Your Periodic Reminder That Facebook Isn’t a State Actor–Williby v. Zuckerberg
This is my fourth blog post on a social media “censorship”/deplatforming ruling in 11 days (see also Fyk v. Facebook, Murphy v. Twitter and Brittain v. Twitter). This litigation tsunami is taking place even though these cases have absolutely no legal merit. Can you imagine what the caseload would look like if the cases had a glimmer of hope?
This is a pro se case from an apparently repeat plaintiff, which is typically a breeding ground for legal arguments that lawyers wouldn’t normally try. The plaintiff claimed Facebook violated his First Amendment rights by blocking his posts per its hate speech policy. The court responds plainly:
the First Amendment applies only to governmental abridgements of speech, and not to alleged abridgements by private companies like Facebook…A private entity that provides a forum for speech does not engage in an activity that the government has traditionally and exclusively performed, and so does not qualify as a state actor subject to First Amendment constraints
Cite to Halleck, which I will blog soon. Ideally Halleck will emphatically tidy up the state action issue, though it won’t slow down the seemingly infinite number of attempted pleadarounds to reach the same outcome.
Due to his status as a pro se litigant, we might excuse Williby’s attempt to collapse the state action distinction for social media providers. It’s less excusable when politicians falsely accuse social media providers of “censorship” for political points, when they clearly know better.