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Censorship and the coming constitutional pivot in response to the rise of the metaverse.

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DARPA (United States Department of Defense) utilized the subterfuge of the public private partnership to circumvent the First Amendment. This was accomplished in tandem with the judiciary, which to date refuses to view the doctrine of state action as encompassing the government's blatant constitutional end around. Though government entwinement with Google( Youtube) and Facebook is more than sufficient to meet the state action test, the courts thus far have remained willfully blind to DARPA's stratagem. 

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State Actor Tests:

Public Function 

Joint Action/Nexus

Entanglement 

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(“[I]t is a fundamental fact of our political order” that constitutional liability is only applied to conduct “fairly attributable to the State.”); Edmonson v. Leesville Concrete Co., 500 U.S. 614, 620 (1991) (“conduct of private parties lies beyond the Constitution’s scope in most instances” and only where private entities “must be deemed to act with the authority of the government” are such private actors “subject to constitutional constraints”)

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the “great object of the Constitution,” which is to “permit citizens to structure their private relations as they choose”).

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To argue Google and Facebook (which were funded by DOD) are not pervasively entangled with government because they are outwardly structured as private entities, ignores DARPA's explicit model of using public private partnerships to further its mission. 

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This Court most recently addressed these issues in Brentwood. There, the Court noted: The judicial obligation is not only to ‘preserv[e] an area of individual freedom by limiting the reach of federal law’ and avoi[d] the imposition of responsibility on a State for conduct it could not control,’ … but also to assure that constitutional standards are invoked ‘when it can be said that the State is responsible for the specific conduct of which the plaintiff complains. 531 U.S. at 295 (emphasis in original) (quoting Tarkanian, 488 U.S. at 191; Blum, 457 U.S. at 1004).

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Is the metaverse now under construction a town similar to Marsh?

https://supreme.justia.com/cases/federal/us/326/501/

Where is the traditional public square on the internet? it has been subsumed by the public private edifice designed to thwart speech

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Court found First Amendment rights on privately-owned and controlled property, Marsh v. Alabama, 326 U.S. 501 (1946),7 but Marsh is limited to its facts, which are not applicable here. There, the state of Alabama permitted the Gulf Shipbuilding Corporation, a private company, to build a “company town” called Chickasaw. Id. at 502-03. This Court noted that, other than its private ownership, Chickasaw “has all the characteristics of any other American town”: i.e., paved streets and sidewalks, a sewer system, a business district, a police force and a federal post office.

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Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 159 (1978) (emphasis added); see also Lloyd, 407 U.S. at 561-62 (noting that Marsh dealt with “an economic anomaly of the past, ‘the company town,’” which “‘functionally’ [was] no different from municipalities of comparable size” and its holding was “simply … that where private interests were substituting for and performing the customary functions of government, First Amendment freedoms could not be denied”).

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https://www.supremecourt.gov/DocketPDF/17/17-1702/74100/20181204145727387_17-1702%20Brief.pdf

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ICCPR

Article 19

1. Everyone shall have the right to hold opinions without interference.

2. Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

3. The exercise of the rights provided for in paragraph 2 of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary:

(a) For respect of the rights or reputations of others;

(b) For the protection of national security or of public order (ordre public), or of public health or morals.

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The Court held that, because the private company was performing the exclusively governmental function of operating a municipality, it was subject to the Constitution. Id. at 509-10.

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Justice Black wrote in his Logan Valley dissent: “Under what circumstances can private property be treated as though it were public? The answer that Marsh gives is when that property has taken on all the attributes of a town.”

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Article 20

1. Any propaganda for war shall be prohibited by law.

2. Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.