The Lack of a Sufficient “Common Theme” on the Large Social Media Platforms
Another excerpt from the First Amendment section of my Social Media as Common Carriers? article (see also this thread); recall that the key First Amendment argument is in this post, which relies on the PruneYard, Turner, and Rumsfeld precedents—this post explains why certain other precedents don’t apply here.
[* * *]
Now of course requiring that material be included within a coherent speech product—a newspaper, a parade, a fundraising pitch—is generally unconstitutional, not because it involves compelled hosting as such, but because it interferes with the host’s own speech. To quote Rumsfeld, the problem in those cases was “that the complaining speaker’s own message was affected by the speech it was forced to accommodate”:
[B]ecause “every participating unit affects the message conveyed by the [parade’s] private organizers,” a law dictating that a particular group must be included in the parade “alter[s] the expressive content of th[e] parade.” As a result, we held [in Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, Inc.] that the State’s public accommodation law, as applied to a private parade, “violates the fundamental rule of protection under the First Amendment, that a speaker has the autonomy to choose the content of his own message.”
- The right-of-reply statute in Miami Herald was unconstitutional in part because the newspaper is the aggregate of all of the items that it chooses “to print or omit.” Requiring a newspaper to include certain material that it would prefer to omit thus changes the content of the newspaper. (Miami Herald also held that a right of access is unconstitutional if it’s triggered by the content of what the property owner says, for instance if it’s triggered by a newspaper’s publishing criticism of candidates. Such a content-based trigger would in effect be a “content-based penalty” on the speech that triggers the hosting obligation, just as a content-based tax would be.)
- The law in Riley v. National Federation of the Blind requiring fundraisers to mention certain information in their pitches was unconstitutional in part because, in that situation, “[m]andating speech that a speaker would not otherwise make necessarily alters the content of the speech.”
- The law in McIntyre v. Ohio Elections Commission requiring people to sign any campaign materials was unconstitutional in part because “decisions concerning omissions or additions to the content of a publication” (including just concerning the omission or inclusion of the author’s name) are protected by the First Amendment.
- The law in NIFLA v. Becerra was similarly a speech compulsion because “requiring [anti-abortion clinics] to inform women how they can obtain state-subsidized abortions—at the same time [the clinics] try to dissuade women from choosing that option—… plainly ‘alters the content’ of [the clinics’] speech.” The clinics’ “speech” referred to the aggregate content of all the speech that the patrons received from the clinics, just as the Hurley parade organizers’ speech was the aggregate of all the speech that viewers would see in the parade. And people go to clinics precisely to hear the clinics’ speech (whether or not they anticipate that the clinics’ speech will come from a particular viewpoint).
Hurley explains this right to create a coherent speech product well. In Hurley, the Court held that a parade could not be required to include floats that the organizers disapproved of:
Since every participating unit affects the message conveyed by the private organizers, the state courts’ application of the statute produced an order essentially requiring petitioners to alter the expressive content of their parade.
Though “in spite of excluding some applicants, the [parade organizer] is rather lenient in admitting participants,” the parade still had a broad general message, presumably having to do with “what merits celebration on [St. Patrick’s Day].”
Yet PruneYard, Turner, and Rumsfeld show that some hosting mandates are not seen as interfering with a coherent speech product. As the Pacific Gas & Electric Co. v. Public Utilities Commission plurality noted, “[n]otably absent from PruneYard was any concern that [compelled hosting of public speech] might affect the shopping center owner’s exercise of his own right to speak.”
Similarly, in Rumsfeld, the Court didn’t view the aggregate of all the recruiting on the law school campus as a coherent speech product the way a parade might be. “A law school’s recruiting services”—here, presumably referring to the sum of all the recruiting—”lack the expressive quality of a parade, a newsletter, or the editorial page of a newspaper.” “[A]ccommodating the military’s message does not affect the law schools’ speech, because the schools are not speaking when they host interviews and recruiting receptions.”
The military recruiters, of course, were themselves speaking; their own recruiting pitches surely had at least as much “expressive quality” as did the fundraising pitches in Riley. But the law schools weren’t the ones speaking, because they weren’t like parade organizers, creating a coherent whole out of all the recruiting interviews—they were merely “host[s],” “not speak[ers].” A law school’s “accommodation of a military recruiter’s message is not compelled speech because the accommodation does not sufficiently interfere with any message of the school.”
Likewise with Turner, which Hurley expressly distinguished:
[W]hen dissemination of a view contrary to one’s own is forced upon a speaker intimately connected with the communication advanced, the speaker’s right to autonomy over the message is compromised….
Article from Latest – Reason.com