Compelled Nondiscrimination in the Subscription Function
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.
[* * *]
Of course, social media platforms do much more than letting people visit a particular page or view a particular video. Among other things, they let people subscribe to others’ materials, so that all or some of those materials appear in the subscribers’ feeds. (This is the “follow” feature on Twitter and Instagram, the “subscribe” feature on YouTube, and, more or less, the “friend” feature on Facebook.) Indeed, this subscription function in large measure distinguishes social media from mere user-generated content.
Could the government bar platforms from discriminatorily declining to show subscribers certain materials posted by users to whose feeds they have subscribed? I’m inclined to say that it can, though the argument there is more complex than it is for the pure hosting function.
The key precedent on this in Rumsfeld. We’ve discussed above how in that case, like in PruneYard and Turner, the Court held that property owners (there, universities) could be required to host speakers they disliked. But say that a university told recruiters: “OK, we have to let you on our property, so you can be in Room 217. But we won’t speak to anyone about your being in Room 217: We won’t include this in any printed materials where we list all the recruiters, and we won’t send out the e-mails with information about you the way we do about other recruiters. Good luck with students finding you!”
Rumsfeld held that this too is constitutionally unprotected: As part of requiring universities not to discriminate against military recruiters in choosing whom to host on its property, the university could also be required not to discriminate in choosing whom to inform students about.
The compelled speech to which the law schools point is plainly incidental to the Solomon Amendment’s regulation of conduct, and “it has never been deemed an abridgment of freedom of speech or press to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed.” Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 502 (1949). Congress, for example, can prohibit employers from discriminating in hiring on the basis of race. The fact that this will require an employer to take down a sign reading “White Applicants Only” hardly means that the law should be analyzed as one regulating the employer’s speech rather than conduct. See R.A.V. v. St. Paul, 505 U.S. 377, 389 (1992) (“[W]ords can in some circumstances violate laws directed not against speech but against conduct”). Compelling a law school that sends scheduling e-mails for other recruiters to send one for a military recruiter is simply not the same as forcing a student to pledge allegiance, or forcing a Jehovah’s Witness to display the motto “Live Free or Die,” and it trivializes the freedom protected in Barnette and Wooley to suggest that it is.
The record in the case suggests that this means military recruiters could likely have to be included in “recruiting receptions,” and that “an unwil
Article from Latest – Reason.com