Compelled Hosting Isn’t Rendered Unconstitutional by the Property Owner’s Ideological Beliefs or Economic Interests
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.
[* * *]
These principles apply even when the property owner disapproves of the third party’s message, or when the property owner’s other visitors do the same.
In Rumsfeld, for instance, the universities seriously objected to military recruiters (in particular, to the military’s “Don’t Ask, Don’t Tell” policy), arguing that “the Solomon Amendment requires law schools to collaborate with military recruiters in an effort—discriminatory recruiting—that the schools consider fundamentally unjust.” Many students were also upset at the presence of military recruiters on campus.
Yet the Court held that “[a] military recruiter’s mere presence on campus does not violate a law school’s right to associate, regardless of how repugnant the law school considers the recruiter’s message,” and that the recruiter’s presence doesn’t violate the law school’s right to be free from compelled speech. Likewise, California courts have followed up on PruneYard by making clear that shopping malls can’t block even speech they, their business partners, or many of their visitors might disapprove of, such as speech urging listeners to boycott the mall’s tenants, or speech displaying gruesome images of aborted fetuses.
In PruneYard, Justices Powell and White did note that the mall owners “have not alleged that they object to the ideas contained in the appellees’ petitions,” and that the owners didn’t claim that some likely future speakers “will express views that are so objectionable as to require a response even when listeners will not mistake their source.” But the majority didn’t rely on this, and thought that the possibility that PruneYard would have to respond (by “disavow[ing] any connection with the message”) was perfectly acceptable.
Of course, sometimes compelled hosting can undermine the property owner’s economic interests. Cable systems, for instance, would usually choose to carry those channels that are most profitable for them to include. The must-carry rule, by requiring them to drop some of their preferred channels to make room for others, would likely harm the systems financially, at least in some measure. Yet Turner upheld the must-carry rule.
Likewise, allowing leafleters and signature gatherers at a shopping mall, as in PruneYard, might impose some costs on the shopping center. Any such speakers might offend some patrons, and offended patrons are less likely to be in a shopping mood. Indeed, the California rule upheld in PruneYard protected even speech that urged boycotting stores in that very shopping center, yet this didn’t stop the Court from rejecting the shopping mall’s First Amendment claim.
The Ninth Circuit likewise interpreted the California PruneYard principle as invalidating a mall rule that banned handbills “naming a [mall] tenant,” “speech that may adversely affect [the mall owners’] business.” “In restricting such critical speech about their tenants, owners, or managers, Petitioners’ rule contravenes the purpose of California free speech protections: the preservation of discussion of issues even when they are contrary to a regulating party’s belief or interest.” And the California Supreme Court later reaffirmed that “a privately owned shopping center must permit peaceful picketing of businesses in shopping centers, even though such picketing may harm the shopping center’s business interests.”
This, I think, responds to the argument that requiring platforms to host offensive material violates the First Amendment because it might cost the platforms some money, for instance through lost advertising. To begin with, if advertisers just don’t want to have their material placed alongside a page that contains certain material, platforms can likely simply block advertising on that page instead of deleting the page outright. (Some platforms already do that in some situations.) That would mean that the platforms would have to host
Article from Latest – Reason.com