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naraburns  nihil supernum  3yr ago (text post)   17429 thread views

Culture War Roundup for the week of December 19, 2022

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That is a very odd citation for your claim, given that the district court said:

A private entity may be held liable under § 1983 when it "has exercised powers that are traditionally the exclusive prerogative of the state." Conner, 42 F.3d at 224 (quoting Blum v. Yaretsky, 457 U.S. 991, 1005, 102 S. Ct. 2777 (1982)).

In this case, Persistent Surveillance System's actions may be attributable to the Baltimore Police Department for purposes of assessing the Plaintiffs' § 1983 claims. The Baltimore Police Department and Persistent Surveillance Systems have entered into a Professional Services Agreement, ratified by the Baltimore City Board of Estimates, to conduct aerial surveillance over Baltimore. As Defendants conceded during the Preliminary Injunction Hearing, Persistent Surveillance Systems would be exercising powers which are traditionally within the exclusive domain of the BPD when undertaking the actions authorized by the Professional Services Agreement.

Leaders of a Beautiful Struggle v. BPD, 456 F.Supp.3d 699, 707-708 (2020) (emphasis added).

Any argument that Twitter was a state actor must be based on a completely different theory.

I don't think there is a particularly severe difference between the Baltimore Professional Services Agreement and the contractual repayments present here, nor between the exclusivity of reading 9-11 reports in the Baltimore case and the access to classified documents in this one, or to the extent such a difference exists, that it favors the FBI here.

EDIT: to be clear, I think they fall under the state actor doctrine, too: it's the too that's an emphasis.

As implied by the CRS report I linked to, whether the FBI involvement renders Twitter a state actor and hence demonstrates that the FBI violated the First Amendment is an open and difficult question. My only point is that the case you linked to is irrelevant, because there is no way that Twitter was "exercis[ing] powers that are traditionally the exclusive prerogative of the state," which is the only reason the BPD was on the hook in that case. Indeed, that case is a very easy one; as noted, the defendants conceded the issue. That is how obvious the case was. It tells us noting about the legal implications of the FBI actions re Twitter.

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".

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.

If you're making the legal realist argument

No, I am not making that argument.

But it's very hard to see a principled distinction in the facts, even for the central cases of the doctrine.

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:

If a testator wanted to leave a school or center for the use of one race only, and in no way implicated the State in the supervision, control, or management of that facility, we assume arguendo that no constitutional difficulty would be encountered.

This park, however, is in a different posture. For years, it was an integral part of the City of Macon's activities. From the pleadings we assume it was swept, manicured, watered, patroled, and maintained by the city as a public facility for whites only, as well as granted tax exemption under Ga.Code Ann. § 92-201. The momentum it acquired as a public facility is certainly not dissipated ipso facto by the appointment of "private" trustees. So far as this record shows, there has been no change in municipal maintenance and concern over this facility. Whether these public characteristics will, in time, be dissipated is wholly conjectural. If the municipality remains entwined in the management or control of the park, it remains subject to the restraints of the Fourteenth Amendment, just as the private utility in Public Utilities Comm'n v. Pollak, 343 U. S. 451, 343 U. S. 462, remained subject to the Fifth Amendment because of the surveillance which federal agencies had over its affairs. We only hold that, where the tradition of municipal control had become firmly established, we cannot take judicial notice that the mere substitution of trustees instantly transferred this park from the public to the private sector.

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.

  1. 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.

  2. 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.

  3. 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.

  4. 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."

  5. 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.

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