Spring 2022 Symposium

Introduction

The American Revolution was more than merely a transformation of the legal system but also an intentionally driven cultural shift in the conception of what a government ought to be and do. At the bedrock of this movement was the notion of a Republican Mother who was to raise “sons prepared to sacrifice themselves to the good of the polis”1. In the Revolutionary Era, this meant, among other things, pushing rights beyond a “parchment barrier”2, which Constitution Framer James Madison feared they would remain, and into an elevated place in the consciousness of the American public. It is in line with this development that the Incorporation Doctrine would eventually see the Constitution be applied nearly in its entirety as restrictions against actions of the States.3 With the rights seemingly so omnipotent, it is natural that a majority of Americans would support the First Amendment being applied to social media as well.4 These lay citizens are (likely) unknowingly invoking the principle of declaring a private entity a state actor. By looking into the precedent on the elevation of omnipresent, public serving, and private entities – specifically railroad companies – to the level of state actors, insight can be gained into the validity and strength of such an argument were it to be made in court.

Issue

The overarching issue that this note aims to analyze is the power that the First Amendment has as a matter of existing laws, amendments, and doctrines over the practices of social media companies in regulating and censoring the speech and users on their platform. The answer to this issue being innumerably large and complex, the slice of the answer which will be explored subsequently is to analyze and summarize precedent which concerns the elevation of railroads companies to state actors. The results of the research will then be used as an entry into the conversation of if social media should be elevated to the state actor level. A finding that social media companies are properly understood as state actors is powerful and necessitates that the protections of the First Amendment be applied to the companies. Conversely, a conclusion to the contrary, at its strongest, merely eliminates one possible avenue for seeking the protection of rights in the social media setting. In sum, to what degree does the insight from precedent concerning railroads as state actors agree with a finding that social media companies should be treated the same with all relevant protections?

Analogizing Railroads and Social Media

The use of analogy naturally begs the question of the validity of such a comparison. Without a valid baseline connection, the results of the research into railroads can hardly be considered relevant to the present discussion on social media. While the functions of the industries may appear to be different, the similarity in the presence in people’s lives, the control of their conduct, and their public-serving configuration make the comparison both a valid and deeply relevant one.

Defining social media seems itself a monolithic task due to its various forms and diverse audiences. To simplify the task, I consider only the social media giants such as Facebook and Twitter. Both these companies are privately owned.5,6 Users are themselves separate from the corporate entities that host the platform, and their publications are generally considered their own.7 The posts of the users are a combination of pictures, videos, and words used to express a wide variety of thoughts on a range of topics. More relevantly, the posts can be public (viewed by anyone) or private (viewed by only certain allowed groups), and in either “privacy setting,” the number of viewers can range from one person to many millions.8 At the societal level, social media is becoming increasingly omnipresent. In the 2020 U.S. Presidential Election, for instance, there were approximately one hundred and fifty million tweets covering the topic9, and as a whole, approximately 69% of all adult Americans have a Facebook.10 While social media did not create the concept of a public speaking forum, nor did it entirely privatize it, the businesses in the space have radically transformed the way we think about speech and communication in the present day.

Railroads are perhaps easier to define, but they are no less complex. In the simplest definition, railroad companies are private entities that run part of the railroad process, including – the operation of trains, creation, and maintenance of the tracks, organization of parcels and passengers, and more. In the late 19th century, the railroads covered over thirty thousand miles. These companies were, in many ways, the very first large corporations. Under the employment of these organizations were thousands of people with contemporary valuations in the millions.11 Railroad use numbers in the ten to twenty billion in passenger kilometers in America alone.12 This is all to say that the railroad companies are similarly large and omnipresent on social media platforms. One salient feature which makes the analogy a strong one is the relation between the customer and supplier. In railroads, as in social media, the supplier is offering merely the platform on which the consumers exist. In other words, in railroad use, the passenger is paying for the service of either themselves or their property – in the case of packages – being on the train and transported. The actions of the people on the train or the contents of the package are not construed as the actions or property of the railroad company.

While seemingly very different, both railroads and social media can exist under one definition: entities which provide a quasi-public space in which private actors exist. Due to this shared and specific definition, the analogy between railroads and social media seems well supported, and it begs the question of if a legal similarity exists and supports the application of railroad precedent to social media organizations with respect to its designation as a state actor.

State Actor Tests

An entity may find itself to be considered a state actor by virtue of four tests – public function, state compulsion, nexus, and joint action.13 Whether these tests are simply multiple arrangements of one singular test is uncertain14 and is beyond the scope of this note. Further, considering the Supreme Court’s decision that “[o]nly by sifting facts and weighing circumstances can the nonobvious involvement of the State in private conduct be attributed its true significance”15 it appears to be the case that resolving the conflict is not necessarily relevant to the issue at hand as each case would be reviewed individually.

The public function test broadly states that when “facilities are built and operated primarily to benefit the public and since their operation is essentially a public function, it is subject to state regulation.”16 In a specific case on discrimination in voting laws, the Supreme Court decided that the “vital requirement is State responsibility -- that somewhere, somehow, to some extent, there be an infusion of conduct by officials, panoplied with State power, into any scheme” to abridge the rights of citizens in order for a private actor to be regulated as a state would.17 The test leaves much unspecified. The general notion, however, is that when a private entity takes part in a public function with powers typically considered those of the state, they are at risk of forgoing some rights traditionally given to private parties.

The state compulsion test concerns cases in which private entities are simply acting to the will of the state. In other words, when it is “the State that has commanded the result by its law”18 then the actions will not be considered to have the same liberties as that of a traditionally private actor.

The nexus test places emphasis on the financial relationship between the private agent and the state. In one case, the Court ruled that in “a single building, erected and maintained with public funds by an agency of the State to serve a public purpose”19 constituted a relationship that made the private group a state actor, with all actions being state actions. Although the verbiage of the case is replete with potentially intersecting references to “public purpose,” it appears to be the intent of the Court in Burton to look at the practical public good, a portion of profits of the private organization going to the relevant state beyond taxes, instead of a qualitative overlap between the services of the private actor and the work of a state. The nexus test looks at the financial responsibility that a private organization has entered into with the state.

Finally, the joint action test returns to the qualitative comparison of an action done by a private actor and those traditionally done by the state. The test minimizes “the distinctions between "permission" and "compulsion" on the one hand, and "exclusive" and "nonexclusive," on the other, [as none are] determinative factors in the state-action analysis.”20 In reference to permission and compulsion, the Court considers a broader reading from the compulsion tests may be necessary to properly catch all actions which should be properly drawn to be that of the state. In other words, this expansion enables the Court to pierce through any shrewd legislation which intends a result by means of allowing an action. Further, the power exercised by the private entity need not solely be that of the state, as with elections, but also those which are “nonexclusive” to the state. Although this test was formulated in a dissent, this test serves in many ways as a broader catch-all should the Court describe something as state actions which may not properly fall under the other, more narrowly drawn, tests.

Railroad Companies as State Actors

Through research on case law concerning the categorization of railroads as state actors, it appears that two categories can be established: pre- and post-Rail Passenger Service Act of 1970 (RSPA). In the RSPA, Congress established the National Railroad Passenger Corp (Amtrak) as a private entity to take the burden of running and operating railroad passenger services. Not only is this a crucial piece of legislation which radically changes the railroad industry, but there is also a topic matter switch in the cases brought before the courts. The pre-RSPA era deals heavily with civil rights and race-related violations of the Fourteenth Amendment. Alternatively, after RSPA there seems to be a shift of focus to labor relations, union powers, and free speech issues. Through both of these eras, a through-line is the courts’ focus on the concrete as opposed to the abstract – the legislatures’ explicit claiming of an industry, their role in entity formation, the compliance to laws by private actors, and the enforcement of private rules by state actors as opposed to any general notion of a private entity acting in the public space as would be seen with a loose reading of the public function test.

The post-RSPA era can be adequately covered through one case considering free speech and railroads in which the Court unequivocally says that the passenger railroad industry is a state actor. In Lebron v. Nat'l R.R. Passenger Corp., 513 U.S. 374, 386, 115 S. Ct. 961, 968 (1995), Amtrak prevented the posting of a political sign on a billboard connected to an Amtrak station. Lebron sued Amtrak seeking a positive injunction to require the sign to go up under the principle that Amtrak violated his freedom of speech. As part of the suit, Lebron put forth that Amtrak should be properly considered to be a state actor and thus beholden to the associated First Amendment restrictions. The Court “place[d] Amtrak within its proper context in the long history of corporations created and participated in by the United States for the achievement of governmental objectives,”21 which meant that the Court “conclude[d] that it is an agency or instrumentality of the United States for the purpose of individual rights guaranteed against the Government by the Constitution.”22 In reaching this conclusion, the Court looks primarily at the Rail Passenger Service Act of 1970 (RPSA), § 101, 84 Stat. 1328 which establishes Amtrak as a private corporation. However, this designation is in name alone. RPSA not only creates Amtrak, but also dictates the power structure and goals while retaining the entirety of the shares. Central to illustrating the role the government plays in Amtrak is that the President directly appoints or appoints with approval of the Senate all nine of the board members.23 As for the free speech issue, the Court remanded the case to the appeals court with the decision that Amtrak is part of the government for such matters. As a whole, this case shows the pervasive effect of RPSA in both transforming the railroad industry and its passenger service designation as a state actor.

Looking back into the pre-RPSA, a similar fact structure and attitude can be seen by the Court when it considered workshop agreements and unions in the 1950s. Railway Employees' Dep't v. Hanson, 351 U.S. 225, considers the relation of § 2 of the Railway Labor Act, as amended, 64 Stat. 1238, 45 U. S. C. § 152, which allows railroad companies to require union shop agreements, and Nebraska constitution’s “right to work” provision. In the suit, employees of the Union Pacific Labor, Co. brought charges that the company and associated labor organizations violated First and Fifth Amendment protections by requiring a union shop agreement. In the analysis by the Court, it does not ever explicitly answer or aim to answer if the railroad becomes a state actor by virtue of the Railway Labor Act, however, there is much discussion over the qualities central to such a discussion. For instance, the Court intersects with the language of the joint action test when it writes that although “Congress has not compelled nor required carriers and employees to enter into union shop agreements,”24 it is still the case that “the federal statute is the source of the power and authority by which any private rights are lost or sacrificed.”25 This discussion is then used to validate why the Court is considering if the Railway Labor Act is in violation of the Constitution. It is all but said that the creation of workshop agreements is a state action with all its ramifications. Similar to the post-RPSA era, the Court is not concerned with the public function test – the public utility and nature of railroads – and are merely concerned with direct, explicit legislative involvement.

In the pre-RPSA era’s case on civil rights, a court did consider the public function test, although still with an emphasis on the direct legislative relation. In Baldwin v. Morgan, 287 F.2d 750, the fifth circuit court of appeals examines if a specific formulation of racial segregation in train waiting rooms was permissible under the Constitution. In it, the court interpreted Supreme Court decisions to produce two areas of concern in establishing the state actor designation. First, “[w]hen in the execution of that public function [of public necessity or convenience] it is the instrument by which state policy is to be, and is, effectuated, an activity which might otherwise be deemed private may become state action within the Fourteenth Amendment.”26 This is reminiscent of the public function test in that the activity of the private entity may make it more liable to be considered a state actor. However, it brings attention to the notion that the public function test also considers the private entity’s substitution for an act which would otherwise be carried out by the state. This is left in the dictum and thus given little power. Second, and where the court more heavily relied in making its decision, is that if a state may not do something, it “may not do so by direct action or through the medium of others who are under State compulsion to do so.”27 This was achieved in this case as a “statute infuse[d] the Commission with power to prescribe that carriers shall maintain separate waiting rooms and this power has been effectuated by the issuance of regulations that leave nothing to the imagination.”28 To exaggerate clearly stated, the court here relies on notions of the compulsion test in reaching determining that the railroad company can be rightly considered a state actor in this context. While this case does continue the trend of looking at explicit legislative actions through the compulsion test, it does open up some possibilities in the public function test.

Applying Railroad Precedent to Social Media

The fantasy of every anti-social media censorship advocate would be a strong preference and support for the public function test. As discussed previously, as organizations in size and service, railroads and social media companies are inherently very similar. Railroad litigation seems like it ought to be ripe with instances in which the private actions of the companies infringed on what would, but for being found to be a purely private entity, be protected rights. Precedent on the relation of railroads’ public service and an increased duty to protect rights by way of being declared state actors is what one may expect to find. However, that does not appear to be the case.

Those who hoped to be able to use a public function test, which is where the similarities between social media and railroad companies may exist, will find underwhelming clarity in the available precedent. While none of the examined court cases rejected the argument, the courts seemed disinterested in considering it when making decisions on state actors. Baldwin v. Morgan, 287 F.2d 750, 754-55 (5th Cir. 1961) was the only example found of the public function test being considered in conjunction with railroads. However, the discussion was detached from the main structure of the opinion seemed to be merely dictum. Weak precedent already, its location in the fifth circuit makes it merely persuasive in most courts and, perhaps most importantly, the Supreme Court. The precedent on the public function test in railroads simply does not yield strong support to an argument for social media as a state actor.

What the precedent does suggest is that the most fortuitous route for anti-social media censorship advocates may be found in legislation, not litigation. Of the cases mentioned, all placed primary focus and importance on specific legislation and acts of a state as would be supported by the state compulsion test or the joint action test. The shared factor is that the legislatures very clearly charged the private entity with the effectuation of a state action. In the example of Amtrak, the entire private entity was purely the form while the state retained complete control. In others, the veil of acts which regulated the actions of railroad companies, as opposed to directly to the affected citizens, was pierced, and the state was still held liable. Not merely the success of these arguments, but so to their prevalence, suggests that the protections for citizens that come from a designation of state actor will be best found through legislating it to be so.

In summary, the similarities between railroads and social media companies concern predominantly with their public-facing service to society – as opposed to power allotment or legal classifications, and do not lend support to the claim that social media platforms should be considered state actors. Although to the layperson there may appear to be a strong likelihood of such a finding, the public function test is simply not widely used in or supported by cases concerning railroads. What the precedent does suggest is that the route to a private entity becoming a state actor rests primarily on explicit legislation which provides funding, delegates power, or even completely creates such an organization. In building a cohesive argument to assert or defend a position, it is – as in the hard sciences – equally necessary to investigate and eliminate seductive, fruitless options as it is to build the successful one. This note demonstrates how one such route, among the many multitudes, for understanding how the Supreme Court may or ought to act when considering a First Amendment and social media issue would come to pass.

References

[1] Linda Kerber, The Republican Mother: Woman and the Enlightenment – An American Perspective, 28 American Quarterly 187, 188 (1976)

[2] James Madison, Untitled, 5 The Writings 1, 15 (1905)

[3] Legal Information Institute – Incorporation Doctrine, https://www.law.cornell.edu/wex/incorporation_doctrine (last visited April 28, 2022)

[4] Cato Institute - New Poll: 75% Don’t Trust Social Media to Make Fair Content Moderation Decisions, 60% Want More Control over Posts They See, https://www.cato.org/blog/new-poll-75-dont-trust-social-media-make-fair-content-moderation-decisions-60-want-more

[5] Insider - Mark Zuckerberg's net worth has grown over $25 billion in the last year alone. Here's how the 37-year-old Facebook founder makes and spends his $129 billion fortune., https://www.businessinsider.com/facebook-mark-zuckerberg-net-worth-priscilla-chan-2017-10

[6] Barron’s - Elon Musk Says Twitter’s Board Owns Almost No Stock. How It Compares to Tesla and Others, https://www.barrons.com/articles/how-twitter-board-stock-ownership-compares-musk-tesla-51650304124

[7] 47 U.S. Code § 230

[8] Chadwick Boseman (@chadwickboseman), Twitter (Aug. 28, 2020), https://twitter.com/chadwickboseman/status/1299530165463199747

[9] Twitter labeled 300,000 US election tweets — around 0.2%, https://techcrunch.com/2020/11/12/twitter-labeled-300000-us-election-tweets-around-0-2/

[10] Pew Research Center - 10 facts about Americans and Facebook, https://www.pewresearch.org/fact-tank/2021/06/01/facts-about-americans-and-facebook/

[11] Railroads and the Industrial Revolution, https://www.american-rails.com/1850s.html (last visited April 28, 2022)

[12] Statista - Rail passenger traffic in America from 2006 to 2019 (in billion passenger kilometers)*, https://www.statista.com/statistics/261169/rail-passenger-activity-in-america/

[13] Lugar v. Edmondson Oil Co., 457 U.S. 922, 939 (1982) (listing the various state actor tests and their key precedent)

[14] Id. at 939 (discussing the relation of the tests)

[15] Burton v. Wilmington Parking Auth., 365 U.S. 715, 722, 81 S. Ct. 856, 860 (1961)

[16] Marsh v. Alabama, 326 U.S. 501, 506, 66 S. Ct. 276, 278 (1946)

[17] Terry v. Adams, 345 U.S. 461, 473, 73 S. Ct. 809, 815 (1953)

[18] Adickes v. S. H. Kress & Co., 398 U.S. 144, 171, 90 S. Ct. 1598, 1615 (1970)

[19] Burton v. Wilmington Parking Auth., 365 U.S. 715, 724-25, 81 S. Ct. 856, 861 (1961) 

[20] Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 170, 98 S. Ct. 1729, 1741 (1978)

[21] Lebron v. Nat'l R.R. Passenger Corp., 513 U.S. 374, 386, 115 S. Ct. 961, 968 (1995)

[22] Id. at 972 (1995)

[23] Id. at 967 (1995)

[24] Ry. Employees' Dep't v. Hanson, 351 U.S. 225, 231, 76 S. Ct. 714, 718 (1956)

[25] Id. at 718 (1956)

[26] Baldwin v. Morgan, 287 F.2d 750, 754-55 (5th Cir. 1961)

[27] Id. at 756 (5th Cir. 1961)

[28] Id. at 755 (5th Cir. 1961)