The op-ed — which was published under Trump’s name but was written in far more legalistic and restrained language than Trump usually uses — contends that “Big Tech companies are being used to impose illegal and unconstitutional government censorship.” It declares that “the tech companies are doing the government’s bidding, colluding to censor unapproved ideas” and that, “in effect, Big Tech has been illegally deputized as the censorship arm of the U.S. government.”
The op-ed argues that social media companies took “guidance” from governmental entities like the Centers for Disease Control and Prevention, and engaged in “coordination” with these entities, about what constituted Covid-19 misinformation that should be censored. Thus, the op-ed suggests, the social media companies qualify as state actors that are subject to the requirements of the First Amendment.
Kavanaugh wrote that “merely hosting speech by others is not a traditional, exclusive public function and does not alone transform private entities into state actors subject to First Amendment constraints.” Kavanaugh also wrote: “Providing some kind of forum for speech is not an activity that only governmental entities have traditionally performed. Therefore, a private entity who provides a forum for speech is not transformed by that fact alone into a state actor.”
Kavanaugh wrote that the court has held that private entities can qualify as a state actor “in a few limited circumstances,” including “when the government compels the private entity to take a particular action” or “when the government acts jointly with the private entity.”