Compelled Hosting Isn’t Rendered Unconstitutional by Mistaken Public Assumptions of Endorsement
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 arguments are in this post, which relies on the PruneYard, Turner, and Rumsfeld precedents, and in this one, which explains why Miami Herald, Hurley, and the various other “common theme” precedents don’t apply.
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Of course, whenever visitor V speaks on host H‘s property, there is always some possibility that some observers will assume that H at least views V‘s speech as acceptable (even if H didn’t choose the speech and doesn’t expressly endorse it). After all, property owners are usually allowed to decide what behavior, including speech, is allowed on their property, and a decision not to expel a speaker may be seen as in some measure approving of the speaker.
But say the law requires H—such as a shopping mall owner, a cable system, a university, a phone company, or a shipper such as FedEx or UPS—to let certain speakers use its property. Once people know this is the law, they can no longer reasonably assume any such endorsement. And H can generally explain to the public that it’s hosting such speakers as a matter of legal command, not of voluntary decision.
Such an ability by property owners to “expressly disavow any connection with the message” (a message that is itself clearly written by others), and to point out that the message is only allowed “by virtue of [the] law,” suffices to prevent any First Amendment violation. Observers can be expected to “appreciate the difference between speech [the property owner] sponsors and speech the school permits because legally required to do so, pursuant to an equal access policy,” especially when nothing “restricts what the [property owner] may say about” the third party’s speech. And the same is true for platforms, which can easily inform readers that they aren’t endorsing particular writers, or more generally that they aren’t endorsing speech on their sites as a whole.
Of course, there’s always the risk that some people wouldn’t understand that a social media platform that hosts, say, a Nazi or Communist page is merely following the law—or that they would understand, but would still be upset at the platform, or even threaten to boycott it. But the same risk was present in Rumsfeld; indeed, it was greater in Rumsfeld, because the Solomon Amendment merely threatened universities with loss of federal funds if they exclude military recruiters, so universities weren’t exactly “legally required” to exclude them. “[S]tudents will in fact perceive their schools as endorsing the military’s discriminatory policies” if they hosted military recruiters, reasoned the amicus of brief of various law student associations, “particularly if schools provide the type of affirmative assistance demanded under the Solomon Amendment.” Yet the Court viewed this possible inaccurate perception as irrelevant.
This risk of mistaken perception of endorsement was likewise present in PruneYard. Yet the property owner’s opportunity to “expressly disavow any connection with the message” was seen as sufficient to preclude any First Amendment challenge to the common-carrier-like requirement. The same should apply to social media platforms. A passage from Board of Ed. of Westside Community Schools v. Mergens, which Rumsfeld expressly quoted in rejecting the risk of misperception, is particularly apt here:
[P]etitioners’ fear of a mistaken inference of endorsement is largely self-imposed, because the school itself has control over any impressions it gives its students. To the extent a school makes clear that its recognition of respondents’ proposed club is not an endorsement of the views of the club’s participants, students will reasonably understand that the school’s official recognition of the club evinces neutrality toward, rather than endorsement of, religious speech.
The school’s control over students’ perceptions is of course imperfect, but it is substantial enough to make the “mistaken inference of endorsement” irrelevant. And the same is true for social media networks, which likewise have many tools to influence readers’ perceptions, and to “make clear” that their hosting various views “is not an endorsement of the views.” As the Court later put it, there can be no “modified heckler’s veto,” in which speech could be barred based on what some “members of the audience might misperceive.”
To be sure, a social media platform might n
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