Are Facebook and Google State Actors?

That's a very good question indeed, and Jed Rubenfeld asks it in Lawfare:

In 1924, concerned about monopolization in the radio industry, the secretary of commerce said something prescient:

It cannot be thought that any single person or group shall ever have the right to determine what communication may be made to the American people. ... 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.

What Secretary Herbert Hoover warned against has now come to pass. A handful of internet mega-platforms, unsurpassed in wealth and power, exercise a degree of control over the content of public discourse that is unprecedented in history. No governmental actor in this country, high or low, has the authority to excise from even a small corner of public discourse opinions deemed too dangerous or offensive. Yet Facebook and Google do that every day for hundreds of millions of people.

This is permitted as a constitutional matter because Facebook and Google are private companies, whereas the Constitution applies only against state actors. If Facebook and Google were state actors, their censorship policies would have provoked a constitutional firestorm.

But suppose Google and Facebook are in fact state actors when blocking speech they deem objectionable? Suppose existing doctrine already compels this result—not through any fancy reconceptualization, but through a straightforward application of precedent? Then the firestorm would be long overdue, and the world of social media would, as a constitutional matter, have to be turned upside down.

That’s the world I believe we’re living in. At least there’s a very powerful argument for it, deserving of careful consideration, that seems to have escaped litigants and judges alike. If Congress had done in almost any other setting what it’s done to online speech, the unconstitutionality would have been immediately apparent.

Congressional pressure goes to town:

For years, members of Congress have been pressuring Facebook and Google to block (or block more) hate speech, extremist content, false news, white supremacism and so on, threatening these companies with death-sentence regulatory measures, including an antitrust break-up and public-utility-style regulation. These threats have not exactly been veiled. “Figure it out,” said Rep. Cedric Richmond in April 2019, to representatives of Facebook and Google at a hearing on the platforms’ hate speech policies. “Because you don’t want us to figure it out for you.” The threats have apparently been quite effective. Just last month, one day before another round of hearings was to begin, Facebook announced a series of new, more aggressive measures to block hateful and extremist content.

A number of cases indicate that this pressure campaign might on its own be sufficient to turn Facebook and Google into state actors, entirely apart from Section 230. One of these cases, called Writers Guild, is especially analogous. In 1974, the big (pre-cable) television networks adopted the Family Viewing Policy, barring content “inappropriate for viewing by a general family audience” during the first hour of prime time and the hour immediately preceding. Plaintiffs in Writers Guild sued the networks as well as the Federal Communications Commission (FCC), challenging the Family Viewing Policy on First Amendment grounds. Defendants responded that the policy, having been voluntarily adopted by private parties, was exempt from constitutional scrutiny.

In a lengthy, closely reasoned opinion, after a weeks-long trial, the district court rejected this argument. The court found that the Family Viewing Policy had been adopted due to “pressure” from the FCC, which was itself responding to pressure from congressional committees. The FCC had not mandated the Family Viewing Policy, but its chairman had “threatened the industry with regulatory action” and “with actions that would impose severe economic risks and burdens” on the networks if they did not move to block excessive “sex and violence” from prime-time programming. As a result, the court concluded, the state action requirement was satisfied.

Writers Guild is hardly controlling. Not only is it a mere district court opinion about a different medium in a different era, but that opinion was later vacated on jurisdictional grounds. Nevertheless, the case is an important example. It shows that the question of whether, or how greatly, governmental pressure has influenced Google’s or Facebook’s content-based censorship policies is ultimately a triable question of fact—with the state action determination hanging in the balance.

The bottom line, however, is this: When governmental pressure is combined with a statutory provision like Section 230, the result must be state action. Immunity plus pressure has to trigger the Constitution’s restraints.

See this earlier post,  Henry Farrell on weaponized interdependence & regulating the internet [Tyler Cowen interview], and various posts under the heading of virtual feudalism, including the initial provocation: The New World Order of Virtual Feudalism (scan down the page a bit).