NetChoice, the Supreme Court, and the State Action Doctrine
George Orwell’s “Nineteen Eighty-Four” is frequently invoked when political actors use language to obfuscate what they are doing. Ambiguity in language can allow both sides to appeal to the same words, like “the First Amendment” or “freedom of speech.” In a sense, the arguments over online speech currently before the U.S. Supreme Court really amount to a debate about whether private actors can “censor” in the same sense as the government.
In the oral arguments in this week’s NetChoice cases, several questions from Justices Clarence Thomas and Samuel Alito suggested that they believed social-media companies engaged in “censorship,” conflating the right of private actors to set rules for their property with government oppression. This is an abuse of language, and completely inconsistent with Supreme Court precedent that differentiates between state and private action.