The 21st century court system has seen a surge of Internet-related cases as websites and social media platforms continue to connect more individuals around the globe. Although the common voice has been elevated, there is a growing concern that these platforms may be violating their users’ free speech rights while asserting their own status as private entities.
The First Amendment and state action. The First Amendment provides that “Congress shall make no law . . . abridging the freedom of speech, or of the press. . . .” While it is well settled that this provision restricts government action, the U.S. Supreme Court has extended this rule to address situations in which a private actor is treated as an agent of the state and therefore subject to constitutional claims. Non-state actors have been found to be state actors under two limited exceptions: the government entanglement exception and the public function exception.
Under the government entanglement exception, private parties may also qualify as state actors if they act as government agents or if other factors demonstrate a “nexus” between the government and the private party’s speech-restrictive action. For example, where a private entity provides an essential service traditionally and exclusively reserved to the state, the Supreme Court has found such a nexus. (See Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass’n, 531 U.S. 288, 352 (2001).)
Under the public function exception, a private party may be subject to the First Amendment if it exercises “powers traditionally exclusively reserved to the State.” (See Jackson v. Metro. Edison Co., 419 U.S. 345, 352 (1974).)
The Supreme Court recently discussed the state action doctrine as applied to the digital era in Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921, 1921 (2019). The Court analyzed a New York regulation that requires cable operators of a certain size to provide a public-access channel with content broadcast on a first-come, first-served basis.
In Halleck, the Supreme Court adopted a new test by which a court may find state action by a private actor in three situations: when a private party meets the “traditional, exclusive public function” test; “when the government compels [a] private entity to take a particular action”; and when the “government acts jointly with the private entity.” Under this new test, “merely hosting speech by others is not a traditional, exclusive public function and does not alone transform private entities into state actors subject to First Amendment constraints.” While the Court narrowed this decision to public-access channels, its reasoning has often been cited when discussing the First Amendment rights of social networking users.
Social media censorship challenges in the Ninth Circuit. As noted in Hammerhead Enters. Inc. v. Brezenoff, 707 F.2d 33, 39 (2d Cir. 1983), the government may violate the First Amendment by encouraging a third party to limit speech in a way that “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.” This issue of “jawboning” has been one of interest recently. Regulations enacted by the government that prompt a certain action can also create state action if a statute or regulation provides “clear indices of the Government’s encouragement, endorsement, and participation.” (See Skinner v. Ry. Lab. Execs.’ Ass’n, 489 U.S. 602, 616 (1989).)
Recently, individuals have sued social media platforms such as Facebook and Twitter, claiming that their actions were equivalent to state action. In Huber v. Biden, No. 21-CV-06580-EMC, 2022 WL 827248 (N.D. Cal. Mar. 18, 2022), the court considered whether content moderation by Twitter equated to coerced state action. Colleen Huber, an anti-vaccine activist, tweeted a quote from an Israeli news article on her personal Twitter account. Soon after, Twitter suspended Huber’s account, claiming that it violated its “Twitter COVID-19 Policy,” which states that users “may not use Twitter’s services to share false or misleading information about COVID-19 which may lead to harm.” Huber sued Twitter, claiming that the platform conspired with the Biden administration to prevent negative content related to the COVID-19 vaccine. The court found that Huber failed to adequately allege that President Joe Biden and Twitter worked hand in hand to suspend her Twitter account or that Twitter would not have suspended her account absent an improper motive or conspiracy. With no evidence of conspiracy, the court held that Twitter was, in fact, a private actor and was not subject to the constraints of the First Amendment.
The same court addressed a similar scenario in Berenson v. Twitter, Inc., No. C 21-09818 WHA, 2022 WL 1289049 (N.D. Cal. Apr. 29, 2022). In an attempt to limit the spread of disinformation during the pandemic, Twitter announced a five-strike policy in which staff review tweets for violation of Twitter’s rules and policies. The first strike does not result in any further action, the second and third strikes result in a 12-hour account lock, the fourth strike results in a seven-day account lock, and the fifth strike results in a permanent suspension.
After this policy’s implementation, Alex Berenson, a journalist, found himself suspended from Twitter after receiving five strikes for his outspoken criticism of the response to the COVID-19 pandemic. Berenson alleged that cajoling from various federal officials about the need to address COVID-19 misinformation transformed Twitter into a state actor. The court found that Berenson’s allegations did not constitute a “plausible” First Amendment claim. The court held that Berenson had not alleged sufficient facts to find that the government coerced Twitter in a way that would lead it to conclude the site was participating in state action.
This court took up the question once again in Hart v. Facebook Inc., No. 22-cv-00737-CRB, 2022 WL 1427507 (N.D. Cal. May 5, 2022). After Facebook and Twitter removed a post by user Justin Hart, he sued both platforms, President Biden, and the Surgeon General for violating his First Amendment right to free speech. The post at issue was critical of requiring children to wear masks to prevent the spread of COVID-19. Hart argued that restricting his post containing what the site classified as misinformation about COVID-19 amounted to joint government action. The court dismissed the First Amendment claim for lack of evidence of state action. In its opinion, the court noted that Hart’s account was flagged months before any statement that was offered as evidence was made. Even so, as the court went on to state, “[a] President’s one-time statement about an industry does not convert into state action all later decisions by actors in that industry that are vaguely in line with the President’s preferences.”
ABA FORUM ON COMMUNICATIONS LAW
This article is an abridged and edited version of one that originally appeared on page 36 of Communications Lawyer, Fall 2022 (38:1).
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