In 1973, the U.S. Supreme Court held in Norwood v. Harrison that the government “may not induce, encourage, or promote private persons to accomplish what it is constitutionally forbidden to accomplish.”
Following that precedent, former President Donald Trump can win his lawsuit against tech giants Google, Facebook, and Twitter because they are carrying out censorship on the government's behalf, an analysis said.
"Their censorship constitutes state action because the government granted them immunity from legal liability, threatened to punish them if they allow disfavored speech, and colluded with them in choosing targets for censorship," Vivek Ramaswamy wrote for the Wall Street Journal on July 11.
The Supreme Court, Ramaswamy noted, has held in several instances that "federal immunity pre-empting state law can transform a private party’s conduct into state action subject to constitutional scrutiny."
Ramaswamy cited Railway Employees’ Department v. Hanson (1956), in which the justices found state action in union-employer agreements because Congress had passed a statute immunizing such agreements from liability under state law. In Skinner v. Railway Labor Executives Association (1989), the court again found state action in a private company’s conduct because federal laws immunized companies from liability if they tested employees for drugs.
Democrats in Congress "have also issued severe, explicit and repeated threats to retaliate against social-media giants if they fail to remove 'hate speech' and 'misinformation' that the government can’t directly censor under the Constitution. These threats have worked," Ramaswamy noted.
Trump's lawsuit cites an October 2020 Senate hearing during which Connecticut Democrat Sen. Richard Blumenthal told CEOs Jack Dorsey of Twitter and Mark Zuckerberg of Facebook: “The president has used this microphone to spread vicious falsehoods in an apparent attempt to overturn the will of the voters.” In the same hearing, Blumenthal threatened “a breakup of the tech giants” and “Section 230 reform,” including “possible repeal.”
Zuckerberg has called such regulations an “existential threat” to Facebook. Facebook and Twitter banned Trump in January.
In Bantam Books v. Sullivan (1963), the Supreme Court held that the First Amendment was violated when a private bookstore stopped selling works after officials deemed them “objectionable” and threatened prosecution. In Carlin Communications v. Mountain States Telephone & Telegraph Co. (1987), the Ninth Circuit Court of Appeals found that a telephone company was acting as a state agent when it acceded to government threats to stop carrying offensive content on paid dial-in lines.
In a July 12 analysis for the Hoover Institution, Richard A. Epstein cited the 1961 case Burton v. Wilmington Parking Authority.
"In that case, the Eagle Coffee Shoppe, Inc., operated a restaurant in a city-owned public parking garage. It refused to serve Burton, a black patron, solely because of his race," Epstein noted. "The Delaware Chancery court held that that decision was private action outside the protection of the Equal Protection Clause, but the Supreme Court reversed unanimously, holding that the 'state participation' in the overall construction and management of the parking facility made that ostensibly private decision illegal under the Equal Protection Clause, even though the Eagle Coffee Shoppe, and only the Eagle Coffee Shoppe, excluded the plaintiff on the grounds of race."
The court held that “No state may effectively abdicate its responsibilities by either ignoring them or by merely failing to discharge them whatever the motive may be,” even in good faith.
"That same logic should apply to the First Amendment," Epstein noted.
As Burton stated, the city agency “has so far insinuated itself into a position of interdependence with Eagle that it must be recognized as a joint participant in the challenged activity.” Hence, that activity was not “purely private” for the purposes of the First Amendment.
Epstein added: "Whether the level of cooperation alleged between the CDC and incoming officials of the Biden administration is covered by Burton is unclear. But it is not enough to say that the ultimate decision was made solely by Twitter, Google, or Facebook. At the very least, these defendants should not be able to dismiss the case on the pleadings alone but will have to face a fact-intensive inquiry to determine whether these private/public connections are in each individual case close enough to convert private into state action."
In Trump's case, Epstein noted, "Start with the simplest proposition that Twitter (now as a government actor) may properly ban Trump for life, claiming his conduct surrounding the occupation of the Capitol building on January 6, 2021, was an incitement to violence."
The proper governmental response to possible threats of violence was articulated in Brandenburg v. Ohio (1969), involving the organizing efforts of the Klu Klux Klan: “the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”
There is "no gray area here," Epstein wrote, noting that "whatever the correct interpretation of Trump’s remarks on January 6, 2021, the risk of any future violence is vanishingly small and not imminent. Accordingly, the government (and its private allies) must stand down until he engages in some palpable form of misconduct. Trump’s tendency to tweet/comment erratically does not come remotely close to reaching the standard outlined Brandenburg."
According to allegations in other pending lawsuits, Twitter formed “trusted partner” relationships with state officials to remove content identified by the officials as election misinformation — "when in reality the content was simply critical of state policies," Ramaswamy noted.
In September 2020, Zuckerberg acknowledged that Facebook “works with” the Centers for Disease Control and Prevention to remove Covid-related content. Facebook’s official policy states that it is “advised” by public-health authorities about what Covid content should be blocked. For months, while officials including Anthony Fauci proclaimed that the Wuhan lab-leak theory was “debunked” and a “conspiracy theory,” Facebook blocked any mention of that theory as “misinformation.”
But after Fauci and the Biden administration retreated from this position, Facebook almost immediately lifted its ban.
"Recently published email exchanges between Zuckerberg and Fauci reveal no evidence of direct instruction from the government on this point but make a case for Facebook’s willful participation in a joint activity with the government," Ramaswamy noted.
Trump’s critics, who contend that everything he says and does is a conspiracy theory, "are mistaken to think the claims he raises are completely novel," Ramaswamy wrote. "But the case is unprecedented in another way — the staggering scale of Big Tech’s power to restrict speech. No company in U.S. history has so comprehensively silenced elected officials or prevented them from communicating with citizens. Worse, they did so at the behest of, and in careful coordination with, government leaders in the ascendant opposition party as it gained power."
In 1924, then-Commerce Secretary Herbert Hoover warned against the concentration of corporate power in the radio industry: “We cannot allow any single person or group to place themselves in a position where they can censor the material which shall be broadcasted to the public.”
Ramaswamy concluded: "Almost a century later, the danger he foretold has been realized. Trump’s case provides an opportunity to address it."
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