The First Amendment and Treating Social Media Platforms as Common Carriers
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I think this sort of common carrier rule [focused on the hosting function of social media platforms] would be constitutionally permissible, on the strength of three precedents:
- PruneYard Shopping Center v. Robins, which upheld a state law rule that required large shopping malls to allow leafleters and signature gatherers (a rule that has since been applied by some lower courts to outdoor spaces in private universities);
- Turner Broadcasting System v. FCC, which upheld a statute that required cable systems to carry over-the-air broadcasters; and
- Rumsfeld v. FAIR, which held that the government could require private universities to provide space to military recruiters, alongside other recruiters.
These cases, put together, establish several basic principles.
[1.] No First Amendment Right Not to Host
“Requiring someone to host another person’s speech is often a perfectly legitimate thing for the Government to do.” So wrote Justice Breyer, and the cases he cited (PruneYard and Rumsfeld), as well as Turner, fully support that view. PruneYard expressly rejected the claim “that a private property owner has a First Amendment right not to be forced by the State to use his property as a forum for the speech of others.” Turner and Rumsfeld rejected similar claims.
Even the district court opinion striking down the specific Florida social media access rules in NetChoice, LLC v. Moody noted that “FAIR and PruneYard establish that compelling a person to allow a visitor access to the person’s property, for the purpose of speaking, is not a First Amendment violation, so long as the person is not compelled to speak, the person is not restricted from speaking, and the message of the visitor is not likely to be attributed to the person.” Likewise, I think, social media platforms may be made “a forum for the speech of others,” at least as to their hosting function, and at least so long as the platforms (like the shopping center in PruneYard) are generally “open to the public” rather than “limited to the personal use” of the platforms.
Rumsfeld also expressly rejected the claim that compelled hosting is a form of compelled association. The freedom of association protects an organization’s right to refuse to allow someone to speak on its behalf, as the Court held in Boy Scouts of America v. Dale. That freedom may entitle an organization to generally refuse “to accept members it does not desire.” But that freedom doesn’t protect an organization’s right to refuse to allow speakers onto its property:
The law schools say that allowing military recruiters equal access impairs their own expression by requiring them to associate with the recruiters, but … a speaker cannot “erect a shield” against laws requiring access “simply by asserting” that mere association “would impair its message.”
In a sense, then, when it comes to statutorily created rights of access to social media platforms, the law would likely be much the same as what the Court held with regard to such rights of access to wire service stories in Associated Press v. United States:
[The First] Amendment rests on the assumption that the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public, that a free press is a condition of a free society.
Surely a command that the government itself shall not impede the free flow of ideas does not afford non-governmental combinations a refuge if they impose restraints upon that constitutionally guaranteed freedom. Freedom to publish is guaranteed by the Constitution, but freedom to combine to keep others from publishing is not.
Freedom of the press from governmental interference under the First Amendment does not sanction repression of that freedom by private interests.
The Court held this with regard to the Associated Press, an alliance of newspapers, but its rationale would also apply to one mega-company as well.
Thus we see that:
- Under Associated Press, though the government may not tell wire services what to write or what not to write, it may constitutionally choose to require them to share their intellectual property with others.
- Under PruneYard and Rumsfeld, private property owners who open up their property to the public (or to some segment of the public, such as military recruiters) may be required by state or federal law to share their real estate with other speakers.
- Likewise, a legislature may tell social media platforms that they must (at least in some contexts) share their online “virtual estate” with others, on the same terms that it offers other users.
If social media are “the modern public square,” the law may constitutionally treat them (at least as to certain of their functions) the way physical public squares can be treated. The New Jersey Supreme Court’s rationale for adopting a public access rule much like the one the California Supreme Court adopted in PruneYard seems largely apt here:
The private [shopping mall] property owners in this case … have intentionally transformed their property into a public square or market, a public gathering place, a downtown business district, a community; they have told this public in every way possible that the property is theirs, to come to, to visit, to do what they please, and hopefully to shop and spend; they have done so in many ways, but mostly through the practically unlimited permitted public uses found and encouraged on their property.
Turner did mention that cable systems “exercis[e] editorial discretion over which stations or programs to include in [their] repertoire,” and noted that “must-carry rules regulate cable speech” in part by “reduc[ing] the number of channels over which cable operators exercise unfettered control.” But such a reduction in unfettered control wasn’t seen as by itself posing a serious First Amendment problem: Turner rejected cable operators’ “editorial control” claims as an argument for strict scrutiny—and when it applied intermediate scrutiny, it didn’t view the interference with editorial control as a basis for potentially invalidating the statute.
Nothing in the recent Janus v. AFSCME, which held that the government may not require government employees to contribute to unions, undermined these holdings. Janus didn’t discuss Turner or PruneYard, and mentioned Rumsfeld only for the narrow proposition that “government may not ‘impose penalties or withhold benefits based on membership in a disfavored group’ where doing so ‘ma[kes] group membership less attractive.'” And the compelled contribution cases, of which Janus is the most recent, have drawn a line between compelling people to fund the views expressed by a particular private speaker (such as the union in Janus) and compelling people to fund a wide range of views expressed by a wide range of speakers selected on viewpoint-neutral criteria (such as the student groups in Board of Regents v. Southworth). A requirement that platforms host speakers without regard to viewpoint would be more comparable to the requirement that compulsory student fees go to student groups without regard to viewpoint (Southworth), or the requirement
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