WHEN A PRIVATE ENTITY ACTS LIKE A GOVERNMENT AND enjoys government-like power to censor speech, under what circumstances should it be treated like the government and have its speech restrictions subject to First Amendment scrutiny? In the mid-twentieth century, the Supreme Court set forth the circumstances in which it was appropriate to subject private actors who censor speech to constitutional scrutiny. Under the state action doctrine, the Court explained that sometimes private entities act so much like the government that they should be regarded as such for constitutional purposes. However, consistent with the negative conception of the First Amendment, beginning in the 1970s the Court declined to treat powerful private speech regulators as state actors for First Amendment purposes. Subsequent courts have declined to subject private Internet speech restrictions—such as those imposed by Comcast or Google—to meaningful scrutiny under the First Amendment. In this chapter, I explore the Court's recent, ill-advised refusal to consider powerful private actors as state actors for First Amendment purposes, both in real space and then in cyberspace.
The mid-twentieth century cases of Marsh and Logan Valley, discussed in Chapter 3, represent the high-water mark of the Supreme Court's treatment of private speech regulators as state actors for First Amendment purposes. Shortly after the Logan Valley decision, in Lloyd v. Tanner,1 the Supreme Court scaled back its protection of free speech against regulation by powerful private actors.
Lloyd involved individuals' efforts to peacefully distribute leaflets in a large shopping mall to protest the Vietnam War, less than six months after the