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Last week, news reports surfaced that Facebook censored efforts by individuals using its “Events” platform to organize protests of COVID-19-related quarantine orders in Nebraska, New Jersey, and California.  A company spokesman has been telling media outlets that the social networking giant is only censoring Events that are scheduled in states where protesting has been outlawed, never mind that heavy-handed bans on protesting during the pandemic are highly likely to be unconstitutional.

At least one reporter indicated that Facebook censored protest-organizing “Events” on its platform after consulting with those states:

Donie O’Sullivan on Twitter: “Facebook says it has removed promotion of anti-quarantine events in California, New Jersey, and Nebraska after consultation with state governments / Twitter”

Facebook says it has removed promotion of anti-quarantine events in California, New Jersey, and Nebraska after consultation with state governments

Eventbrite has apparently followed Facebook’s lead.

Reports of these decisions prompted another “COVID-19 and the Constitution” reader question:

Nick Williams 🏈💻🥓 on Twitter: “Does acting in coordination with government authorities change the fact that Facebook is not normally subject to first amendment restrictions? Or are they still free to do this? / Twitter”

Does acting in coordination with government authorities change the fact that Facebook is not normally subject to first amendment restrictions? Or are they still free to do this?

“Facebook and Eventbrite are private companies, and therefore they aren’t subject to the First Amendment,” is the most obvious rejoinder, as statements like that have become a popular refrain in the social media age.  To some extent, the statement is true.  If Eventbrite determines that a user has violated its Legal Terms, which include, by reference, its Community Guidelines, or Facebook determines that a user has violated its Terms of Service, including its Community Standards–neither of which are anything more than a contract between the user and the company, to which the user agrees when registering a profile on those platforms–then the company has certain self-executing, private-law remedies for the user’s breach of that contract.  Those remedies can and do include expulsion from the company’s online platform, preventing the user from continuing to use the platform to utter or publish speech.

I have not drilled down into specific areas of its policies, but Facebook’s Community Standards do not appear to prohibit using its Events platform to organize protests that state governments have unilaterally declared to be illegal.  So unless a state government actively interfered and asked Facebook to remove these events, it is not clear why Facebook would do so on its own initiative, especially when its entire business model hinges on getting as many active users to join as possible and then connect them to each other.  In contrast, Eventbrite’s Community Guidelines, which are part of its Legal Terms, do prohibit events that promote illegal activity, so its decision to censor protest-organizing efforts is less puzzling, if nevertheless disappointing.

When a company elects to expel a user or censor content from an online platform, doing so, without more, no more violates the user or speaker’s rights under the First Amendment’s Free Speech Clause than, say, a bartender calling a cab for a belligerent drunk as the bouncer throws the poor sap out the front door of the club.  The First Amendment constrains Congress’s use of its federal powers, simply by virtue of the text “Congress shall make no law,” and the states’ uses of their plenary police powers, by virtue of the word “liberty” in Fourteenth Amendment’s Due Process Clause, which has been interpreted to incorporate the freedom of speech that the First Amendment protects.

But just because an entity happens to be privately organized does not mean that it can never be sued, or that a plaintiff can never recover money damages from it, for an alleged constitutional violation.  That is, there are some instances in which the law will treat a privately organized entity as if that entity were the government itself.  The body of law that permits treating a private entity as if it were the state itself is called the state action doctrine.

Before the law will impose liability for a constitutional violation, it must determine that defendant being sued is a state because the text of the Due Process Clause of the Fourteenth Amendment provides that “No state shall . . . deprive any person of life, liberty, or property without due process of law.”  Section 5 of the Fourteenth Amendment vested Congress with constitutional authority to enact “appropriate legislation” to enforce the Due Process Clause and other substantive provisions of the amendment.  The Radical Republicans of the 39th Congress enacted such legislation in 1871, resulting in a federal civil rights statute that is still on the books today.  That statute provides, in essence, that any state actor who violates another person’s federal constitutional or statutory rights can be subject to a civil lawsuit for money damages.  In other words, this statute is what enables people to sue state governments when the state government violates their federal constitutional rights, like the right to free speech.

Sometimes, a state actor is very easy to identify.  Take, for example, the Raleigh Police Department officer who ordered protesters to disperse under threat of arrest.  Under Monell v. Dep’t of Soc. Servs. of the City of New York, 436 U.S. 658 (1978), a municipality is considered a “state” under federal civil rights law.  The Raleigh Police officer is very clearly a state actor.  He was wearing a uniform and a badge.  He had a gun in the holster on his belt.  He held himself out to the public as a municipal police officer.

Other times, however, it is more difficult to identify a state actor.  The basic question the state action doctrine tries to answer is, “Is the challenged conduct fairly attributable to the state?”  Another way to ask that question is, “Is the person charged with violating the Constitution clothed with the authority of state law?”  There are four broad tests for determining whether the answer to that question is “yes” for a private company.

The first test examines whether a private actor is performing a function that has traditionally been reserved as an exclusive prerogative of the state.  The most often-cited case for this test is Marsh v. Alabama, 326 U.S. 501 (1946), sometimes called the “company town case.”  In Marsh, a private shipbuilding company had built the town of Chickasaw, Alabama, just north of Mobile bay, so its employees could live close to where they worked.  (As I learned back in 2011 when I still lived in the Washington, D.C. area, Milton Hershey did essentially the same thing in rural southern Pennsylvania.)  Grace Marsh was arrested, prosecuted, and convicted of criminal trespass for distributing Jehovah’s Witness literature on the sidewalk outside a post office in Chickasaw without a permit and despite being warned that she could not do so.  She challenged her conviction on the basis that imposing criminal sanctions on her for distributing religious literature violated her First Amendment rights.  The private shipbuilding company argued, in essence, “hey, we’re a private entity, the First Amendment doesn’t apply to us.”  The Supreme Court of the United States disagreed with the shipbuilder.  It ruled that the shipbuilder could be held liable as a state actor because it owned the town of the Chickasaw and had undertaken every function that a municipal government in a small town would typically perform–building and maintaining roads and sewers, creating commercial and residential zones, establishing and funding post offices and police services, etc., etc.  In so doing, the private company assumed the form of a governmental actor, thereby subjecting itself to constitutional constraints.

The second test examines whether the state has endorsed private, discriminatory conduct.  The case most often cited for this proposition is Shelley v. Kraemer, 334 U.S. 1 (1948).  In Shelley, a White person sold his home in 1945 to the Shelleys, a Black family, in St. Louis, Missouri.  However, the subdivision had adopted a racially restrictive covenant 34 years prior that prohibited people who lived in the subdivision from selling their homes to African-American buyers.  If you don’t live in a subdivision, you may not be familiar with the fact that there are certain restrictions on the disposition of all the properties in a subdivision, usually enacted by the original developer through a declaration of covenants and rights–essentially a contract–and those restrictions run with the land from developer to first purchaser of a parcel and every subsequent owner thereof, because of the way that Anglo-American property law works.  (Homeowners’ associations typically have authority to later amend those declarations and restrictions, but, for whatever reason–probably because this was the South in the first half of the twentieth century–that particular covenant was never amended or rescinded.  But I digress.)  Louis Kraemer, who lived in the subdivision, sued in state court to enforce the racially restrictive covenant.  In essence, he asked the court invalidate the sale of the property to the Shelleys.  The state court agreed that the private agreement was enforceable, and it ruled for Kraemer.  On appeal to the Supreme Court of the United States, the Shelleys argued that the covenant violated their rights under the Fourteenth Amendment’s Equal Protection Clause.  The Court did not side with the Shelleys on that point–indeed, it held that private parties could adopt and abide by racially restrictive covenants–but by bringing the state into it through judicial enforcement, the state court gives the racial discrimination its imprimatur, a kind of official endorsement of racial discrimination.  In those cases, a private party’s conduct can be deemed fairly attributable to the state.

The third type of case involves joint activity between a state and a private actor.  This is typically the most complex legal theory because it includes many substrata.

For example, sometimes the law looks to whether a private actor has conspired with the state to deprive someone of constitutional rights, and the leading case on point is Lugar v. Edmonson Oil Co., Inc., 457 U.S. 922 (1982).  Giles Lugar ran a truck stop that he leased from Edmonson Oil Company.  When he fell behind on his rent payments, Edmonson filed a lawsuit against him to collect the outstanding balance.  In an ex parte hearing with the court, i.e. in a hearing without Lugar present to defend himself, Edmonson sought and obtained a writ of attachment that prevented Lugar from selling any of his belongings.  Edmonson wanted that property to be there as collateral that could satisfy a judgment if Lugar could not come up with cash.  In obtaining the writ of attachment in essentially secret proceeding, however, the Supreme Court of the United States held that Edmonson had used the machinery of state government–the judicial process–to deprive Lugar of his right to dispose of his property as he saw fit.  So in any case in which a private actor conspires with a state government to use the machinery of state institutions to violate someone’s constitutional rights, that private actor’s conduct is fairly attributable to the state, bringing the private actor within the ambit of the word “state” in both the Fourteenth Amendment and our federal civil rights statutes.

In other cases, the law examines whether there is a symbiotic relationship between the state and a private actor.  Similar strains examine whether there is an “essential nexus.”  Basically what courts are looking for here is whether the state and the private actor are profiting somehow from conduct that violates a person’s constitutional rights.  Imagine a city-owned parking garage that has a restaurant space inside it, and private person leases the space and operates a restaurant.  The only way to get to the restaurant is to pay to enter the parking garage.  Then imagine that the restaurant starts refusing to serve racial minorities.  On the surface, that looks like purely private discriminatory conduct.  But the law says that, because the city owns and operates the parking garage, and derives a financial benefit from people using the parking garage to access the restaurant, the restaurant’s otherwise private discriminatory conduct is fairly attributable to the city (or, under Monell, the “state”).  In fact, that is precisely what happened, and what the holding was, in Burton v. Wilmington Parking Auth., 365 U.S. 715 (1961).

In other cases still, the law may look for indicia of entwinement between a state and a private actor, as was the situation in a case out of our own backyard here in Nashville, Brentwood Academy v. Tenn. Secondary Sch. Athletic Ass’n, 531 U.S. 288 (2001).  In the Brentwood Academy case, the TSSAA sanctioned Brentwood Academy for recruiting violations, and Brentwood Academy sued the TSAA on First Amendment grounds.  The trial court agreed with Brentwood Academy’s theory of the case, but the Sixth Circuit reversed, holding that there was no state action.  The Supreme Court of the United States reversed again, finding that the TSSAA was so entwined with the State of Tennessee that its conduct was fairly attributable to the state itself.  For example, in contrast to the NCAA and larger regional school athletic conferences, the TSSAA operated only in Tennessee.  Over 80% of TSSAA’s members were public schools, which allowed TSSAA to charge admission to certain athletic contests and which allowed their employees to use paid time to run the administrative aspects of the TSSAA.

The fourth and final category of cases is another easy one to spot.  In this category, a state will either order, through force of law, or heavily encourage private conduct that violates a private party’s constitutional rights.  One of the more obvious examples of this principle in action arose in the case of Reitman v. Mulkey, 387 U.S. 369 (1967).  There, an amendment to the California state constitution legalized private racial discrimination in real estate transactions.  The Supreme Court of the United States held that this provision of the Golden State’s founding charter so significantly encouraged, and so heavily and directly involved the state in, private discrimination that any private discrimination perpetrated because of the law was fairly attributable to the state.  These types of cases can overlap with Shelley and Burton cases to the extent that these kinds of actions can be perceived as official endorsement of conduct that would violate someone’s rights if done directly by a state official.

Under these frameworks, Facebook, probably more so than Eventbrite, is inviting constitutional litigation.  As for Eventbrite, we know that censoring events is an available private-law remedy under its Legal Terms, and we have no evidence that it consulted with state governments before acting.  As for Facebook, however, notwithstanding that we have, at most, skeletal accounts of the facts so far, at least one report tells us that Facebook consulted with state governments before censoring the COVID-19 protest “Events.”  To the extent that the activists organizing them had no opportunity to make their cases in these consultations, Facebook seems to be acting like the Edmonson Oil Company in Lugar, and thus its conduct could be fairly attributed to the states where it has shut down protest “Events” under the joint-activity/conspiracy theory of state action.  It is also not difficult to imagine a state calling Facebook’s headquarters and ordering it to take down the “Events,” which would put a case squarely in Reitman-land; Facebook could just simply be following the mandate of a state law or policy that compels a private actor to violate a citizen’s civil liberties.

Now, just because Facebook could be treated as a state actor and sued under federal civil rights statutes does not mean that its conduct rises to the level of a First Amendment or other constitutional violation.  Reaching that conclusion entails an entirely different line of legal analysis.  But I’m nevertheless sure that Facebook’s investors would rather the company’s directors not needlessly expose its bottom line to litigation expenses to defend even meritorious First Amendment claims by taking such drastic, heavy-handed measures as outright censorship of political speech and associations.