Thursday, March 5, 2020

You Don't Become a "State Actor" Just by Getting Government Funding or Benefits,

By Eugene Volokh - March 05, 2020 at 01:21PM

A commenter on the Tulsi Gabbard v. Google thread writes:

If Google had never received a dime of local, county, state, or federal payola, and if Google had never assisted any state actor in the collection, maintenance, and sharing of data obtained pursuant to use of Google, and if there was no immunity from civil liability conferred upon Google for intentionally or negligently publishing defamatory material, or republishing the same, or for de-platforming the speech of others, then, I might be inclined to side with the Googlemeister.

[1.] As a legal matter, it's clear: The First Amendment, by its own terms, applies only to the federal government; the Fourteenth Amendment applies the same rules to state and local governments; but private institutions—search engines, newspapers, employers, universities, landlords, and such—aren't covered. That's the so-called "state action doctrine" (with the "state" referring to the government, whether state or federal), and it explains why a newspaper or Google or others can pick and choose what to publish, what ads to run, and the like.

[2.] The Supreme Court held, in Rendell-Baker v. Kohn (1982), that government funding doesn't make private entities "state actors." If the government attaches speech-restrictive strings to the funding (e.g., "We'll give you these funds only if you promise to restrict speech"), then the government may be held responsible for the speech restrictions. But if the government just gives the funds, and the private entity imposes speech restrictions entirely on its own, then there's no First Amendment problem. And the Court held this in a case where the recipient was a private school that got 90% of its funding from the government.

[3.] Likewise, getting government benefits—even being given legal monopoly status (which Google doesn't have)—doesn't make you a state actor bound by the Bill of Rights. See Jackson v. Metropolitan Edison Co. (1974) (on which Rendell-Baker relied).

[4.] Now this all has to do with whether the Bill of Rights constrains the private entity; statutes aren't subject to the state action doctrine, unless they are specifically limited to restricting the government. Congress imposes many statutory restrictions on private entities, whether attached to funding (as in Title VI or Title IX, which generally require recipients of federal funds not to discriminate based on race or sex) or not (as in Title VII, which generally bars most employers from discriminating, whether or not they get government funds). States might impose similar restrictions, though perhaps not on inherently interstate communications media.

Sometimes the First Amendment might itself constrain such restrictions on private entities (see, e.g., the Boy Scouts v. Dale case). But in any event, it takes a statute to restrain private entities this way, and Congress has never passed a statute purporting to limit Google's ability to restrict speech on its platforms.

[5.] Of course, I'm talking here about the law as it is; some might argue for rejecting the state action doctrine, or for enacting statutory constraints on Google and the like. But that's not the law today; and, if you think it ought to be the law, you might want to consider just what its scope should be: If you live in government-subsidized housing, should you be barred from ejecting guests based on their speech or their religious beliefs, on the theory that what you do on government-subsidized property becomes "state action"? If you get social security or the Earned Income Tax Credit or a government salary or similar benefits, should you be barred from engaging in viewpoint discrimination or religious discrimination in any projects you set up using that money? If you have a hard-to-get professional license—you're a doctor or a lawyer or some such—should you likewise be subject to the First Amendment or the Due Process Clause or the Equal Protection Clause in all your professional decisions?


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