Social Media Platforms Have Property Rights Too
While pundits and lawyers cross swords over free speech on social media, a quieter yet critically important principle is being ignored: property rights. In addition to violating the First Amendment, the rush to force social media platforms to host content violates the Fifth Amendment as well—in particular, the Takings Clause.
The Takings Clause says that government shall not take private property “for public use, without just compensation.” While many are familiar with the clause’s importance when the government wants to seize land through eminent domain, courts have also applied this right as a limit on the ability to overregulate property. For example, if a beach town requires the owners of oceanfront properties to let the public walk across their yards to get to the beach, this would require compensation, because the regulation effectively takes the property owner’s right to exclude, a cornerstone of ownership.
Likewise, the Takings Clause shields social media platforms from regulations requiring they host content or users they want to exclude. These platforms have as much right to eject unwelcome digital interlopers as homeowners do to stop the government from using their yard as a public right of way—unless they are given just compensation. If states intend to force social media apps to host users and content against their wishes, they will have to pay for it.
Both state and federal laws already treat online platforms as property. All states criminalize unauthorized access to computer systems, often expressly framing these crimes as trespass. Platforms defend their territory with encryption, authentication, firewalls, terms of service, and other digital fences. Laws affirming online platforms as protectable property, alongside the platforms’ own fortifications, clearly categorize them as “private property” under the Takings Clause.
Laws that mandate online platforms to accept certain content or users effec
Article from Reason.com
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