Free Speech and Private Power: No Categorical Right to Control Property
[I am serializing my short Harvard Law Review Forum essay titled “Free Speech and Private Power”, responding to the Harvard Law Review’s publication of Evelyn Douek & Genevieve Lakier’s excellent new article, Lochner.com? I actually agree with much of what Douek & Lakier say, but offer a somewhat different perspective on the matter, mostly asking what the Court’s recent cases mean going forward, rather than trying to critique them.]
[1.] In Moody.—While Moody protected some platform rights, it rejected the view that a property owner has a categorical First Amendment right to make sure that its property is not used to convey messages of which it disapproves. Such an argument was made, based on Wooley v. Maynard, and it could have derived some support from cases such as Janus v. AFSCME, Council 31, which held that the government may not require people to contribute money for ideological uses that they reject.
But the Court made clear that “ordering a party to provide a forum for someone else’s views implicates the First Amendment” “if, though only if, the regulated party is engaged in its own expressive activity, which the mandated access would alter or disrupt.” And the Court acknowledged that PruneYard Shopping Center v. Robins and Rumsfeld v. FAIR upheld compulsions that an entity host speech on its property, “because in those cases the compelled access did not affect the complaining party’s own expression.”
In the Moody oral argument, Chief Justice Roberts suggested that Rumsfeld might have been limited to conditions on government funding, though his opinion in Rumsfeld expressly disclaimed any such limitation. But the Moody opinion treated Rumsfeld as good law with regard to compelled access rules and declined an amicus’s call to over-rule PruneYard.
The Court thus echoed what Justice Breyer wrote in a 2020 dissent:
Requiring someone to host another person’s speech is often a perfectly legitimate thing for the Government to do. See, e.g., FAIR (holding that the Government may require law schools to host speech from military recruiters); PruneYard (holding that the Government may require the owner of a private shopping mall to host speech from politically minded pamphleteers).
And this too makes sense, if one looks by analogy at the many property owners that are indeed disabled from excluding certain third-party views. Closest to platforms, phone companies—both landline monopolies and the famously competitive cellular companies—are
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