//  9/26/17  //  Commentary

It's now clear that President Trump poses unprecedented threats to freedoms of speech and press. Take Care and Protect Democracy have teamed up to host a forum in which leading scholars consider how we can use the law (and litigation) to protect against Trump's use of the "bully podium." This is the latest entry in that forum.

Within his first year of office, President Trump has challenged a litany of laws and norms, including several related to the freedom of speech.  As Protect Democracy outlined in the post inaugurating this forum, Trump has demanded apologies from people who criticize him, written off unfavorable press coverage as “fake news,” and suppressed facts and information that are inconvenient to his agenda.

Trump’s behavior also poses a challenge to existing First Amendment doctrine, which sharply delineates between government suppression of speech and private suppression of speech.

Under the “state action” doctrine, only government suppression of speech violates the First Amendment.  Private suppression of speech does not.  The state action doctrine has been much maligned – it ignores how private employers can suppress speech by wielding individuals’ livelihood over them, and the doctrine is notoriously difficult to apply in consistent ways. But the doctrine still distinguishes the boundaries of the First Amendment.

At least it is supposed to.  Autocrats like Trump -- who seek to leverage their official power over private companies to get private entities to do their bidding -- blur the lines between government and private action.  How might the state action doctrine work when the federal government is led by an autocrat?

State action doctrine generally maintains that only state action (i.e., government action) violates constitutional guarantees such as the First Amendment, while private action does not. But state action doctrine recognizes that there are occasionally circumstances where formally private actors should be treated as government actors, and thus be subject to constitutional requirements such as the First Amendment. For example, a private entity is treated as a government actor if the private entity is “entangled” with the government such that the private entity can be “fairly treated” as the government, and the government is “responsible” for the private entity’s conduct.  A private actor may also be treated as the state where the private actors’ “conduct has sufficiently received the imprimatur of the State so as to make it ‘state’ action.” A private entity may likewise be a state actor if the state has “foster[ed] or encourage[d]” the private entity to take a particular action, such as where the government tried to induce the private entity to take a particular action by “exercis[ing] coercive power or … provid[ing] … significant encouragement, either overt or covert.”  Whether a private entity is a state actor may depend on how much “interest” the government “showed” in the private entity’s decision, and whether there is a “close nexus between the State and the challenged action.”

But it takes more than a government subsidy, or government regulation to make a private entity a “state” actor.  A private entity isn’t a state actor simply because it has received “any sort of benefit” from the government, or is subject to “state regulation in any degree.”

So let’s take President Trump’s most recent attacks on Colin Kaepernick and Jemele Hill.  Kaepernick famously chose to kneel while the national anthem played during NFL games in order to draw attention to systemic racism and racialized police violence, a decision that almost certainly contributed to his not being signed as an NFL quarterback.  The President called him a “son of a bitch,” who should be “off the field.”  A day later, Trump wrote that:

If a player wants the privilege of making millions of dollars in the NFL, or other leagues, he or she should not be allowed to disrespect … …. Our Great American Flag (or Country) and should stand for the National Anthem.  If not, YOU’RE FIRED.  Find something else to do!

Jemele Hill, an ESPN anchor, stated that Trump’s reaction to Charlottesville revealed that Trump is an ignorant white supremacist.  The White House Press Secretary subsequently suggested that ESPN should fire Hill for her remarks, and the President demanded an apology from ESPN (or Hill).  He also wrote that “ESPN is paying a real big price for its politics.”

Let’s imagine that ESPN fired Hill, or that NFL owners avoid signing Kaepernick because of his political statements (the latter is not really an exercise of imagination).  Would ESPN or the NFL be a government actor who could be in violation of the First Amendment?

It’s unlikely, but it’s also just hard to say – there are so few government officials who behave like Trump that there aren’t a ton of cases that attempt to apply state action doctrine to autocrats like him. There also aren’t many cases that even contemplate there would be autocrats like Trump, or cases that suggest what courts should do when confronted with one. On top of that, the state action doctrine itself is fairly inadministrable and unclear.  Here’s how the Supreme Court described the doctrine:

What is fairly attributable is a matter of normative judgment, and the criteria lack rigid simplicity. From the range of circumstances that could point toward the State behind an individual face, no one fact can function as a necessary condition across the board for finding state action; nor is any set of circumstances absolutely sufficient.

But here is how the doctrine might play out, should the issue come up.

Factor #1: Is There Government Interest In, or Government Imprimatur On, the Private Entity’s Action, Or a Close Nexus between Government and the Private Entity’s Action?

It’s hard to see how the government – here, the President and his office – haven’t shown an interest in whether NFL owners employ Kaepernick, or ESPN employs Hill.  The President has repeatedly expressed his views on those matters, and encouraged Kaepernick and Hill’s employers to do specific things – not hire Kaepernick and fire Hill.  “YOU’RE FIRED” is not exactly ambiguous, and that’s precisely how news agencies reported the President’s statements. He also explicitly said that the “NFL should change [its] policy” that allows players to protest, and later added that the “NFL must respect” his views on protests during the anthem.

Given Trump’s predilection for ill-tempered tweets, it’s also not far-fetched to think he’d openly celebrate Hill being fired or the NFL changing its protest policies, if those things ever came to pass. That’s what Trump did after NASCAR owners warned drivers against any protests that involve kneeling during the anthem: “So proud of NASCAR and its supporters and fans. They won’t put up with disrespecting our Country or our Flag – they said it loud and clear!” Statements like that provide at least some evidence of government imprimatur.

Factor #2: Is The Government Inducing The Private Entity’s Action By Fostering It, Encouraging It, Or Offering Benefits

Similarly here, it looks as though the government – again, the President – is fostering and encouraging private employers to take particular action (not hire Kaepernick and fire Hill).  But is the President offering the private employers any sort of benefits if the employers ultimately changed their protest policies, fired Hill, or refused to sign Kaepernick?  That’s unclear, but it’s also potentially insignificant.  The Supreme Court has said that “no one fact can function as a necessary condition across the board for finding state action.”

The President may offer employers a host of benefits that are harder to quantify in discrete ways.  President Trump and his subordinates have used their platforms to shamelessly promote the businesses of their supporters.  Kellyanne Conway has hawked Ivanka Trump’s brand on television.  President Trump tweeted out a plug for Sheriff David Clarke’s book

Might Trump be – implicitly or covertly – offering a similar benefit to ESPN or the NFL if they do his bidding?  It’s hard to say, but it’s not implausible to think so. He publicly touted NASCAR after they forbade certain protests, which gave NASCAR some free (positive) publicity from a social media account with tens of millions of followers. There’s an entire industry that’s built up around the idea that positive social media mentions – or really any social media mentions that aren’t explicitly negative – are good for business. Social media influencers are people with popular social media accounts, who are paid to highlight brands or products, and mention them favorably.

Factor #3: Is The Government Inducing The Private Entity’s Action Through Threats And Coercion?

Here too, it’s both unclear whether the President is inducing the NFL or ESPN’s actions through threats or coercion.

Trump himself suggested he might be inducing some NFL owners’ actions as the Chicago Tribune reported:

“[I]t was reported, that NFL owners don't want to pick him up because they don't want to get a nasty tweet from Donald Trump, do you believe that?" Trump said to a cheering crowd.

"I just saw that," the president said, adding, "I said if I remember that one, I'm gonna report it to the people of Kentucky, because they like it when people actually stand for the American flag, right?"

Of course, the meaning of these statements is a little unclear, and Trump is prone to lying.  (He also credited himself in the same speech with the NFL’s declining ratings.) 

But then on Sunday, the President took to Twitter to make things more clear, and seemingly called for a boycott of the NFL so long as NFL players are engaging in a particular kind of political speech, and expressing a particular view:

If NFL fans refuse to go to games until players stop disrespecting our Flag & Country, you will see change take place fast. Fire or suspend!

...NFL attendance and ratings are WAY DOWN. Boring games yes, but many stay away because they love our country. League should back U.S.

He emphasized the same point – that audiences should boycott teams who allow players to protest police violence by kneeling during the anthem, and that the NFL should not permit such protests – several other times:

Sports fans should never condone players that do not stand proud for their National Anthem or their Country. NFL should change policy!

He started a hashtag to get others to pressure the NFL - #StandForOurAnthem – and belligerently mentioned the “many people boo[ing] the players who kneeled yesterday.”  Never content to let sleeping dogs lie, he continued: "Tremendous backlash against the NFL and its players for disrespect of our Country. #StandForOurAnthem." A Trump-aligned PAC urged a boycott of the NFL as well – “Turn off the NFL."

Even outside of the NFL, there is considerable evidence that Trump penalizes private entities who go against his wishes by publicly attacking them.  He attacked Nordstroms when the company decided to drop Ivanka Trump’s brand, for example.  And Trump’s public criticisms might carry with them real consequences.   When Trump did something similar to Amazon – publicly attacking Amazon after an Amazon subsidiary criticized him—, Amazon’s stock price dropped.  And when Trump publicly called out a union leader for criticizing him, the union leader was flooded with nasty and occasionally threatening overtures from Trump supporters.

There’s also some indication that private entities seek to avoid confrontations with the President, perhaps for those reasons.  ESPN’s memo after the President took issue with Jemele Hill suggests they do.

On the other hand, at least some NFL owners (specifically, those who donated to Trump’s campaign) might be declining to hire Kaepernick because they independently hold Trump’s views that a black man can’t kneel during the national anthem to make a statement about racism.  In other words, Trump might not be inducing or forcing those NFL owners to implement Trump’s views; it’s the owner’s views that are doing the work in those circumstances.  But that’s probably not the case for all NFL owners, or all private employers.

So would a private entity like the NFL or ESPN be considered a state actor under circumstances where the President has urged them to take a specific action, offered material benefits to businesses of his supporters, and harmed the businesses of his detractors?  Who knows, but only in 2017 are we even having to ask the question.

Back in May 2015, Trump stated that “Nobody would fight harder for free speech than me ….”  That was a lie, like so many of his other promises.  But President Trump may have the unintended consequence of increasing the amount of free speech (as more individuals feel the need to make a statement) and the scope of free speech protections, as his autocratic tendencies might result in private actors being subject to the First Amendment.

N.B.: As those who have followed the commentary on the entry ban litigation know, occasionally the Trump administration’s enablers derisively frame these sorts of analyses as arguments about “how the law applies to Trump,” or as proposals for “Trump-specific exceptions” to legal rules.  But that’s not the question I’m addressing.  The question, rather, is how existing doctrine applies to the facts, whatever they are.


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