When Does Government Act Through Private Actors? Texas Private Attorney General Enforcement Against Abortion Providers & Trump's Suits Against Big Tech

 by Michael C. Dorf

A new Texas law, S.B. 8., forbids abortions after six weeks of pregnancy. It's obviously unconstitutional under existing Supreme Court precedent. Whether the relevant precedents will remain on the books in a year remains to be seen. In the meantime, S.B. 8 is unusual in relying entirely on private enforcement.

S.B. 8 expressly bars public enforcement. It gives to "any person, other than an officer or employee of a state or local governmental entity," the right to bring a lawsuit to enjoin forbidden abortions and to collect a bounty for abortions performed in violation of the law. As Dean Amar and Professor Mazzone explain in a recent Verdict column, the law contains that unusual enforcement mechanism for the obvious purpose of preventing doctors, clinics, and women from bringing lawsuits in federal court to categorically enjoin S.B. 8's enforcement. Instead, doctors or others sued under S.B. 8 will be relegated to raising the constitutional right to abortion as a defense in state court. Such a forum will likely be less sympathetic than even the Trump-packed federal courts. Meanwhile, in such a state court case of the constitutional right arising as a defense, even a sympathetic state court judge (or one simply willing to follow the law as declared by SCOTUS) would not be able to grant the sort of broad relief that a court faced with a class action could.

Dean Amar and Professor Mazzone offer a few potential workarounds, including the possibility of a lawsuit against Texas state judges. And indeed, they note at the end of their column that as they were going to press, just such a suit was filed in federal district court in Austin by various Texas-based abortion providers.

Will that suit succeed? Perhaps. However, as Professors Tribe and Vladeck explain in a NY Times op-ed, there is some precedent to overcome: twenty years ago, the Fifth Circuit held that plaintiffs could not bring suit against Louisiana executive officials to challenge a similarly structured abortion law, because those officials had no role in enforcing it. By contrast, state court judges do play some role in giving effect to S.B. 8. Professors Tribe and Vladeck think that should suffice to distinguish the Texas case, and I agree. However, they, as well as Dean Amar and Professor Mazzone, acknowledge that there is no guarantee.

Meanwhile, I'd like to raise a related point about state action. Some readers might be wondering why there is even a constitutional defense available to a doctor in a case in which a pro-life plaintiff sues the doctor in state court under S.B. 8. After all, the private plaintiff isn't a state actor. True, the judge is, but as a general matter the fact that a judge enforces a private right of action doesn't suffice to create state action. Addressing that objection will shed further light on what's wrong with Donald Trump's lawsuits alleging that Facebook, Twitter, and YouTube are state actors for First Amendment purposes.

Let's begin with a hypothetical losing lawsuit. Suppose Peter sues his neighbor Deirdre, alleging that Deirdre invited everyone else on the block to her pool party but excluded Peter because of his outspoken opposition to a petition Deirdre had organized to have a traffic light placed at an intersection Deirdre and the other area residents thought dangerous. If a government official excluded a constituent from some benefit based on the constituent's speech, that would be a First Amendment violation, but the Constitution doesn't apply to private actors, so Deirdre's failure to invite Peter based on his expression of a political viewpoint does not implicate his constitutional rights. If Peter sues to enjoin Deirdre from keeping him out of the party, alleging only a free speech violation, Peter will lose.

We get the same result if we imagine the same dispute in reverse. Suppose Peter crashes the party and Deirdre tells him to leave because he is trespassing. He refuses and causes a scene. The next day Deirdre sues Peter for simple trespass. If Peter raises the First Amendment as a defense, he loses--even though Deirdre is invoking the power of the state (in the form of the judge) to obtain an order to Peter that he pay damages.

Some readers at this point might be thinking: what about Shelley v. Kraemer, the 1948 case in which SCOTUS held that a private racially restrictive covenant was unenforceable? Professors Tribe and Vladeck cite Shelley as useful precedent for challenging the actual Texas abortion law in federal court. It might well be that, but now one might wonder how broadly it applies. When does the participation of state court judges in the application of law to private disputes turn what would otherwise not be state action capable of violating the Constitution into such state action?

There's a small cottage industry of law review articles arguing either that Shelley is different from the garden-variety private dispute or that, if not, Shelley is wrongly decided, albeit in a good cause. There are a few articles that argue that Shelley is right and that there's state action everywhere, but these are pretty clearly arguments for changing the dominant view, under which resort to the courts in ordinary private disputes do not convert otherwise private actors into state actors. Whether or not Shelley will work as a basis for the federal court suit against the Texas judges, let's accept the conventional wisdom that Shelley is unavailable in most cases. As a general matter, private resort to the courts does not suffice to trigger constitutional protections.

However, even though the private litigants involved in most ordinary litigation are not state actors, that doesn't mean that courts get to apply unconstitutional rules of law in their cases. If a plaintiff in a private dispute relies on a statute that exceeds the power of Congress or deploys a racial classification or is viewpoint-based, the defendant is entitled to defend on the ground that the rule of law invoked is unconstitutional and thus inapplicable. So there's no difficulty at all in saying that defendant doctors, clinics, or others sued under S.B. 8 are entitled to raise the right of abortion as a shield. In so doing, they're simply saying that S.B. 8 is unconstitutional. The state actors who violated the Constitution are the Texas legislators and Governor who enacted S.B. 8. The potentially tricky question in Texas is not whether there's unconstitutional state action; it's whether the challenge to such state action will be available in federal court or relegated to a defense in state court.

Now think about Trump's lawsuits against the Internet companies (which I discussed here). He also says that a legislature acted unconstitutionally in giving a power to private actors. Among other things, he argues that Section 230 of the Communications Act unconstitutionally authorizes Facebook, Twitter, and YouTube to censor him. So he's charging Congress with a constitutional violation. There's clearly state action there, right?

Well yes, sure, but that only shows that the government acted. Any time any person or entity invokes a federal or state statute as a plaintiff or a defendant, they can point to Congress or the state legislature as having acted. The question then is whether the action in question is unconstitutional. S.B. 8 plainly is unconstitutional because it violates the right to abortion as found by the Supreme Court (for now). Section 230 may be suboptimal policy, but it is not unconstitutional. Contrary to the claims of Trump's lawsuits, it does not delegate to private parties a power to censor.

By way of comparison, consider that the property law of the state in which my hypothetical Peter and Deirdre live gives Deirdre the right to exclude Peter based on various reasons that, if invoked by the state itself, would be unconstitutional. Deirdre could choose not to invite Peter to her party based on his anti-traffic-light speech, even though the government could not deny someone a benefit based on their speech. Deirdre could choose not to invite Peter based on his race, even though race-based exclusions by government are unconstitutional. Deirdre could choose not to invite Peter because he is a Methodist, even though religious discrimination by government violates the First Amendment.

There is no unconstitutional delegation in any of those examples, however, because the (statutory or judge-made common) law that recognizes the right to exclude by property owners does not itself deploy the illicit criterion. The law doesn't say, for example, that property owners may only exclude people who oppose traffic lights, or may only exclude based on race where the excluded person is African American, or that Methodists should be disadvantaged. Indeed, the law doesn't expressly authorize censorship, racial discrimination, or religious discrimination of any sort. The private property owner's ability to use those criteria is simply an artifact of the property right's scope.

Likewise with respect to Section 230. If it said that Internet platforms have certain immunities but only when they disallow speech by conservatives or Trump supporters or anti-vaxxers, then sure, that law would be unconstitutional, and an Internet company could not rely on it. Even then, the Internet company might be able to exclude the speech in question without relying on the hypothetical viewpoint-based version of Section 230, but let's put that point aside. In any event, Section 230 is not viewpoint-based or content-based in any way that is constitutionally problematic.

That last qualifier acknowledges that Section 230 does seem to authorize private censorship that, if undertaken by the government directly, would violate the First Amendment. Its liability shield extends to  

any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.

Trump argues that Facebook, Twitter, and YouTube have censored him based on his viewpoint. They deny the claim as a factual matter, and they're almost certainly right. The Internet doesn't disfavor right-wing speech; it amplifies such views.

But even if Section 230 were construed to give media platforms a power to treat certain views as "otherwise objectionable" based on their politics, that would not amount to a delegation by the government unless the government itself were supplying the political criterion. The fact that the law permits Fox News to favor right-wing views does not implicate the government in "censorship" by Fox when it gives a platform to its right-wing opinion hosts. Legal permission by itself is not delegation.

Bottom line: The problem for Trump's lawsuit is that the Internet companies are not state actors, while Congress, which clearly is a state actor, acted constitutionally. By contrast, the Texas legislature, which is also a state actor, clearly acted unconstitutionally in passing S.B. 8. That's why people sued under it undoubtedly get to invoke the Constitution as a defense in state court, even as it remains to be seen whether the federal court lawsuit against the state judges will succeed.