ArgumentsAre Facebook and Google State Actors?

Published 7 November 2019

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.” Jed Rubenfeld writes that what Secretary Herbert Hoover warned against has now come to pass:

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.

Jed Rubenfeld writes in Lawfare that 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.