NetChoice, the Supreme Court, and the State Action Doctrine

Cite this Article
Ben Sperry, NetChoice, the Supreme Court, and the State Action Doctrine, Truth on the Market (February 28, 2024),

George Orwell’s “Nineteen Eighty-Four” is frequently invoked when political actors use language to obfuscate what they are doing. Ambiguity in language can allow both sides to appeal to the same words, like “the First Amendment” or “freedom of speech.” In a sense, the arguments over online speech currently before the U.S. Supreme Court really amount to a debate about whether private actors can “censor” in the same sense as the government. 

In the oral arguments in this week’s NetChoice cases, several questions from Justices Clarence Thomas and Samuel Alito suggested that they believed social-media companies engaged in “censorship,” conflating the right of private actors to set rules for their property with government oppression. This is an abuse of language, and completely inconsistent with Supreme Court precedent that differentiates between state and private action. 

This is well-worn ground. In Manhattan Cmty. Access Corp. v. Halleck, the Court (including both Thomas and Alito) was crystal clear about the distinction between government and private actors, emphasizing that the state-action doctrine was fundamental to understanding the First Amendment’s protections. Just a short survey of quotes from the case make abundantly clear that the First Amendment only applies to government actors:

The Free Speech Clause of the First Amendment constrains governmental actors and protects private actors. To draw the line between governmental and private, this Court applies what is known as the state-action doctrine.

Ratified in 1791, the First Amendment provides in relevant part that “Congress shall make no law … abridging the freedom of speech.” Ratified in 1868, the Fourteenth Amendment makes the First Amendment’s Free Speech Clause applicable against the States: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law ….” § 1. The text and original meaning of those Amendments, as well as this Court’s longstanding precedents, establish that the Free Speech Clause prohibits only governmental abridgment of speech. The Free Speech Clause does not prohibit private abridgment of speech.

In accord with the text and structure of the Constitution, this Court’s state-action doctrine distinguishes the government from individuals and private entities. By enforcing that constitutional boundary between the governmental and the private, the state-action doctrine protects a robust sphere of individual liberty.

When the government provides a forum for speech (known as a public forum), the government may be constrained by the First Amendment, meaning that the government ordinarily may not exclude speech or speakers from the forum on the basis of viewpoint, or sometimes even on the basis of content… 

By contrast, when a private entity provides a forum for speech, the private entity is not ordinarily constrained by the First Amendment because the private entity is not a state actor. The private entity may thus exercise editorial discretion over the speech and speakers in the forum.

Providing some kind of forum for speech is not an activity that only governmental entities have traditionally performed. Therefore, a private entity who provides a forum for speech is not transformed by that fact alone into a state actor. After all, private property owners and private lessees often open their property for speech. Grocery stores put up community bulletin boards. Comedy clubs host open mic nights… 

In short, merely hosting speech by others is not a traditional, exclusive public function and does not alone transform private entities into state actors subject to First Amendment constraints.

If the rule were otherwise, all private property owners and private lessees who open their property for speech would be subject to First Amendment constraints and would lose the ability to exercise what they deem to be appropriate editorial discretion within that open forum. Private property owners and private lessees would face the unappetizing choice of allowing all comers or closing the platform altogether…. The Constitution does not disable private property owners and private lessees from exercising editorial discretion over speech and speakers on their property.

It is sometimes said that the bigger the government, the smaller the individual. Consistent with the text of the Constitution, the state-action doctrine enforces a critical boundary between the government and the individual, and thereby protects a robust sphere of individual liberty. Expanding the state-action doctrine beyond its traditional boundaries would expand governmental control while restricting individual liberty and private enterprise. 

Thus, it is quite perplexing to see the embedded assumptions that Justices Thomas and Alito appear to be in questions like these:

JUSTICE THOMAS: So I’m just trying to get more of a – more specificity as to what the speech is in this case. They are censoring, as far as I can tell, and I don’t know of any protected – speech interests in censoring other speech, but perhaps there is something else.

JUSTICE THOMAS: Mr. Clement, if the government did what your clients are doing, would that be government speech?

JUSTICE THOMAS: can you give me one example of a case in which we have said the First Amendment protects the right to censor? 

JUSTICE ALITO: There’s a lot of new terminology bouncing around in these cases, and just out of curiosity, one of them is “content moderation.” Could you define that for me?JUSTICE ALITO: Is it — is it anything more than a euphemism for censorship? Let me just ask you this. If somebody in 1917 was prosecuted and thrown in jail for opposing U.S. participation in World War I, was that content moderation? 

JUSTICE ALITO: Well, I mean, the particular word that you use matters only to the extent that some may want to resist the Orwellian temptation to recategorize offensive conduct in seemingly bland terms. But, anyway, thank you.

JUSTICE THOMAS: The – Mr. Clement said the difference is that if the government does it, it is censoring. If a private party does it, it is – I forget – content moderation. These euphemisms bypass me sometimes. But – or elude me. The – do you agree with that distinction?

Put simply, the state-action doctrine explains the difference between censorship (of the concerning governmental sort) and editorial discretion (ordinary private “censorship”) which, in the case of social-media companies, is often called content moderation.

Social-media companies can kick you off their platform or restrict your ability to post, but that’s about it. They can’t put you in jail. However much social media is the “modern public square,” it remains private property, and they have the right to exercise editorial discretion. The only thing Orwellian is to conflate this obvious distinction. The euphemism would be saying that you are in “Facebook jail” or some other nonsense that obfuscates that you were found in violation of the terms of service that you agreed to abide when using the platform.

As Justice Brett Kavanaugh put it:

JUSTICE KAVANAUGH: Just pick up on the word “censorship” because I think it’s being used in lots of different ways. So, when the government censors, when the government excludes speech from the public square, that is obviously a violation of the First Amendment.

When a private individual or private entity makes decisions about what to include and what to exclude, that’s protected generally editorial discretion, even though you could view the private entity’s decision to exclude something as “private censorship.”

JUSTICE KAVANAUGH: When I think of “Orwellian,” I think of the state, not the private sector, not private individuals. Maybe people have different conceptions of “Orwellian,” but the state taking over media, like in some other countries. And in Tornillo, we made clear, the Court made clear, that we don’t want to be that – that country, that we have a different model here and have since the beginning, and we don’t want the state interfering with these private choices.

This is why I think (although I am admittedly biased, as a co-author) that the International Center for Law & Economics’ (ICLE) amicus brief in these cases is especially relevant. The approach we took was not only to discuss the economic reasons that multisided platforms like social-media companies have to engage in content moderation, but to show that a “common-carriage” regulatory regime for social media would be functionally the same as the “company town” state-action theory rejected in Halleck. As we put it:

The challenged Florida and Texas laws treat social-media platforms essentially as company towns. But social-media platforms simply do not demonstrate the requisite characteristics sufficient to treat them as company towns whose moderation decisions are subject to court review for viewpoint discrimination. Instead, consistent with their economic function, they are private actors with their own rights to editorial discretion protected from government interference.

While one might be rightfully concerned about how social-media companies exercise their editorial discretion, that doesn’t mean you can restrict their rights in a way that would be consistent with the First Amendment, any more than you can use government force to suppress speech you don’t like. The answer for bad uses of editorial discretion comes from the marketplace of ideas itself, where social-media users and advertisers can exit the platform if they don’t like its content-moderation policies or want to be associated with its reputation. 

As the Court put it in Miami Herald Publishing Co. v. Tornillo:

The power of a privately owned newspaper to advance its own political, social, and economic views is bounded by only two factors: first, the acceptance of a sufficient number of readers—and hence advertisers —to assure financial success; and, second, the journalistic integrity of its editors and publishers.

In sum, to directly answer Justices Thomas and Alito, social-media companies really can’t “censor” in ways that the government can. The best they can do is exclude those who violate the rules they set up for using their property. Constitutionally, the only limitation on the editorial discretion of these companies comes from the marketplace of ideas itself.