We must begin a discussion of the legal changes that seem urgently required, especially in the area of media censorship, invasion of privacy and lack of transparency by private companies that appear to be performing functions, possibly at the behest of the government, as a way of bypassing the restrictions placed on the government by the First Amendment. (Adobe Stock File #2478721)
When I was growing up, the mail was delivered by the post office, money was printed by the treasury, votes were counted by election officials, wars were fought by the army, prisons were run by departments of correction, law enforcement was conducted by the police force, space exploration was done by NASA, legal disputes were resolved by judges and juries.
Today, these and other traditional governmental functions are being shared among public, private and mixed groups. This growing privatization of what used to be deemed the provenance of the state raises fundamental and rarely discussed questions of constitutional law, political accountability and the nature of our society.
The motivation behind these changes has generally been efficiency and economic benefit. The private sector often does it better and more cheaply than government bureaucracy. In our free-market economy, even the government must compete and prevail. If a corporation builds a better mousetrap than the government, we buy it. And generally, that is a good idea. But it may come with costs, not easily measurable in dollars or speed.
The Constitution itself was not designed for efficiency. A nonfederal, unicameral, parliamentary system of governance — such as those in many other democracies— is far more likely to get things done than our complex federal, bicameral, separation of powers system. Ours was designed to check and balance power, rather than to expedite results. We pay a price for our desire to prevent too much centralization of authority in any one person or institution. And sometimes we grow impatient at the slow pace of progress.
We want our mail delivered faster and more frequently; we want to know the outcome of elections tonight not next week; we want alternatives to paper currency; we want military results more effectively achieved by private operatives than by the hierarchical armed forces; we want to imprison criminals more cheaply; we want our homes and businesses protected by privately paid former FBI agents; we trust entrepreneurs to take space travelers beyond the moon; we want our disputes resolved without months of pretrial discovery. And so, we turn to the classic American solution: private enterprise, free-market competition, capitalism.
This means less intrusion by government but also less protection by our Constitution, which generally constrains state action, not private conduct that is regulated more by private contract than by public law.
The time has come to consider the costs and benefits of this important development. There is no "one size fits all" solution. In some areas, privatization has worked better than in others. Federal express has proved the virtue of competing with governmentally run post offices. Alternative dispute resolution – arbitration and other non-governmental mechanisms for deciding controversies -- is far superior to courts in most cases. But privately run prisons are questionable, as are Blackwater-type quasi-military operations. Private space travel has yet to prove its worth. And privately tabulated voting is currently in litigation. (Full disclosure: I am currently involved in a free speech aspect on such a case.) As far as crypto currency is concerned, the market seems to love it, while most American's don't understand it. It is yet to be seen if it will have a beneficial, harmful or no effect on status of the U.S. dollar internationally, or the ability of criminal organizations to launder ill-begotten gains more secretly. It is not the object of this article to resolve these issues or to propose specific jurisprudential shifts. It is simply to bring together a number of related changes that have in common the privatization of traditional governmental activities, and to begin a discussion of the legal changes that, especially in the area of social media censorship, seem urgently required. One point would seem self-evident. The government, by delegating its traditional functions to private companies, should not be permitted to deny to citizens such basic rights as transparency, accountability and recourse.
There are also new developments that do not fit neatly into the shift from government to private. Social media was never a function of the state, though the internet probably could not have been constructed without governmental involvement. Now it has become the primary medium of communication – and inevitably of the control and censorship of information. The role of the Constitution is as yet uncertain. Paradoxically it is the First Amendment that empowers private mega-companies like Facebook and Twitter to censor and limit access to advocacy and other forms of speech that are protected from governmental control by that Amendment.
Our history of governmental and private institutions may be somewhat mixed – e.g., fire departments were originally private – but our jurisprudence has been based largely on the assumption that government has a monopoly over certain activities. This monopoly is now being challenged by private companies that perform functions that were traditionally performed by the government, such as delivering the mail and creating currency. But our jurisprudence has not kept pace. Constitutional law still operates largely to protect against governmental overreach, on the assumption that the potential for such overreach lies generally with state action. The emerging role of privatization of traditional governmental functions requires a rethinking of some constitutional assumptions.
The New Deal in the 1930s represented a dramatic shift in many areas from private enterprise to governmental participation. That shift, which some say helped save capitalism, was obvious for all to see. It resulted in a visible change in our constitutional jurisprudence: governmental intrusion that had previously been held unconstitutional became legally acceptable. The current shift, from governmental to private, is more subtle and less visible. It, too, must be accompanied by some adaptation of legal principles.
We must begin a discussion of the legal changes that seem urgently required, especially in the area of media censorship, invasion of privacy and lack of transparency by private companies that appear to be performing functions, possibly at the behest of the government, as a way of bypassing the restrictions placed on the government by the First Amendment.
Alan M. Dershowitz is the Felix Frankfurter Professor of Law, Emeritus at Harvard Law School, and the author most recently of The Case for Color-Blind Equality in an Age of Identity Politics and The Case for Vaccine Mandates, Hot Books (2021). He is the host of "The Dershow," on Rumble. Follow Alan M. Dershowitz New podcast: The Dershow, on Spotify, YouTube and iTunes, Dersh.Substack.com
Alan M. Dershowitz is the Jack Roth Charitable Foundation Fellow at Gatestone Institute.