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Fri, Jan 15th 2021 9:39am —
Mike Masnick
I'm beginning to see where Josh Hawley got his totally nutty ideas about the 1st Amendment. The Wall Street Journal has an utterly insane piece by Yale Law professor Jed Rubenfeld -- currently suspended due to sexual harassment claims, and who was infamously quoted telling prospective law clerks for then Judge Brett Kavanaugh, that Kavanugh "hires women with a certain look" -- and a... um... biotech executive named Vivek Ramaswami who is mad about "woke" companies, insisting (wrongly) that the big internet companies are actually part of the US government and therefore have to abide by the 1st Amendment in their content moderation practices.
Conventional wisdom holds that technology companies are free to regulate content because they are private, and the First Amendment protects only against government censorship. That view is wrong: Google, Facebook and Twitter should be treated as state actors under existing legal doctrines. Using a combination of statutory inducements and regulatory threats, Congress has co-opted Silicon Valley to do through the back door what government cannot directly accomplish under the Constitution.
It is “axiomatic,” the Supreme Court held in Norwood v. Harrison (1973), that the government “may not induce, encourage or promote private persons to accomplish what it is constitutionally forbidden to accomplish.” That’s what Congress did by enacting Section 230 of the 1996 Communications Decency Act, which not only permits tech companies to censor constitutionally protected speech but immunizes them from liability if they do so.