‘Shadow State’: Embracing corporate governance to escape constitutional limits

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.