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With Twitter’s expulsion of Trump, “state action” is now on people’s minds. David Strauss classic “State Action After the Civil Rights Era” provides a helpful functional model for thinking about the problem. https://scholarship.law.umn.edu/cgi/viewcontent.cgi?article=1256&context=concomm 1/...
Strauss’ key takeaway: Thinking of “state action” as a unified concept identical across cases dealing w/ Jim Crow during the civil rights era and free speech in 1980s makes no sense. He proposes a “functional” POV focused on cohesiveness, insularity of social actors. 2/...
During Jim Crow, white society was cohesive and insular in its pursuit of white supremacy. Inferring “state action from state ‘neutrality’ made sense, b/c “all that was needed was for the law enforcement authorities to tum a blind eye” for whites’ enforcing racist agenda. /3...
But this notion of state action made less sense w/ speech in the 1980s-90s, b/c society was more divided among multiple, competing points of view. state. Society aren’t unified, and there’s a lot more uncertainty about the right way to govern speech than about Jim Crow. 4/...
Strauss urged that experimentation in governance regime was needed, and he suggested that maybe Harlan was right to enforce a more limited concept of “state action” against local govts and state universities than feds. 5/...
How would Strauss’ “functional” POV apply to Twitter, Facebook, etc? Maybe think of them as sources of experimentation about how to govern speech. We have diverse public opinion, little unity between state & society, and little consensus about how speech should be governed. 6/...
On this view, the critical question would more resemble antitrust questions or federalism “foot-voting” questions than traditional “state action” questions. We’d care about market share, ease of moving across platforms, etc. 7/...
First Amendment doctrine tends to downplay or even ignore these institutional questions of how well the system as a whole performs. So much the worse for the doctrine. It’s been 15 years since Fred Schauer advised us to get more institutional. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=668521 8/...
One step in the right direction would be to stop saying functionally simplistic stuff like, “well, free speech means private actors can decide what speech to sponsor,” and instead take a look at market incentives for creating balanced speech regimes across private actors. /End
@Richard_Primus @barryfriedman1 @dorfonlaw might have other free-speech institutionalists in mind aside from Strauss and Schauer. Other important contributors are Paul Horwitz and Rick Garnett. https://www.hup.harvard.edu/catalog.php?isbn=9780674055414
(That’s @RickGarnett btw: sorry for subtweeting)
Strauss’ fellow Chicagoans @glakier and @WilliamBaude might have some scholars who focus on the institutional side of civil liberties to add to the list. I’m returning to this area now, so could use all of your help! (My initial effort in this area: https://www.nyulawreview.org/issues/volume-78-number-1/the-constitutional-rights-of-private-governments/ )
