Big Tech are State Actors

A ‘state actor’ is a private company that either acts on behalf of the government or has other special relationships with the government, which subject it to constitutional restrictions on government, including the First Amendment. Google’s YouTube, Facebook, and Twitter have been state actors since about 2010. They claimed to be neutral, non-discriminating in their political and scientific views and denied any political bias—until about a year ago. Then they reversed the narrative and said that they are private companies that can discriminate against whomever they want.

I can list half a dozen ways in which they are state actors. The pressure on them from Democrat officials, asserted by Trump in his lawsuit, is one of them. Obamanet, or net neutrality, is another one. But most obviously, they became state actors when federal and state government agencies opened accounts on their platforms and started to use them for interaction with the public. By accepting (and luring) multiple government accounts, they became public forums and state actors.

A few days ago, the Supreme Court refused to review the ruling in Knight First Amendment Institute at Columbia University v. Trump, No. 18-1691 (2d Cir. 2019). In it, the district court ruled, and the 2nd Circuit Appellate Court upheld, that each tweet from a government account opens a public forum, and the government cannot block citizens from participating in it. Most of the legal wrangling was over whether the @realDonaldTrump account was a governmental one for the purposes of the First Amendment. It was despite being hosted on a putatively private platform.

The state actor doctrine expresses the general principle that what the government cannot do under the Constitution directly, it cannot do indirectly, such as by delegating to private companies. If the government delegates some of its activity to a private company, that company becomes the state actor in respect to that activity and is bound by all Constitutional restrictions on the government.

It is the same as if a municipal government rents a property for a town hall from a private company. The private company cannot ban residents it does not like from going to the town hall or retaliate against anybody for saying certain things at that town hall. It is irrelevant whether the agreement between the company and the city specifically prohibits that. It is a state actor.

Shortly after Barack Obama won the 2008 election, almost all federal agencies opened accounts on Twitter. Some examples: @FBI – Nov 25, 2008; @ODNI, @DeptofDefense, @TheJusticeDept, @FCC, @CDCEmergency – 2009; @FTC – 2010. Only a handful of agencies had such accounts before the 2008 election. By the end of Obama’s second term, almost all government agencies had accounts on Twitter. Twitter users interacted with tweets from many government accounts and discussed them on their own accounts. Thus, all of Twitter became the government’s interactive space – a public forum, participation in which is protected by the First Amendment. Consequently, Twitter became a state actor, prohibited from banning or otherwise discriminating against the users based on their political views. The same logic and conclusions apply to Google’s YouTube, Facebook, and Microsoft’s LinkedIn. Consequently, all their terms of services, content policies, and other documents restricting citizens’ rights under the Constitution, are null and void.

The state actors’ status of these platforms, coming from their endorsement and active use by the US and state governments, benefitted them enormously, far beyond the visitors’ traffic to governmental accounts. The public, political parties, and other entities understood the large presence of the US government on the Big Tech platforms as a guarantee of freedom of speech and equal treatment by the platform owners.

Today, it seems normal for government agencies at all levels to have accounts (interactive public spaces) on three proprietary platforms, owned by non-competing and colluding corporate behemoths on their terms, allowing those behemoths to abuse at will citizens interacting with those agencies. This practice of third-world dictatorships was started by the corrupt and radical Obama administration.

We should expect that the federal government does not engage in viewpoint discrimination and that it provides access to itself as broadly as possible. It should not give one newspaper exclusive coverage of its activities. When there are physical limits, such as the size of the press room in the White House, it invites multiple press outlets which transmit the press conference to all the public. But with the Internet, physical limits have disappeared. By 2008, many government agencies had their own websites. They used or could use RSS and other open Internet protocols to provide updates available to any aggregators, from the top TV network to tiny blogs. They could distribute information directly by email to subscribers. Free and low-cost software was available to host web forums, allowing the visitors to interact with the government content, to provide comments, and to express opinions. There was even an open protocol and software to run social media (from identi.ca to Mastodon). The government received no benefit from opening accounts on Twitter, Facebook, or YouTube. On the contrary, it incurred large expenses in managing these additional communication channels.

Today, some government agencies rely on Twitter as their exclusive emergency communications channel. Twitter can act as a prosecutor, judge, and executioner by blocking a person in a time of emergency.

The only beneficiaries were the social media companies. The Obama administration did not bother to run a tender or an auction when provided with such a valuable concession. It simply selected friends in Silicon Valley and showered them with gifts, tying them to itself. Another enormous gift to them was net neutrality – a free ride on the consumers’ Internet access fees. This explains why the Democrats were so furious at Facebook and Twitter for allowing Trump to win the 2016 election, and why Big Tech was working so hard to undo his victory.

In an article on Jonathan Turley’s blog, entitled Government Agencies Should Reconsider Using Facebook And Twitter and posted on October 15, 2016 (before Trump’s election win), a contributor mentioned anti-conservative censorship by Facebook and Twitter and noticed the loss of privacy by citizens interacting with the government on these platforms. One passage sounded prophetic:

Therein lies the risk that perhaps government agencies as a whole or individual officials will run afoul of a social medium’s content expectations and these entities will effectively suffer filtering or worse blackouts,” and warned against “relegating the citizenry to a future where only a few social media companies control the information.

Photo credit: Anthony Quintano CC BY 2.0 license

To comment, you can find the MeWe post for this article here.