SCOTUS “Public/Private” Action Case dooms Section 230

In Section 230, the government has unconstitutionally deputized private companies armed with virtual total immunity, to explicitly violate the most cherished freedom Americans possess, the right of free speech. Op-ed.

Mark Langfan ,

US Supreme Court
US Supreme Court
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In October 2020, I wrote an article “Section 230 Facially Violates 1st Amendment by sub-contracting censorship.”

President Trump’s lawsuit against Big Tech invoked my core argument that the Federal Government’s granting of lawsuit immunity for the “private” Tech companies under Section 230 amounted to “public” action, and hence the Government - facially unconstitutionally - delegated the unlawful power to censor constitutionally protected speech to those “private” companies.

Legal commentators have made numerous false legal claims panning President Trump’s Tech lawsuit. However, the most egregiously false legal claim says that the US Supreme Court’s recent case of Manhattan Community Access Corp. v. Halleck, (2019) (“Manhattan Community Access”), decided by the “conservative” wing of the Supreme Court, dooms Trump’s Lawsuit.

In fact, the opposite it true. The “Manhattan Community Access” case actually dooms Section 230, and is the bedrock of Trump’s case.

The reason: The Conservatives relied on an electric service/utility” “private action” case, that of Jackson v. Metropolitan Edison Co., 419 U.S. 345(1974) (hereinafter the “Jackson Case”) which actually lays the legal groundwork for finding that the Section 230 censorship statute is “public action.”

A bit of explaining is in order. First, what was the Manhattan Community Access case? A few disgruntled producers were boxed out of a New York “public access” station seemingly over the content of their productions. The Conservative block in a thin 5-4 decision ruled the “public access” stations were “private actors” based on very narrow reading of what “public property” was being used by the managing stations.

In the Manhattan Community Access case, the conservative and liberal dueling opinions sounded more like a legal food fight rather than a Supreme Court decision. The two opinions seemed to argue over basic facts that should have been nailed down a lot tighter before there was a ruling. The Conservative Majority opinion itself admitted as much when the opinion’s author Justice Kavanaugh stated in his concluding remarks, “Having said all that [i.e. Justice Kavanaugh’s entire opinion] our point here should not be read too broadly. . . We decide only the case before us in light of the record before us.” In other words, the facts were altogether very murky and unclear, and don’t read too much into this case.

Second, while at first blush the Community Access case doesn’t look good for Trump’s anti-230 lawsuit, once you scratch the case’s surface, Justice Kavanaugh’s citing the “electric service/utility” Jackson Case as the cornerstone for his Manhattan Community Access decision is actually the ultimate legal weapon against Section 230.

How? In the Court’s brief description of the Jackson case, Justice Kavanaugh refers to the Jackson Case as an “electric service” case where the alleged constitutional violation by the utility was found to be a “private action” not a “public action.” But then my dear reader should say, “Hey, Langfan didn’t you write in your last article that an “electric utility’s” being empowered with a Section 230-like statute that empowered a utility to shut off a person’s electricity would be clearly unconstitutional?” My answer would be “Yup!” and the Jackson case actually proves I was right.

That’s because the “constitutional” infringement in Jackson Case that was found by the Supreme Court to be “private action” was merely the act of terminating of electric service for failure to pay the electricity bill. The Plaintiff in Jackson demanded full constitution rights of notice and a hearing before his electricity was turned off. In Jackson, the Supreme Court found the alleged “constitutional” violation did not have a “nexus” to the sovereignty and power of the state, therefore, terminating the Plaintiff’s electricity was not “state action.” However, in Section 230, the “power to censor” and the “governmental immunity” afforded the Tech companies are inextricably enmeshed with each other so there is a direct nexus between the 1st Amendment constitutional violation and challenged action of the otherwise “private” entity.

Imagine if in Jackson, instead of terminating a deadbeat’s electricity, the utility had been empowered with a Section 230-like statute where the utility could turn off a customer’s electricity for merely engaging in constitutionally protected behavior or speech. The utility version of Section 230 would have been shredded to pieces.

In Justice Rehnquist’s words in the Jackson Case he stated: “Here, the action complained of was taken by a utility company which is privately owned and operated, but which, in many particulars of its business, is subject to extensive state regulation. The mere fact that a business is subject to state regulation does not, by itself, convert its action into that of the State for purposes of the Fourteenth Amendment. [Footnote 7] 407 U.S. at 407 U. S. 176-177. Nor does the fact that the regulation is extensive and detailed, as in the case of most public utilities, do so. Public Utilities Comm'n v. Pollak, 343 U. S. 451, 343 U. S. 462 (1952).

It may well be that (Page 419 U. S. 351) acts of a heavily regulated utility with at least something of a governmentally protected monopoly will more readily be found to be "state" acts than will the acts of an entity lacking these characteristics. But the inquiry must be whether there is a sufficiently close nexus between the State and the challenged action of the regulated entity so that the action of the latter may be fairly treated as that of the State itself. Moose Lodge No. 107, supra, at 407 U. S. 176. The true nature of the State's involvement may not be immediately obvious, and detailed inquiry may be required in order to determine whether the test is met. Burton v. Wilmington Parking Authority, supra.”

The key language is “But the inquiry must be whether there is a sufficiently close nexus between the State and the challenged action of the regulated entity so that the action of the latter may be fairly treated as that of the State itself.” The State “nexus” of Section 230 is patently and facially constitutionally obvious and infirm.

The Trump Lawsuit is not about someone deadbeat getting his lights turned off for non-payment of the electricity bill. Trump’s 230 Lawsuit is about the survival of the 1st Amendment and the United States of America. A little different.

But, the Jackson Case Opinion gets even better for President Trump. Justice Rehnquist continued, “If (Page 419 U. S. 353) we [the Supreme Court] were dealing with the exercise by Metropolitan of some power delegated to it by the State which is traditionally associated with sovereignty, such as eminent domain, our case would be quite a different one.” Well, under Section 230, the Federal Government delegated the ultimate power of sovereignty - i.e. “the power to censor” is inextricably mixed with the governmental power of immunity from private lawsuit. Hence, here where the Federal Government power nexus is inescapable, to quote Chief Justice Rehnquist, “our case [Trump’s Case] would be quite a different one.”. For, if a “sovereign power” such as “eminent domain/condemnation” would trigger “state action” scrutiny for Justice Rehnquist, then surely, “1st Amendment censorship mixed with governmental immunity” would trigger “state action” constitutional scrutiny.

As a further example of Justice Kavanaugh’s laying the legal groundwork of finding Section 230 unconstitutional in the Community Access case, he also cited the case of Public Utilities Comm'n v. Pollak, 343 U. S. 451, 343 U. S. 462 (1952). (see above infra). In Pollack, a passenger on the Washington DC bus system claimed the bus’s piped-in music system violated his constitutional rights. In Pollak, the Supreme Court found “state action” that triggered the full constitutional right review not because the DC transit system was a “monopoly” or because it was a “governmental” system. Instead, the Court stated, “We rely particularly upon the fact that a [governmental] agency, pursuant to protests against the radio program, ordered an investigation of it [the piped-in music] and, after formal public hearing, ordered its investigation dismissed on grounds that the public safety, comfort, and convenience were not impaired thereby.” Pollak at 343 US 462. So merely having a governmental hearing and making a governmental finding triggered full “state action” constitutional scrutiny.

Applying the Pollak legal logic to Section 230 proves beyond a doubt that Section 230 is de jure “state action” by a private entity. Section 230’s conferring immunity from civil lawsuits enmeshed with its power to censor is infinitely more “state action” than Pollak’s holding of a public hearing and a rendering a governmental factual finding. If merely having a “governmental hearing and making a factual finding” was enough “state action” to trigger constitutional “state action” scrutiny of piped-in public bus music, then the witch’s brew of Section 230’s conferring governmental immunity as it simultaneously empowers censorship clearly triggers the “state action” threshold for constitutional review of Section 230 as “state action.”

There’s an additional Justice Kavanaugh exacting basis cited in Manhattan Community Access, of “when the government acts jointly with the private entity, see, e.g Lugar v. Edmondson Oil Co., 457 U.U. 922, 941-42 (1982). In Lugar, the State of Virginia passed a law that allowed a private party creditor to bring an ex parte (that is, brought solely by the creditor without notice to the debtor or appearance of the debtor) attachment of the debtors’ property. In Lugar, the Supreme Court held that the enabling state statute upon which the creditor relied to execute the ex parte attachment triggered “state action” even though the attachment was brought by a private property. In short, the Virginia statute was unconstitutional because it allowed a party party, “under color of state law,” to deprive a party of his constitutional rights without notice and a hearing before his property was attached. The Supreme Court found that a private party creditor merely relying “under the color” of a state statute to commit an unconstitutional infringement triggered “state action.”

Again, under Section 230, the federal statute conferring civil litigation immunity is the offending enabling statute that empowers the “private” tech companies to engage in their unconstitutional censorship. Hence, the Tech companies are acting “under color of federal law” when they rely on Section 230’s immunity to unconstitutionally censor constitutionally protected content. Therefore, Lugar facially, directly, and exactly applies to render Section 230 unconstitutional.

And, of course, the White House Spokesperson Jen Psaki only highlighted the gruesome, as applied, unconstitutional partnership in the tech companies violating the 1st Amendment when she admitted that the White House “flagged” accounts to social media which needed to be banned.

However, Lugar did not require a finding of additional state action more than the existence of the facially constitutionally infirm Virginia statute.

In sum, Section 230, in effect, governmentally deputizes and immunizes private companies to censor protected speech no less than if the federal government deputized and immunized a private party to make a criminal arrest in the name of the sovereign United States. As such, Section 230 is not only facially unconstitutional, but is also an abhorrent exercise of governmental power.

Imagine if the Federal Government enacted a statute that empowered a “private” company to investigate Americans for “constitutionally protected activities” and simultaneously gave the same private companies “immunity” from civil lawsuits for their actions that otherwise violated the US Constitution. The Government, in effect, deputized the private company with the power of the sovereign.

In Section 230, the government has unconstitutionally deputized private companies armed with virtual total immunity to explicitly violate the most cherished freedom Americans possess, the right of free speech. Similarly, if Section 230 is “constitutional,” then nothing stops the government from empowering electric utilities or any private company from banning you for your constitutionally protected speech.

This is not a slippery slope, this is slippery abyss from which America will never recover. If America loses its 1st Amendment freedom of speech, America is no longer democratic America, but a Techo-plutocracy owned and ruled by a handful of tech centa-billionaires, cum-trillionaires.

Mark Langfan is Chairman of Americans for a Safe Israel (AFSI) and specializes in security issues, has created an original educational 3d Topographic Map System of Israel to facilitate clear understanding of the dangers facing Israel and its water supply. It has been studied by US lawmakers and can be seen at www.marklangfan.com.



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