July 30, 2021

"In some ways, I believe that these tech giants are more powerful than government officials.... take Donald Trump versus Mark Zuckerberg. Trump could be dis-elected..."

"... he could be sued, he can be impeached. And none of the above is true for Mark Zuckerberg, Jack Dorsey, etc, no free speech rights against them, no due process rights against them. And... we've seen more and more of a coalescence between particular political and government leaders, putting increasingly overt pressure on the tech companies to censor speech that these politicians don't like and that they would be completely barred by the First Amendment from directly censoring themselves.... So from from a legal perspective... whether you call it collaboration or pressure, the interrelationship between the two is constitutionally significant, because even private sector actors are directly bound by constitutional norms, including the First Amendment free speech guarantee, if you can show that there is in the legal term to describe this is called entanglement, sufficient entanglement between the government officials and the nominally private sector actors, that if they are essentially conspiring with the government doing the government's bidding, the government can't do an end run around his own constitutional obligations that way.... And I have to say, you know, you talk about certain orthodoxies on the left, I was really shocked at how cavalier and how dismissive the so-called mainstream media was in sneering at Trump's lawsuit, because it really has to be taken seriously.... there is a serious First Amendment challenge here...."

From "Interview with Nadine Strossen on Threat of Big Tech and Big Gov Collusion Against the First Amendment/'Private sector actors are directly bound by constitutional norms, including the First Amendment' if they are being coerced or colluding with the government" (interview with Sam Husseini on Substack).

Nadine Strossen, a law professor, was president of the ACLU from 1991 to 2008.


Ann Althouse said...

Bruce writes:

"The article by Sam Husseini Is pretty good. Normally, the 1st Amdt wouldn’t apply to non government entities (such as Twitter, FB, etc). However, it might, if the censorship were a result of sufficient entanglement (or entwinement) with the government. Here, we have seen pressure being ratcheted up again and again by the Democrats in the White House and Congress to coerce these big companies to censure “misinformation” (or, less guardedly, “disinformation”). This is done by threatening to tighten up their CDA § 230 Safe Harbor protections, if they don’t adequately police what the Democrats consider misinformation. And losing those § 230 protections is an existential threat to these companies, because it protects them from tort (esp defamation) liability, as long as they act as common carriers, and not publishers. The argument outlined in the article is that the sorts of pressure being placed on these companies entangles them enough with the federal government, that the 1st Amdt applies.

"Making the argument stronger is that the area in which the Democrats are probably the loudest in their demands that these large tech companies censure their users, involves the question of whether the Democrats seized control of the Presidency and the Senate last year through massive election fraud. What we appear to have are Democrats having quite possibly seized control of the federal government through election fraud, then turning around and forcing these major tech companies to suppress debate as to whether the Democrats had illegitimately seized the power that they are so blatantly using to suppress debate as to whether they had done so.

"Making things worse, evidence is starting to leak out that there were significant irregularities during the entire election process that would quite possibly have been significant enough that the Presidential and several Senate races might very well have turned out differently, if they hadn’t happened. The AZ Senate audit of the Maricopa county elections is mostly complete, and we should expect (hopefully) it’s results by Labor Day. Others of the critical 6 swing states that put Biden in office (and gave the Dems the Senate) are preparing to conduct similar audits. Given the apparent panic by the Garland DOJ, I think it likely that the Biden Administration expects the worst - evidence of their illegitimacy. And thus, I think, the continued ratcheting up of pressure on these big tech companies to censure what these Democrats consider “misinformation”. "

Ann Althouse said...

Roger writes:

"This reminds me of Burton v. Wilmington Parking Authority. By the late 1950s, it was established Constitutional interpretation that the 14th Amendment ("No state shall ...deny to any person within its jurisdiction the equal protection of the laws.") prohibited governments from discriminating racially. However, the clause didn't apply to people acting privately. The Wilmington Parking Authority owned a parking garage and some storefronts which it had built as part of an urban renewal project. The Eagle Coffee Shoppe had a 20-year lease in one of the storefronts. It refused service to blacks. In 1961, the Court ruled that the Authority was a state actor and that there was enough entanglement between the Authority and the people who ran the coffee shop for their actions to be considered "state action" subject to the equal protection clause.

"So it's hardly novel for nominally private actions to be treated as government actions subject to Constitutional limits.

"Of course, the cynical might say that in 1961 all right-thinking people opposed racial discrimination and were more than willing to stretch the limits of Constitutional interpretation in a good cause. However, today one mark of a right-thinking person is hating Donald Trump so courts will be loath to do any stretching that helps him."

Ann Althouse said...

Tom writes:

"The article is titled: From "Interview with Nadine Strossen on Threat of Big Tech and Big Gov Collusion Against the First Amendment/'Private sector actors are directly bound by constitutional norms, including the First Amendment' if they are being coerced or colluding with the government" (interview with Sam Husseini on Substack).

"My question is semantic. Is it a threat if it is already occurring? The threat of Germany invading Poland ended when the Wehrmacht crossed the border. And the threat of big government and big tech collusion ended a while ago. They are colluding and the evidence is all around us with the suppression of dissenting opinions on any number of subjects (elections, vaccines, masks, Hunter's laptop, etc.). This preemption of corporate power to serve government interests is one of the defining structures of fascism. So I guess all those in the resistance who loudly cried about fascism coming to America under Trump are finally seeing their predictions come true."