote that Andy Slavitt, then a senior White House Covid adviser, “suggested they had seen data viz that had showed he was the epicenter of disinfo that radiated outwards to the persuadable public.” (“Viz” probably stands for “visualization” and “disinfo” for “disinformation.”)
Again, literally all that shows is the White House asking about it. And, as Berenson’s buddy, Tucker Carlson, let’s us know all the time, “what’s wrong with just asking questions?” Again, none of this turns Twitter into a state actor.
Remember that this meeting happened many months before Twitter said Berenson violated its rules.
Private companies taking into account factual information provided by the government that shows users violated company policy does not make you into a state actor. Rubenfeld and Ramaswamy also point to actions taken by Facebook to remove disinfo as more proof — and again, all it shows is proof that the companies have their own policies and sometimes take action on them.
Recent Freedom of Information Act disclosures show that a week later, on July 23, 2021, Nick Clegg—a former U.K. deputy prime minister and now Facebook parent Meta’s president for global affairs—emailed Dr. Murthy to thank him for meeting with Facebook and to report on “the steps we took just this past week” to “further address the ‘disinfo dozen’: we removed 17 additional Pages, Groups, and Instagram accounts tied to the ‘disinfo dozen’ . . . resulting in every member . . . having had at least one such entity removed.” He added that Facebook was “continuing to make 4 other Pages and Profiles, which have not yet met their removal thresholds, more difficult to find on our platform.”
That’s a company taking actions based on its policies. It’s not evidence of state action.
Again, under the rules that Rubenfeld wants, if any government official ever calls out someone for disinformation, he seems to believe no website can ever take action against that person, no matter how frequently or how egregiously they break the rules.
That’s… disconnected from reality. It’s so disconnected from reality, Yale students taught by Rubenfeld should maybe consider demanding a refund.
When the government exploits these legislative inducements to target specific critics for censorship, it has crossed a constitutional Rubicon. Targeting, punishing and silencing dissenters is the paradigmatic First Amendment violation. The Biden administration is using Big Tech as its private censorship arm, and that violates what the Supreme Court, in Norwood v. Harrison (1973), called an “axiomatic” principle: The government “may not induce, encourage or promote private persons to accomplish what it is constitutionally forbidden to accomplish.”
Except… there were no legislative inducements going on here. This is just silly. The government asked “why didn’t these actions violate your policies” and the companies then looked to see if they did. That’s not what Rubenfeld and Ramaswamy are claiming.
Democracy depends on free and open debate. If government officials continue to deputize private companies to stifle dissenters, it’s high time for federal courts to deliver them a reminder: If it’s state action in disguise, the Constitution applies.
Again, I agree that government officials really should shut up on all this — but nothing described so far goes anywhere near the level necessary to be state action. It is not correct to say that the government cannot ask questions or call out what seems like false information.
This entire article further tarnishes whatever is left of Rubenfeld’s tattered reputation. State action doctrine means something. A government official asking “does this content violate your policies”… is not that.