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Twitter had its staff going into classified briefings, and was (uh, charitably) acting to counter international security threats. I think this is pretty close to the "traditional exclusive prerogative of the state".
How much do you think Twitter should be liable for, just as a ballpark estimate?
Probably not much; 1983 suits tend to be messy in the best of circumstances where there is clearly defined harm, and almost all of the actions here involved either de minimis damages and/or very indirect harm of the sort of that civil courts do not generally rate very highly. A saner world would probably have some class action-esque lawsuit that'd probably pay within an order of magnitude of 10 USD per improperly or unlawfully deplatformed user, but modern class actions are basically only useful for paying lawyers.
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If you look at the relevant case law, you will see that it is not even close. Edit: "This is considered 'an arduous standard to satisfy[.]'" Chilcoat v. Odell, 517 F.Supp.3d 1299 (2021). Note that it is exercising power that is required, not attending briefings or helping law enforcement. Pvt parties cooperate with LEall the time. I attended a continuing ed training on this precise issue literally two days ago. The public function doctrine is very narrow. I would encourage you to read the CRS link in my original post; that is where your best arguments can be found, because it is all about when cooperation crosses the line into state action.
If you're making the legal realist argument that the courts won't recognize it as such, and don't want to open this can of worms, than I totally agree with you; perhaps even the Beautiful Struggle would have fallen had the Baltimore office not conceded that point. But it's very hard to see a principled distinction in the facts, even for the central cases of the doctrine.
That's especially true given the often-square-peg-round-hole nature of the doctrine: Terry v. Adams was clearly trying to find any way to break private blocks against African-American-preferred candidates, but the Jaybird Association had no state-like powers to exercise, merely outside influence on a different private organization that in turn had outsized influence on facially-neutral rules that favored it. The company town in Marsh v. Alabama did not perform arrests or convictions by its own staff; it merely reported a private sidewalk trespasser to police, a power later courts have allowed private businesses to use even against public sidewalk trespassers in some conditions. The park in Evans v. Newton had no powers at all; it 'merely' received public largess and benefits in its role as a transparent cutout for the discriminatory interests of the state. The difference is that these people were all assholes, in ways that judges care about, but that's not an especially compelling story.But even beyond that, it's not that Twitter was cooperating with law enforcement. Nor would my objection apply if Twitter were just a random forum for public speech, as specifically excluded by Hudson (though see Marsh). It's not even (just) that Twitter was operating at FBI beck and call. It's that Twitter was taking a role that the federal government has long precluded private actors from engaging with: if you or I start to fuck with classified documents at best the FBI starts to look for leakers if it doesn't just start to subpoena us; the role of the federal government as the authority for common defense dates back to at least the era of privateers and the FBI can and does regularly investigate people who try to solo it. These are not 'traditional exercises of power' limited to the state, but neither in turn was the trespassing charge in Marsh nor the park management in Evans.((And, to be fair, my objections are not limited to the case: the public function test regarding prisons is a clusterfuck and anyone paying attention knows why.))
Yes, if I had to argue it in front of SCOTUS, I'd probably take a better-explored and not-explicitly-disclaimed prong -- though it's worth noting how defunct the modern 'entwinement' tests of the state actor doctrine are, in turn, outside of very limited racial or religious discrimination contexts (bit of an overlap with Evans and Marsh there, isn't it), and how much of a mess the question of whether the joint action doctrine even exists is. And despite those limitations, I think the joint action doctrine (while barely described in the CRS report) would still probably be more likely to succeed.But as a moral argument, and especially one from a libertarian perspective, this is a damning behavior from the public function one. Any other read would permit any private actor moving within the state's role and at the state's direction to cheerily violate rights coincident with its state-given power, even when at state direction.EDIT: I don't retract the above, but I do think it's a distraction. If the broader state action doctrine not only covers the Baltimore case -- where the private company did not have the ability to bring charges as in Chilcoat's hypothetical, nor get pay and specific command as in this case -- but does so with such clarity that no defense is plausible, the exact terms and reasons that separate it from matter, but even if their clearly post-hoc manner happened to coincidentally support the modern abuses of power that would not make them good.
No, I am not making that argument.
Then, quite honestly, you don't understand the doctrine. As evidenced by this argument: "It's that Twitter was taking a role that the federal government has long precluded private actors from engaging with: if you or I start to fuck with classified documents at best the FBI starts to look for leakers if it doesn't just start to subpoena us." Leaving aside that you are conflating unauthorized disclosure of classified material with authorized disclosure, which happens for more trivial reasons than those at issue here -- as noted, the public function doctrine is "'an arduous standard to satisfy'" and looking at documents doesn't cut it. In Terry v. Adams a private entity was running elections; in Marsh, a private company was the government, since it was a company town. And, it is simply incorrect to say that "[t]company town in Marsh v. Alabama did not perform arrests or convictions by its own staff; it merely reported a private sidewalk trespasser to police"; in fact, "A deputy of the Mobile County Sheriff, paid by the company, serves as the town's policeman," 526 US at 502, and "[w]hen [appellant] was asked to leave the sidewalk and Chickasaw, she declined. The deputy sheriff arrested her," 526 US at 503.
As for Evans, these are the facts:
As I said before, the relationship between Twitter and the FBI might satisfy other bases for finding state action, but the claim that it meets the "public function" test is frivolous, and hence so, too, is the claim that Leaders of a Beautiful Struggle v. BPD is relevant, let alone that it shows that the FBI acted illegally.
I've got some quibbles with your summaries, but as in above edit, I think they're distractions compared to the standard itself being nonsensical. That payment is dispositive one direction and never the others (and indeed, payment and command is not dispositive even for the entanglement and joint action tests!) makes a mockery of the system, as does the bit where you can not name the "exercising power" that was so clear in Beautiful Struggle that no one could even contest it.
Now you are making a completely different claim than you originally did. You are now saying that the standard is nonsensical. Maybe it is, but that was not your original claim. Your claim was that Leaders of the Beautiful Struggle shows that "far less direct entanglement has been treated as a violation of rights as a government actor in other environments." Yet, that case was not a "direct entanglement" case, so it does not show that at all.
I am unclear why you think payment should be dispositive for the public function test. The whole focus of the test is on what the private actor is doing. Are they paid to "exercise powers that are traditionally the exclusive prerogative of the state," or not? After all, if the private actor is "exercis[ing] powers that are traditionally the exclusive prerogative of the state," then it is state action even if it doesn’t get paid at all. Eg, if anything, the organization in Terry v Adams spent money to run elections rather than being paid to do so.
As for the "exercising power" that was at issue in Leaders of the Beautiful Struggle, note that I never said that it was correctly decided. Given that the BPD conceded the issue, there aren't a lot of details. But it does seem that the BPD offloaded their criminal surveillance to a private party, which is not remotely the same as cooperating with Twitter re Twitter's existing program re combating disinformation. That's what makes this an entanglement case, not a public function case.
Also, if as you note above, the state action case law is a mess, then that is a powerful rebuttal of people, on here or elsewhere, who claim that what the FBI did was "clearly illegal."
Finally, re your edit, if you think that it is all a distraction, you are missing the point. I have already said repeatedly that there might, or might not, have been state action under the proper test, and whether the actions of the FBI are "good" or not is a completely different issue (and one which, btw, is completely inappropriate for this site, since most who post here seem not to be particularly interested in such abstract principles, but rather only is what can plausibly (or often implausibly) spun to show that their outgroup is evil, or that their ingroup is being victimized somehow.
"Direct entanglement" is, as far as I know, only a First Amendment standard in the context of religion, as contrasted with the
threefourmumble mumble state actor doctrine tests. My point was not to use it as a legal term of art, but to use it in the colloquial sense.That's the neat thing! I don't! But it's interesting that the deputy sheriff's pay in Marsh v. Alabama vastly outweighs the (tbf, probably merely paper) org chart role, in that one case, in your mind.
((yes, the dicta makes clear that Marsh's public function wasn't even using the same theory as modern ones so much as being the fig leaf that later versions claimed their history from :
(citations omitted) This has almost nothing to do with the modern 'traditionally exclusive prerogative of the state' standard, and often is in direct contradiction with it, so yada yada. But if you think the company funding of the deputy proves that the corporation was doing the arrest, that seems like it would be the deeper ethical and philosophical question.))
This is the sort of thing that allows the courts to jump up and down in levels of specificity and connection to achieve the goal desired.
I didn't say I thought that it was or wasn't, or even particularly cared about that specific case. If you've got a more recent high-profile case where the courts were willing to find any of the state actor doctrine tests, I can go with that instead.
But I think the contrast is meaningful, and the fallback of an en banc at the Fourth Circuit just being incompetently argued or wrongly decided doesn't actually defend the standard or the norm. Not least of all given that we have in very recent memory a very incompetent federal administration that could have just as easily decided to absolutely crash a few dozen programs, and now the norm to defend the law is gone and has been gone for decades, he could even do it intentionally.
Didn't you just quote Chilcoat to me, where the dicta includes the phrase "While Chilcoat concedes that performing an arrest, investigating crimes, and interrogating witnesses are not functions exclusively reserved to the State..."? What level of specificity excludes the many other programs where a police department offloads criminal surveillance to a private party (including at Twitter!), nor the long history of private investigation.
More broadly, what principled distinction holds this level of reframing the argument from applying to Twitter? Not just in the trivial sense that Twitter changed their 'existing' programs and made new programs for the FBI, but that the FBI was pretty clearly offloading part of their (long-held-to-be-federal-jurisdiction!) anti-election-manipulation efforts onto Twitter.
That's fair, with perhaps some caveats for those people who separate "illegal" as a descriptive and "illegal" as a normative position.
And I've gone further to point out that every alternative test is likewise a squishy mess that overlooks the realities of government encouragement and by their strict text would allow even the most aggressive violations of rights at the direction of state power with the correct weaseling, and on top of that, no such test will ever occur thanks to the near-impossibility of bringing meaningful suit.
... I'm going to try to be polite as I can about this, but I think this sort of aside is a better demonstration of its proclaimed evils than the actual behavior of your political opponents that you're trying to vaguely reference.
ffs, "completely inappropriate"?
You said the exact opposite earlier in the quote included in what you purport to be responding to: "far less direct entanglement has been treated as a violation of rights as a government actor in other environments." If you think that entanglement is not a standard re state action, why did you mention it?
"[T]he instances where private parties have been found to be state actors fall into 'two broad categories: the "public function exception," and the "entanglement exception."' Osler ex rel. Osler v. Huron Valley Ambulance Inc., 671 F.Supp.2d 938, 942 (E.D. Mich. 2009) (citing Chemerinsky, Constitutional Law at 517 (3d ed. 2009)).'" Cahoo v. SAS Institute Inc., 322 F. Supp. 3d 772, 792 (ED Michigan 2018). Honestly, if you truly did not know that, despite it being the dominant grounds for finding state action, don't you think you should be a little less sure of your claim that what the FBI and Twitter did, in fact, = state action?
This seems to be an argument that Leaders of the Beautiful Struggle was wrongly decided, which it might well be -- as I said, I never said otherwise. But if it was wrongly decided, why did you rely on it in the first place? And, if it was wrongly decided, how do you figure that Twitter is a state action.
More broadly, the language from Chilcoat just emphasizes the extent to which the public function test is extremely narrow, which demonstrates even more strongly that it does not apply to Twitter. But, once again, other tests might well apply.
Whether it was "federal jurisdiction" is irrelevant. What is relevant is whether it is an exclusive government function. You just quoted Chilcoat re performing an arrest not being a public function. That is because: "Although all of these powers have been traditionally exercised by the sovereign via the police, none has been exclusively reserved to the police. See, e.g., 725 ILCS 5/107-3 (providing for citizens' arrests); Spencer, 864 F.2d at 1380 (noting that powers of arrest and self-defense are not exclusively governmental functions); Carey v. Continental Airlines, Inc., 823 F.2d 1402, 1404 (10th Cir. 1987) (holding citizen's arrest does not constitute state action)." Wade v. Byles, 83 F. 3d 902, 906 (7th Cir. 1996). Social media companies, as well as other private actors, are free to combat election manipulation, and have long done so of their own accord. Again, you are grossly overstating the scope of public function doctrine: "Despite the rulings in Terry and Marsh, the public function doctrine is very narrow and has very rarely been applied to find state action[.]" Niles, John Dorsett, Lauren E. Tribble, and Jennifer N. Wimsatt. "Making Sense of State Action." Santa Clara L. Rev. 51 (2011): 885, 906; Rodriguez, Audriana. "Will the Players Union Take an L or Take a Knee?: The First Amendment Legal Issues Surrounding the NFL National Anthem Controversy." FIU L. Rev. 14 (2020): 397, 400 ["This test is extremely narrow"]
And I have gone out of my way to make clear that I don't disagree with you, but, as I said before, if the case law is indeed a squishy mess, then it is absurd to say that what the FBI did was clearly illegal.
Sorry I really meant "misplaced"
And that reference to my supposed political opponents illustrates my point. I can assure you, I have had similar conversations with people on the left, who completely misconstrue legal decisions when it is convenient to do so, whether it be Citizens United or Bush v Gore or Masterpiece Cakeshop or you name it. Intellectual dishonesty and a lack of concern for any sort of outcome-independent principle is hardly the exclusive province of those who frequent this site.
Because I think it's the best way to describe an environment where the FBI was paying Twitter to do something, telling them to do something, highly integrated with their employees, and talking about the importance of the thing as a matter of national security while providing classified briefings. And, similarly:
Because I think it's important to notice when things happen to get wrongly decided in a very coincidental way.
((Tbf, I think there are reasonable standards where the behavior in Beautiful Struggle would count as state action. I just can't see a principled one to avoid including the behavior for Twitter here.))
... I notice that this Dominant Legal Standard is not mentioned in the CRS report you linked, or in common literature reviews, or among any of the higher court cases I can easily find (or, tbf, wikipedia's summary of the state actor doctrine). I confess to not doing a LexusNexus search for every district court or law book paraphrase ever.
((Looking through the citations, did Chemerinsky use it as a byword for the older "entwined" standard actually used in the SCOTUS or higher appeals cases? Fair, that's an awful word choice, but come on.))
Again, if your point is that there's some nitpicking Frenchian room for lawyers to defend the behavior, we can scroll all the way back up to my first post where, right after the link, I said :
The strict legal question can be interesting! And if you want to find randos and tell them no one at the FBI is going to be arrested, feel free. But I don't think it's reasonable to jump to "a big deal" meaning something other than FBI agents being arrested.
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