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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.
Dude, the CRS report talks about coercion, which if you read the cited decision is evidence of entanglement though not conclusive evidence. See Texas Law Review article here ["One exception is the public function doctrine, which holds that when a private entity is engaged in a public function, it can be treated as a “state actor” and thus subject to the requirements of the Constitution.5 Another exception is the “entanglement” or “nexus” doctrine, in which a private entity that is overly entangled,6 or “entwined,”7 with the government can be subject to the requirements of the Constitution. . . .
And the CRS report says:
That bolded part is a reference to entanglement. But, again, you knew that, because that is what you claimed the Leaders case stands for. I feel like at this point you are just arguing for the sake of arguing.
Yes, things that are evidence of bad behaviors are a lot like things that are class of bad behaviors. But that is such a wide category as to cover almost any term I could use to describe the behavior. I can understand some confusion if your recent CLE was hammering the new Chemerinsky terminology, but short of requiring me to stick 'this is a normative statement and not a descriptive one' at the front of every post I'm not sure how much clearer I could get.
Now is "entanglement" as a legal term of art supposed to be pointing to the "coercion" test instead of the "public function" one that Leaders used, or can we notice that I'm pointing to the differing results for the broader state actor doctrine, despite worse behavior here, or the near-arbitrary pose of specific cases making up the doctrine?
And I feel like you're burst into the topic aggressively misreading whatever terms you can find from the most arbitrary of references, rather than notice the several posts in a row specifically disclaiming the very argument that you're trying to thrust at me, while also complaining about people who are only interested in tools "to show that their outgroup is evil, or that their ingroup is being victimized somehow."
EDIT: Seriously, if you wanted to have a conversation about what the current state actor doctrine is, where its limitations leave serious vulnerabilities, or what a more appropriate state actor doctrine would be, I'd enjoy those specific conversations individually! There are some fun and delightful thought experiments about exactly how far a state could abuse the existing doctrine.
But this constant jump where any minimal recognition of the messy ad-hoc nature of the doctrine is a terrible admission that must absolve the FBI from charges that I'm not bringing, while simultaneously my criticisms of the doctrine are met with repetition of the facts I've just described is a muddled mix that makes discussion on any one of these perspectives less than useful.
Dude, I made a very simple point: You said: "far less direct entanglement has been treated as a violation of rights as a government actor in other environments," and I simply pointed out that the case you cited for that argument is actually authority for a different theory of state action, i.e., public function, not entanglement. I even included a link to the CRS report, which discusses the correct theory. You are the one who wants to go on and on about the nature of the state action doctrine, etc, etc, etc.
And why would I possibly want to have that conversation with you, when you make statements like "can we notice that I'm pointing to the differing results for the broader state actor doctrine, despite worse behavior," when whether something is "worse" is not a relevant analytical category? That is the type of argument that laymen or dilettantes make about legal issues. Why would I want to waste my time having a discussion with someone like that?
You're having this discussion instead? So I guess there's a values-signals question.
More broadly, though, because the law can not be the source of ethics, nor can explaining it at sufficient length but without a strong and consistent foundation change anyone's minds regarding just action. "Worse" may be the domain of dilettantes on legal issues (and, I'll admit, under-specified and vague for ethical or norms-based ones), but ignoring problems like it doesn't just elevate everyone else to an ivory tower of endless continuing legal education; it undermines trust in an important institution.
Yes, the question of whether what the FBI / Twitter did was normatively wrong is a different question than whether it was legal. Duh. But your original statement that I commented on was about the legality of their actions, not about the ethics of their actions. And your claim that your are "pointing to the differing results for the broader state actor doctrine, despite worse behavior here" was a claim about the law, not about ethics; it was a claim that whether state action exists hinges on the "wrongness" of the action. That is a claim about a legal question -- i.e, what factors are relevant to the determination of whether state action exists.
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