The Shadow State: Embracing Corporations As Surrogates For Government Action

Below is my column on the expanding role of corporations as surrogates for the federal government. The White House is openly calling for greater corporate action to address censorship, health care, and other issues.  That call is being supported by a growing list of Democratic members, journalists, and academics who have discovered the advantages of shared corporate governance.

Here is the column:

Teddy Roosevelt gave a speech in 1902, “The Control of Corporations,” which warned of the danger of corporate power over citizens’ lives. Calling corporations “creatures of the state,” he said they must be controlled by “the representatives of the public.” Roosevelt was a Republican, but his distrust of corporations (and his later faith in big government) would become a touchstone of Democratic politics for generations, from the Great Depression to the Great Society.

Like the reversal of Earth’s magnetic poles, American politics now seems suddenly to have flipped: Democratic leaders increasingly advocate for corporate governance while Republicans voice populist themes. From supporting the largest censorship programs in history to privately mandated vaccine “passports,” liberals are looking to companies like Apple or American Airlines to carry out social programs free from constitutional and political limits imposed on the government.

This new model of governance was evident when White House press secretary Jen Psaki was asked about a mandated vaccine passport system. She responded that it is “not currently the role of the federal government” but noted that the administration hopes to see such a mandate from “private-sector entities, universities, institutions that are starting to mandate, and that’s an innovative step that they will take and they should take.”

This use of corporations is born out of political and legal convenience. Despite the rising call for mandatory vaccinations, the Biden administration clearly is not willing to face the political costs of a government mandate. As of July 11, 159,266,536 Americans were fully vaccinated — 48 percent of the country’s population. When you consider the extremely high rate of vaccination for those over 65 (an estimated 85 percent), the percentage of adults under 65 is even smaller. That is a lot of voters who would not take well to a government mandate before the 2022 election. Moreover, the Supreme Court upheld a mandatory state vaccine in 1905, but any federal mandate could face constitutional challenges.

Private companies, however, have great leeway in dictating such conditions. So some, like CNN medical analyst Dr. Leana Wen, have called for coercive measures making it “hard for people to remain unvaccinated.” That coercion would come from private companies which would deny people access to travel, restaurants, movies, schools and other aspects of modern life. Thus, as with Psaki’s statement, the Biden White House is signaling private companies to implement such a national passport system.

And companies are listening.

Recently, Morgan Stanley declared that all employees must get a vaccine to return to work. While some many have religious objections, Morgan Stanley CEO James Gorman made clear in July that employees would face what Wen called “hard” times if they tried to work from home: “If you want to get paid New York rates, you work in New York. None of this, ‘I’m in Colorado … and getting paid like I’m sitting in New York City.’ Sorry, that doesn’t work.” The message could not be clearer that working remotely will come at a penalty.

If successful, corporations will manage a system of barriers and penalties to isolate the vaccine-hesitant into smaller and smaller spaces of existence. Citizens would find it increasingly difficult to be able to travel or dine out unless they meet the demands of corporate policies.

The political convenience of relying on corporate controls is most evident in the support for a massive system of corporate-based speech controls now implanted in the United States. The government cannot implement a censorship system under the Constitution — but it can outsource censorship functions to private companies like Facebook and Twitter. Just this week, the White House admitted it has been flagging “misinformation” for Facebook to censor. At the same time, Democrats like Sen. Richard Blumenthal (D-Conn.) have demanded that Big Tech companies commit to even more “robust content modification” — an Orwellian term for censorship. Liberal writers and media figures have called for corporate censorship despite the danger of an effective state media run through private corporations. Even Columbia Journalism Dean and New Yorker writer Steve Coll has denounced the First Amendment right to freedom of speech being “weaponized” to protect disinformation.

The public is now required to discuss public controversies within the lines and limits set by corporate censors — with the guidance of the government. Twitter barred reporting on Hunter Biden’s laptop until after the 2020 election. Facebook only recently announced that people on its platform may discuss the origins of COVID-19, after previously censoring such discussion — but it still bars opposing views on vaccinations and the pandemic. Other companies actively block wayward thoughts and views; last week, YouTube was fined by a German court for censoring videos of protests over COVID restrictions. Meanwhile, Twitter censored criticism of the Indian government meant to expose mismanagement of the pandemic that is costing lives.

The common refrain from the left is that corporate censorship is not a limit on free speech because the First Amendment only addresses government limits on speech. That not only maximizes the power of corporations but minimizes the definition of free speech. Free speech is not exclusively contained in the First Amendment. It includes the full range of speech in society in both private and public forums. Yet, liberals — who once opposed the recognition of corporate free speech rights in cases like Citizen’s United — are now great advocates for corporate speech rights, in order to justify the censorship of opposing views.

Social media companies are not just any businesses, however. They were created as neutral platforms for communication between people when they were given special immunity from lawsuits. Yet these corporations now control an enormous amount of public discourse and have become a rising threat to the democratic process, expanding their authority to frame the debate on issues ranging from climate change to gender identity, from election fraud to public health. You must espouse the “truth” as established by these companies on certain questions or risk being banned as “misinformation spreaders.” Indeed, Psaki this week insisted that once people are banned by one company, they should be banned from all social media companies.

If these trends continue, citizens could find themselves effectively exiled by order of corporate governors — unable to travel or go to school while also barred from espousing dissenting views on social media. They would, effectively, be “disappeared” within a shadow state that lacks any electoral or appellate process — a dystopian brave new world that could become all too real if we allow elected officials to use corporate surrogates to control the essential aspects of our lives.

Decades after Teddy Roosevelt’s warning about corporate control, his cousin Franklin — a Democrat — warned that the “first truth is that the liberty of a democracy is not safe if the people tolerate the growth of private power to a point where it becomes stronger than their democratic state itself.” That warning is worth repeating — indeed, worth tweeting … if Twitter will allow it.

Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University. You can find his updates on Twitter @JonathanTurley.

245 thoughts on “The Shadow State: Embracing Corporations As Surrogates For Government Action”

  1. Biden should help expand the “Fair Trade” system of consumer-voting. For example: if most consumers would only buy “Fair Trade” coffee, it would ultimately benefit American workers and our closest allies’ workers. Major coffee producers would have to treat their third-world laborers better with better benefits.

    Instead of a “race-to-the-bottom” competing with third-world workers, it would raise wages, safety standards and worker benefits raising world-wide wages and standards.

  2. Turley sure has gone full blown partisan in his column.

    “ Social media companies are not just any businesses, however. They were created as neutral platforms for communication between people when they were given special immunity from lawsuits.”

    Turley knows full well that even removing those liability protections social media platforms can still censor speech. He KNOWS that removing protections from liability will INCREASE the level of censorship. It will also expose Turley’s own blog to liability lawsuits.

    Conservatives, republicans have essentially painted themselves into a corner and don’t even realize it. There’s really not much they can do. They created this whole mess.

    1. Svelaz, why do you think an inferior mind knows more than Turley’s superior mind? Recently you couldn’t grasp why section 230 could be leading to a first amendment crisis because the social media companies can be accused of sub-contracting censorship. Psaki just admitted their guilt in her recent press conference.

      Why does Svelaz think a retraction of the law would lead to legal challenges against Turley’s site? Maybe Svelaz has been reading student papers written decades ago for his information because he certainly seems to be lacking any understanding of the law or what is happening today. His lack of truthfulness in prior discussions and his frequently factual errors have made Svelaz paint himself in a corner where credibility doesn’t shine.

      SM

  3. It’s amusing seeing Turley complain about corporations censoring speech. An action Turley himself admits is perfectly within their rights.

    The irony here is that those on the right, conservatives, and even many libertarians have been creating this situation for years. They have been hell bent on shrinking government while nurturing corporate largess by way of favorable tax policy and free market philosophies. Lo and behold, now the very essence of what they created they despise and are blaming the left for what is essentially a right wing ideal, deregulated markets and that includes social media or corporations who demand their employees be vaccinated or be fired. The right championed right to work laws where you can be fired without cause. Yet here they wail and gnash their teeth at the notion of corporations exercising the very things they have promoted for decades.

    Turley clumsily conflated government flagging misinformation to social media as proxy censorship while ignoring his own blog having the ability to do the same thing.

    Unfortunately for Turley there’s not much he can do except talk more against corporations doing exactly what they can do.

    He’s a free speech expert he KNOWS why it’s a problem to suddenly advocate for regulating corporations who “abuse” the power of censorship. Because a conservative majority ruled that corporations are people too they too have 1st amendment rights and the Supreme Court which has a conservative supermajority has always been on the side of corporations and it is certainly they will side with social media on its ability to censor what they deem against their term and conditions.

    Turley conveniently leaves out the pesky problem of TOS. Maybe he should address that problem first before complaining about this “sudden” corporate censorship that has been the norm for decades and backed by the courts.

    1. Svelaz, libertarians, conservatives and others not on the right and not anarchists or extremists have advocated following the Constitution and the law. Their views haven’t changed, but the way the law is being settled has changed considerably under Democrat control. Today the rule of law doesn’t seem to exist, and the Constitution is continuously under siege.

      You don’t realize these things because you read superficially. You link to things you haven’t read or don’t understand. You think a Ph.D. wrote a paper when it was a student. You believe an issue of today can be explained entirely by a juvenile paper written by a student over a decade ago.

      Most people would be embarrassed by their infantile assessments created by a deficit of knowledge and one mistake after another, but that doesn’t bother you a bit. You aren’t smart enough to recognize your mistakes even after they are pointed out to you.

      SM

  4. Of course this was ushered in under Obama.

    Operation Choke Point.

    But nobody cared, they loved the idea of corporations choking off financial services to icky companies doing icky stuff. Like porn, are guns. So Obama went the financial institutions and informed them of actions they might take….of their volition! Actions that federal regulators would take into account on their next audit.

    But, Hell no, slippery slope is the knee jerk reactions of a few radicals, this isn’t really a violation of the constitution…according to the Judiciary, who understands the need to stamp out the icky.

    1. They do not know how to negotiate.

      They are also unaware of defining their objective into a unified thought and then creating a unified way of dealing with it where the way is practical and relatively easy to obtain. In other words our leadership on the left is able to riot, bribe and sell America to its enemies. The left doesn’t know how to negotiate with our enemies, nor turn them in a favorable direction.

      1. I think much of the left doesn’t think our enemies are our enemies.

        Reminds me of Chamberlain saying he thought Herr Hitler was someone he could do business with.

    1. Con. Citizen:

      Well Hunter is the medium of bribery and corruption in our government so I think 3 in 4 is about right. Add that to his illicit drug use and sexual perversities and you could go for 4 in 5!

    2. That would be because the media’s Hunter Biden coverup is a valid, stark example of corporate media censorship.

      Good example bear repeating. Odd that such a basic tool of debate would be found “amazing.”

  5. As a libertarian, I believe private media companies should be able to control their content. The courts found Twitter was a public forum when some posters complained that Trump tried to exclude them from his account. So, Twitter could exclude them but Trump couldn’t? In any event, although I am not usually a fan of using tax policy to promote change, I would support a tax break for any social media platform that agrees to abide by the same First Amendment restrictions as if it were a “public forum.” That seems like the best, albeit not a perfect, solution.

    1. I agree with this in principle. The way I would do it though would be to modify 203 to say that immunity is only available to companies who “moderate” content only to the extent the Government would be permitted to do so under the 1st Amendment. That would allow them to restrict only those categories of speech that have been recognised by courts as being outside the scope of 1st Amendment protection.

    1. “Major Democrats (including our VP) agree voting machines easily hacked and can change election results!!!!”
      ***
      That’s why they like them.

      The election was stolen.

  6. Svelaz, here is one of the over half a dozen responses I made that remain unanswered. You keep lying but what is in black and white shows you for what you are.

    I had written: “A lot of gibberish was used by both you and the author. ”

    Svelaz, I see you could not answer a load of questions about the accuracy of your claims. You cannot respond because you were wrong and don’t dare to admit it. You would provide answers to prove otherwise, but you can’t.

    You were wrong about NYC charter schools that benefit Blacks. The Democrats and teachers union don’t like them even though vast numbers of Blacks succeeded where they would have failed if left in the public school system,

    You are mean and perhaps racist since you wish to deny inner city Blacks the opportunities you likely had. You believe racism is the answer to all problems. You think MLK was wrong and that color is more important than character.

    The results of CRT are seen in the NYC school system. You weren’t smart enough to pick it up when I brought up Stuyvesant and Bronx Science. Those schools had to forgo rigid academic standards to keep bright Asians out and put in minorities who didn’t meet the high standards.

    It appears you may not realize that admission to charter schools in NYC is obtained randomly. You seemed very confused in your prior statement.

    You talk about following The Science all the time, but apparently, you don’t know what science is. You used anecdote instead of fact and didn’t recognize the anecdote’s weakness. Not too bright. Should I have expected more?

    The Black community’s problems are created by people like you that refuse to look at what benefits blacks instead of following only what their ideologic masters tell them.

    SM

  7. The Shadow State: Embracing Corporations As Surrogates For Government Action

    What is the purpose of having a nation based upon rule of law?

    Corporations – which are human constructs chartered/regulated (eg Sherman Antitrust Act, Securities Exchange Act) by the state – should not be permitted to circumvent the law for politically expedient motives (or any other motive).

    In what Bizarro world does White House press secretary Jen Psaki (and her ilk) reside?

  8. Regarding the FDR quote at the end, while it’s true that the accumulation of great power by private companies can be a danger, that is not the essence of what is happening here. Psaki’s remarks show that FB and the other private social media companies have been coopted to do the bidding of Government bureaucrats and Democratic Party politicians. These private companies are used to being coopted in this way, because it is standard operating procedure for them in some of their largest markets, such as China and India. There is, however, a line of cases that consider it a 1st Amendment violation for the Government to coerce/induce a private company to restrain speech in a way that the 1st Amendment prohibits the Government from doing itself. That is the theory of Trump’s class action claim. It may be that he needs to add Government parties to perfect the claim, though it may be enough for him to pursue the companies alone. But the problem here is not merely about private power; it is about the abuse of private power for impermissible government purposes.

  9. I am waiting for Facebook to block the latest news designating it as misinformation. Ten percent of the Texas Democrats who went to Washington D.C. for a photo op have tested positive for the Corona virus. I tried to find a story about this on CNN. Guess what, not a word. Is no information the same as misinformation. A coordination meeting between the Biden Administration and Facebook on how to handle this story is going on as we type.

    1. Ten percent of the Texas Democrats who went to Washington D.C. for a photo op have tested positive for the Corona virus.
      10%? That’s the only group that is more than a fraction of 1% reinfection rate. Conclusion? Democrats are lying about being vaccinated. Sound right, because leftist have been the loud and proud anti-vaxers, for decades. Wow, Democrats= bald faced liars.

  10. All power is inherent in the people
    We are the Oregon Statewide Jural Assembly. We meet on Skype most Mondays at 7:00PM. You will be notified. Our function is to return Oregon to a Constitutional Republican form of government thru a grand jury process. Following is a five-minute read. Then there are some attachments. We are seeking grand jury/trial jury members to take these ogres to trial.
    Briefly: We are in a benevolent, predatory, form of martial law from DC/United States* incorporated governance in some form since 1861. It’s Name is the Lieber Code from Lincoln’s Executive Order 100 in color of law. We had a Constitutional Republican form of government from 1819 to 1860 or 1861. From 1776 to 1819 it was changing from an overthrown Monarchy. Most of the “people from 1776 to 1819 the people at large” were not convinced for a long time. There really is an active conspiracy, the industrial/military/judicial/legislative/executive/banker/ BAR/royalist/communist/Muslim/Georgia Guidestone complex.
    This does not involve the true Constitutional Republican form of government on each of the several states. As long as there are still “people”- that is the body, mind, spirit as. juxtaposed to “person,” the ALL-CAP NAME corporate fiction – all power is inherent in the people.
    Rather than being subdivisions of the US, INC., each state is an autonomous Nation, each with its own Constitution! All power is inherent in the people. The number of people is not specified and a majority is not required as we are not a Democracy. The several states of the union are the creator party to “The United States of America’s Constitution.” The “people at large” are beneficiaries. The “people at large” are the creator party to their state’s Constitutions.
    The STATE OF OREGON’s incorporated governance is color of law. Operated by the Salem oligarchy, aka Kate Brown et al, which is a subdivision of the DC/United States* as originally incorporated during Lincoln’s era.
    I think each STATE OF THE OTHER 49 is about the same. A little more carrot or a little more stick.
    To remove the Lieber Code/martial law the method is clear and written down by the de facto. The Lieber code of Lincoln’s EO 100 is nullified by a civilian court on the land. So says SCOTUS Ex parte Milligan. There was no — none, zero! — civilian courts on the land of Oregon. Until ours. I was told there is one on Texas, one on Philadelphia and one on Georgia. I have been unable to prove this. I do know there is no Article III court that will claim original jurisdiction. They have acquiesced so “we, the people, must do it ourselves.”
    The Army Heritage Center 717-245-3972/3949 verified the Lieber Code was updated and still in effect in 2015. No known changes since then. The Judge Advocate General attorney, acronym JAG, knew exactly what I was talking about.
    A method of returning Oregon to a Constitutional Republican form of government was/is: We assembled our 1st amendment Oregon Statewide Jural Assembly 3 years ago. We notified the DOJ, USMS, FBI, 36 Sheriffs, 30 Senators, A.G, governor, Secretary of State lawfully and none rebutted our claim. They all acquiesced and defaulted.
    We formed Article 1, Section 1 of Oregon’s Constitution and in- formed all the same ones. We formed our civilian court of record and informed all the same ones. Through Ex parte Milligan’s authority we nullified Lieber Code/martial law. Not one rebuttal.
    We informed the Oregon National Guard/Oregon Organized Militia’s JAG and they are not happy and have talked back and hung up. We are awaiting an appointment with their Commanding General Michael Stencel.
    We have formed a Grand jury pool and trial jury pool of Oregonians — non-US citizens – we brought forth 2 presentments for 38 de facto Prosecutors and 2 true bills against the evil doers on Oregon. Then we implement Article III Amendment VII. We tried 1 governor, 2 Senators,1 House Rep and 90 Oregon Legislators and found them all guilty as Oath breakers, without honor and may not hold a position of trust and guilty of due process violation 18 USC 3571 250K for each incident. This is a template for the other states.

    Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1866), was a landmark decision of the US Supreme Court that ruled the application of military tribunals to citizens when civilian courts are still operating as unconstitutional.
    Prepared by Francis Lieber, promulgated as General Orders No. 100 by President Lincoln, 24 April 1863. Instructions for the Government of Armies of the United States in the Field, prepared by Francis Lieber, LL.D., Originally Issued as General Orders No. 100, Adjutant General’s Office, 1863, Washington 1898: Government Printing Office.
    Article I Section 1 of Oregon’s Constitution Natural rights inherent in people. We declare that all men, when they form a social compact are equal in right: that all power is inherent in the people, and all free governments are founded on their authority, and instituted for their peace, safety, and happiness; and they have at all times a right to alter, reform, or abolish the government in such manner as they may think proper. —
    *See https://www.oregonlaws.org/ors/79.0307 (8) The United States is located in the District of Columbia.

    1. ronvrooman38,

      Your endless, rambling comment looks like a call to militias. And that’s about the point where Turley’s blog has sunk, ‘Digruntled militia types communicating to each other’.

    2. Your comment was about as sensible as the nutty libertarian article that makes the claim that Democrats are cozier with corporations than Republicans. .

  11. Wall Street Reacts To Delta Varient

    Rights Of Anti-Vaxers Low Priority

    Today Johnathan Turley was heard asking his lunch companions, “Don’t you hate that when Wall Street undermines your featured column?”

    We’re not sure if Turley really said that. But Wall Street’s pessimism today signals that fear of the Delta Varient could drive priorities in the weeks to come. One suspects the ‘civil rights’ of Anti-Vaxers could rank very low on the list.

    The truth is that a second shut-down of the economy would be devastating to the morale of employers, employees and consumers. The attitude towards Anti-Vaxers could become a thundering “F.U.!!!”.

    Below is the top headline from today’s Wall Street Journal:

    “How Jitters About the Global Economy Are Rippling Through Markets

    Behind the rout, investors say, is a growing list of concerns about the recovery”

    https://www.wsj.com/

    1. I’ll repeat this again, since it’s not soaking into your consciousness: the vaccine was never represented to completely prevent all COVID infections. What the vaccine does is prevent someone from getting seriously ill, needing hospitalization, getting intubated, placed on a ventilator or dying. It is remarkably successful in preventing serious illness and death, but no vaccine is perfect. No one ever said that this vaccine completely prevented all infections–it blunts the seriousness of an infection and protection begins 2 weeks after your second dose. That’s why masks are required for public transportation, because people can’t stay 6 ft. apart, and because it’s not approved for children under the age of 12, which is why the American Academy of Pediatrics recommends that children should be required to wear masks at school this fall. So, when your alt-right media point out that vaccinated people still get infections, so therefore you shouldn’t bother–that’s a lie. No one ever said you can’t get COVID after vaccination. Preventing serious illness, hospitalization and death is a tremendous benefit.

      1. I trust Dr. Fauci. He would never lie to us. And he’s always consistent with what he says.

  12. 1st Amendment rights? Equal time? Point/counterpoint? None of that applies to Covid. As this statement from the PM of NZ indicates, the government is the ONLY source of truthiness!
    ————-
    Ministry of Truth?

    The Prime Minister of New Zealand, Jacinda Ardern, speaking about Covid vaccine misinformation stated: “Dismiss anything else. We will continue to be your single source of truth.” (at 0:23-0:28)
    https://mobile.twitter.com/EricRWeinstein/status/1415513090796437507

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