Quasi-State Agents in First Amendment Doctrine

Abstract

This article challenges the orthodoxy that First Amendment speech rights can bind only the state. I argue that the primary justification for the freedom of speech is to protect fundamental interests like autonomy, democracy, and knowledge from the kind of extraordinary power over speech available to the state. If so, this justification applies with nearly equal force to any private agents with power over speech rivaling that of the state. Such a class of private agents, which I call quasi-state agents, turns out to be a live possibility once we recognize that state power is more limited than it seems and can be broken down into multiple, equally threatening parts. Quasi-state agents might include a limited set of corporations, from the largest social media platforms to powerful private employers. However, because quasi-state agents are not exactly like state agents, but pursue important private aims that the state cannot, I argue that the First Amendment might bind them slightly differently (and less demandingly) than it does the state. Drawing on examples from American state and comparative constitutional law, I offer several analytical models for understanding this differential application.

Keywords: First Amendment, free speech, constitutional law, law & philosophy, social media