Viewpoint-Neutrality Mandates Must Themselves Be Viewpoint-Neutral
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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[1.] Forbidden: Viewpoint discrimination against or in favor of particular speakers
Of course, there are limits to what the government can do here. First, any right of access for the public has to be viewpoint-neutral (though, as in Rumsfeld, a right of access can prefer governmental speakers over other speakers). In PruneYard, for instance, the Court stressed that “no specific message is dictated by the State to be displayed on appellants’ property. There consequently is no danger of governmental discrimination for or against a particular message.” The plurality opinion in Pacific Gas & Electric Co. v. Public Utilities Commission echoed this. Thus, for instance, if the government requires platforms to allow all speakers, it can’t exclude from that protection pro-terrorist speakers or racist speakers or anti-police speakers.
To be sure, this might prove to be a poison pill that would keep some legislators from supporting common carrier mandates. Better to leave platforms free to pick and choose what to include, the legislators might think, than to create a law that benefits Nazis or ISIS supporters. Yet again this is a familiar feature of common carrier status: The price of requiring phone companies or delivery companies to serve all customers is that they will have to serve even those customers who seek to spread evil ideas. Legislators have accepted that as to other common carriage obligations; they might be willing to accept it here as well.
It’s possible, though, that the government may impose some compelled hosting requirements that are viewpoint-neutral but content-based. The Massachusetts and Washington high courts, for instance, have held that private shopping malls must allow people to solicit signatures for initiatives, referenda, and candidate nominating petitions—yet the Washington court held that they need not equally allow other speakers or even other signature gatherers, and the Massachusetts court left open that question. Though the courts didn’t discuss the content discrimination issue expressly, they appeared to be open to the view that some broad categories of speech can be more protected than others.
Likewise, federal law protects labor-related speech (for or against) in private workplaces, without protecting other speech. The California Supreme Court concluded that a similar California statute allowing labor-related picketing on private property (but not other picketing) was constitutional, though the D.C. Circuit had taken the opposite view. Federal broadcasting regulations (which, to be sure, are subject to the more relaxed First Amendment scrutiny applicable to broadcasting) require broadcasters to sell space to candidates for office; this speaker-based restriction is properly treated as content-based, because it is justified by a desire to promote speech of a certain content—candidates’ explanations of why they should be elected.
And these content-based but viewpoint-neutral protections against ejection from private property are a special case of a broader range of content-based but viewpoint-neutral protections against private action. Various state statutes, for instance, ban employers from punishing their employees for “political activity,” which protect only political speech. (Some protect “espousal of a candidate or a cause” but not speech unrelated to some social or political cause, and some protect only speech related to elections.) Other statutes protect whistleblowers reporting violations of various laws, but not other speakers.
[2.] Not forbidden: Legislators’ concern about supposed discrimination against particular viewpoints
To be sure, many calls for common carrier treatment arise from concerns that the platforms are suppressing particular views. Today, the concern is mostly about conservative views, though some Socialists and others on the Left have also argued that their views are being disproportionately suppressed, and some have claimed that certain anti-racist messages are routinely blocked, too. As a result, it is often conservative legislators who promote such proposals, though so have some prominent liberal legal scholars.
But of course that’s true of many sorts of regulations. The ban on residential picketing upheld in Frisby v. Schultz, for instance, was enacted in response to anti-abortion protesters picketing the home of a doctor who performed abortions. Human nature being what it is, it seems likely that at least some who supported the ban did so in part because they disapproved of the anti-abortion position, or at least of the militant branches of the anti-abortion movement.
Of course, others may have supported the ban because they disapproved of residential picketing regardless of the message. And for many, the motivations were likely a mix: People often most easily the non-viewpoint-related harms of speech (such as its intrusion on residential privacy, regardless of its message) in the speech of their political adversaries, and often subconsciously downplay such harms in the speech of their friends. Yet the Court upheld the law as a content-neutral restrictions, despite its having been prompted by speech of a particular sort.
The Court confronted this directly in Hill v. Colorado, where it treated as content-neutral a restriction on approaching people within eight feet outside medical facilities, which also stemmed from speech by anti-abortion advocates:
[T]he contention that a statute is “viewpoint based” simply because its enactment was motivated by the conduct of the partisans on one side of a debate is without support. The antipicketing ordinance upheld in Frisby v. Schultz
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