January 9, 2022

LAWFARE DONE RIGHT: THIS COULD BE A MAJOR CRACK IN THE DAM. As the Good Professor noted earlier today,  shareholders in Google and YouTube are pressing the tech giants to disclose any requests they have received from the Biden administration to scrub politically “problematic” information from the platforms, according to a copy of a shareholder proposal obtained by the Washington Free Beacon.

The article mentions in passing that Supreme Court rulings have held that private entities may not engage in suppression of speech at the behest of government, as it has the same effect as direct government censorship. Although I don’t think the shareholders have standing to sue on anything but the thinnest of corporate governance rules, let me explain how this may open the floodgates and create accountability for BigTech’s censorship.

We know that as “private actors” (a debatable proposition, but let’s accept it for the moment) BigTech cannot be held liable for violating First Amendment rights. But there have been notable cases where the media worked so hand-in-hand with government in violating constitutional rights, they were considered “government agents” for the purposes of 42 U.S. Code § 1983, which allows a private right of action for the violation of established constitutional rights when the “private” entity is “acting under color of law.”

The case that came most quickly to my mind was called Hanlon v. Berger, where CNN did a ride-along in coordination with the United States Fish and Wildlife Service and an assistant United States attorney who raided a Montana ranch. The rancher had allegedly violated Federal wildlife protection laws by poisoning endangered wildlife, including eagles, in an effort to protect their livestock. Citing earlier case law, Justice Stevens noted that:

“There we [held] that police violate the Fourth Amendment rights of homeowners when they allow members of the media to accompany them during the execution of a warrant in their home.” (Emphasis added).

While the feds were excused in Hanlon on qualified immunity grounds based on unrelated facts, CNN was not dismissed from the case, because the rancher had stated enough factual basis to assert that CNN was acting “under color of law.” But private actors cannot assert qualified immunity like law enforcement can.

As is usually the case when corporate media are caught out and face likely loss in court, CNN settled out. (As a result, news organizations have since then severely restricted what we used to call “ride-alongs” with law enforcement).

The rancher suffered a violation of his Fourth Amendment rights, which implicate privacy rights by way of unreasonable search and seizure. This is where it gets interesting: 42 U.S. Code § 1983 allows citizens to sue for the violation of any enumerated constitutional right, and it’s unquestionable that the First Amendment is such an enumerated right.

If, in the matter Glenn referred to, The National Legal and Policy Center can produce evidence showing that the content by specific speakers was scrubbed by BigTech at the behest of the Biden Administration, then it’s “game over” because those censored speakers have the same argument against Google and FB as did the Montana rancher and can use Section 1983 to file suit.

Moreover, even if The National Legal and Policy Center does not produce such evidence of media-government collaboration, conservative and civil libertarian groups can on their own, file FOIA cases to seek that evidence, and the censored groups (*Paging Mr. Prager*) have a legitimate way around the “we’re private entities, so go f*ck yourself” defense.

All they need is the means and the will.

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