| Former president Donald Trump announced a lawsuit Wednesday against social media companies that have blocked his accounts, including Facebook, Twitter and YouTube. And in doing so, he advanced a rather novel legal argument: that these platforms are not private businesses but in fact state actors, i.e. de facto government entities. One must be a state actor, after all, to be sued for First Amendment violations. Ipso facto, Trump needs the courts to declare social media behemoths such as Facebook state actors. This claim was immediately and widely derided by legal experts, who suggested that it was more of a PR stunt and a fundraising ploy than anything — arguments that were legitimized by Trump quickly seeking to raise money off it. And if Trump's lawsuit fails, he might have his own handpicked Supreme Court justices to thank. BuzzFeed's Zoe Tillman has a must-read piece about the legal ins and outs of this case, with the big takeaway being that Trump's lawsuit largely rests on ideas that courts have rejected. And among the key rulings working against Trump could be a Supreme Court one written by his appointee two years ago. Trump appointee Brett M. Kavanaugh wrote an opinion in 2019 rejecting a somewhat similar effort to declare a platform to be a state actor. In that case, it was the operator of public access channels, Manhattan Neighborhood Network, that had suspended producers over their content. A district court had ruled that MNN was not a state actor, before a federal appeals court disagreed and said it was. Kavanaugh, writing a decision backed by the conservative wing of the court, ruled that it wasn't. He wrote that providing a public platform doesn't make one a state actor who can be sued for First Amendment violations. I'll break up the relevant parts of the decision: 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.
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As the Court said in Hudgens, to hold that private property owners providing a forum for speech are constrained by the First Amendment would be "to create a court-made law wholly disregarding the constitutional basis on which private ownership of property rests in this country." Crucially, as Tillman notes, this decision in Manhattan Community Access Corp. v. Halleck has since been applied more specifically to lower-court cases involving conservatives targeting social media companies. These include a 2020 federal appeals court decision rejecting claims made by Prager University against YouTube. " … Other courts have uniformly concluded that digital internet platforms that open their property to user-generated content do not become state actors," the appeals court said. "These cases follow the Supreme Court's state action precedent and are consistent with its recent teaching in Halleck." Just last week, a district judge in Florida cited Halleck in temporarily blocking a controversial law promoted by Gov. Ron DeSantis (R). The law would prohibit social media platforms from banning politicians shortly before an election and using algorithms for content from or about politicians. At the same time, the judge in that case, Robert L. Hinkle, acknowledged that there were some open questions. "Where social media fit in traditional First Amendment jurisprudence is not settled," he wrote. Among those open questions is whether, even if public platforms such as Facebook aren't inherently state actors because of the function they perform, they can still be considered as such for other, more specific reasons. Kavanaugh added in his opinion: Under this Court's cases, a private entity can qualify as a state actor in a few limited circumstances — including, for example, (i) when the private entity performs a traditional, exclusive public function, (ii) when the government compels the private entity to take a particular action; or (iii) when the government acts jointly with the private entity. And indeed, some have suggested — and Trump's lawsuit argues — that the "state actor" designation might be in play for the likes of Facebook, Twitter, Google and YouTube for a very specific reason: They have government protection from lawsuits. This comes via Section 230 of the Communications Decency Act. If that sounds familiar, it's because it's the same law Trump and his supporters often deride. The Supreme Court ruled in Skinner v. Railway Labor Executives' Assoc. in 1985 on a case involving federal requirements that induced private railroad companies to test employees for drugs and alcohol. The regulations provided some immunity from state law for the private companies, and the court ruled that this made the drug-testing akin to state action. "Whether a private party should be deemed an agent or instrument of the Government for Fourth Amendment purposes necessarily turns on the degree of the Government's participation in the private party's activities, a question that can only be resolved 'in light of all the circumstances,' " the court wrote. "The fact that the Government has not compelled a private party to perform a search does not, by itself, establish that the search is a private one. Here, specific features of the regulations combine to convince us that the Government did more than adopt a passive position toward the underlying private conduct." In other words, this case satisfied reason (ii) laid out by Kavanaugh for when a private entity can be considered a state actor: "when the government compels the private entity to take a particular action." But the question in the case of social media companies, it would seem, is more along the lines of (iii) — whether the government is acting jointly with the private company. So it's not apples to apples. And since Skinner, the courts have taken a rather narrow view of when private companies might be considered state actors, culminating in the Kavanaugh decision. The appeals court had ruled that MNN could be considered a state actor because its channels were authorized by Congress and it was operating under municipal authority, but Kavanaugh rejected that. That decision didn't specifically address social media companies, and the lower-court rulings in social media cases that have cited Halleck aren't binding precedent. But it does suggest that this lawsuit, however seriously intended, does indeed face a tough road ahead — because of and potentially even with Trump's own self-appointed justices. (If you're wondering why I'm here and this newsletter looks a little different: I'm writing The 5-Minute Fix for the next week, followed by Philip Bump, until Amber Phillips returns from parental leave in August.) | 
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