The First Amendment and Treating Social Media Platforms as Common Carriers

Another excerpt from my Social Media as Common Carriers? article (see also this thread).

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I think this sort of common carrier rule [focused on the hosting function of social media platforms] would be constitutionally permissible, on the strength of three precedents:

1. PruneYard Shopping Center v. Robins, which upheld a state law rule that required large shopping malls to allow leafleters and signature gatherers (a rule that has since been applied by some lower courts to outdoor spaces in private universities[113]);
2. Turner Broadcasting System v. FCC, which upheld a statute that required cable systems to carry over-the-air broadcasters; and
3. Rumsfeld v. FAIR, which held that the government could require private universities to provide space to military recruiters, alongside other recruiters.[114]

These cases, put together, establish several basic principles.

[1.] No First Amendment Right Not to Host

“Requiring someone to host another person’s speech is often a perfectly legitimate thing for the Government to do.”[115] So wrote Justice Breyer, and the cases he cited (PruneYard and Rumsfeld), as well as Turner, fully support that view. PruneYard expressly rejected the claim “that a private property owner has a First Amendment right not to be forced by the State to use his property as a forum for the speech of others.”[116] Turner and Rumsfeld rejected similar claims.[117]

Even the district court opinion striking down the specific Florida social media access rules in NetChoice, LLC v. Moody noted that “FAIR and PruneYard establish that compelling a person to allow a visitor access to the person’s property, for the purpose of speaking, is not a First Amendment violation, so long as the person is not compelled to speak, the person is not restricted from speaking, and the message of the visitor is not likely to be attributed to the person.”[118] Likewise, I think, social media platforms may be made “a forum for the speech of others,” at least as to their hosting function, and at least so long as the platforms (like the shopping center in PruneYard) are generally “open to the public” rather than “limited to the personal use” of the platforms.[119]

Rumsfeld also expressly rejected the claim that compelled hosting is a form of compelled association. The freedom of association protects an organization’s right to refuse to allow someone to speak on its behalf, as the Court held in Boy Scouts of America v. Dale.[120] That freedom may entitle an organization to generally refuse “to accept members it does not desire.”[121] But that freedom doesn’t protect an organization’s right to refuse to allow speakers onto its property:[122]

The law schools say that allowing military recruiters equal access impairs their own expression by requiring them to associate with the recruiters, but … a speaker cannot “erect a shield” against laws requiring access “simply by asserting” that mere association “would impair its message.”[123]

In a sense, then, when it comes to statutorily created rights of access to social media platforms, the law would likely be much the same as what the Court held with regard to such rights of access to wire service stories in Associated Press v. United States:

[The First] Amendment rests on the assumption that the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public, that a free press is a condition of a free society.

Surely a command that the government itself shall not impede the free flow of ideas does not afford non-governmental combinations a refuge if they impose restraints upon that constitutionally guaranteed freedom. Freedom to publish is guaranteed by the Constitution, but freedom to combine to keep others from publishing is not.

Freedom of the press from governmental interference under the First Amendment does not sanction repression of that freedom by private interests.[124]

The Court held this with regard to the Associated Press, an alliance of newspapers, but its rationale would also apply to one mega-company as well.

Thus we see that:

• Under Associated Press, though the government may not tell wire services what to write or what not to write, it may constitutionally choose to require them to share their intellectual property with others.[125]
• Under PruneYard and Rumsfeld, private property owners who open up their property to the public (or to some segment of the public, such as military recruiters) may be required by state or federal law to share their real estate with other speakers.[126]
• Likewise, a legislature may tell social media platforms that they must (at least in some contexts) share their online “virtual estate” with others, on the same terms that it offers other users.

If social media are “the modern public square,”[127] the law may constitutionally treat them (at least as to certain of their functions) the way physical public squares can be treated.[128] The New Jersey Supreme Court’s rationale for adopting a public access rule much like the one the California Supreme Court adopted in PruneYard seems largely apt here:

The private [shopping mall] property owners in this case … have intentionally transformed their property into a public square or market, a public gathering place, a downtown business district, a community; they have told this public in every way possible that the property is theirs, to come to, to visit, to do what they please, and hopefully to shop and spend; they have done so in many ways, but mostly through the practically unlimited permitted public uses found and encouraged on their property.[129]

Turner did mention that cable systems “exercis[e] editorial discretion over which stations or programs to include in [their] repertoire,” and noted that “must-carry rules regulate cable speech” in part by “reduc[ing] the number of channels over which cable operators exercise unfettered control.”[130] But such a reduction in unfettered control wasn’t seen as by itself posing a serious First Amendment problem: Turner rejected cable operators’ “editorial control” claims as an argument for strict scrutiny[131]—and when it applied intermediate scrutiny, it didn’t view the interference with editorial control as a basis for potentially invalidating the statute.[132]

Nothing in the recent Janus v. AFSCME,[133] which held that the government may not require government employees to contribute to unions, undermined these holdings. Janus didn’t discuss Turner or PruneYard, and mentioned Rumsfeld only for the narrow proposition that “government may not ‘impose penalties or withhold benefits based on membership in a disfavored group’ where doing so ‘ma[kes] group membership less attractive.'”[134] And the compelled contribution cases, of which Janus is the most recent, have drawn a line between compelling people to fund the views expressed by a particular private speaker (such as the union in Janus) and compelling people to fund a wide range of views expressed by a wide range of speakers selected on viewpoint-neutral criteria (such as the student groups in Board of Regents v. Southworth[135]). A requirement that platforms host speakers without regard to viewpoint would be more comparable to the requirement that compulsory student fees go to student groups without regard to viewpoint (Southworth), or the requirement that shopping malls host speakers without regard to viewpoint (PruneYard), than to a requirement that employees fund a particular advocacy group (Janus).[136]

Nor does Wooley v. Maynard support a general right not to host. In Wooley, the Court held that requiring car owners to display the motto “Live Free or Die” on their license plates is unconstitutional.[137] But in Rumsfeld, the Court concluded that compelled hosting generally “is a far cry” from that in Wooley,[138] even when a property owner (such as a university) is being compelled to allow a particular kind of government speech (such as military recruiting).

The Rumsfeld Court appeared to treat the Wooley mandate as involving a “situation in which an individual must personally speak the government’s message,” and not just a requirement that a “speaker … host or accommodate another speaker’s message.”[139] “Speak” is often used in First Amendment cases to refer not just to oral statements but to writing or to display of material: For instance, the Court in Cohen v. California viewed Cohen’s display of “Fuck the Draft” on his jacket as “speech”;[140] City of Ladue v. Gilleo described posting a sign in one’s window as speaking;[141] and Wooley itself described Maynard’s claim as involving “the right to refrain from speaking.”[142] Likewise, the Rumsfeld Court seemed to distinguishing between (1) forbidden compulsion to display a message on one’s car, which is closely associated with the “personal” speech of the “individual” motorist, and (2) permissible compulsion to host speakers in rooms within an institution’s building, however obviously those rooms may be associated with the institution.

To be sure, then-Judge Kavanaugh took a narrow view of Turner in his dissent in the D.C. Circuit net neutrality case, arguing that, under Turner, “the First Amendment bars the Government from restricting the editorial discretion of Internet service providers, absent a showing that an Internet service provider possesses market power in a relevant geographic market.”[143] (Judge Kavanaugh did not discuss PruneYard or Rumsfeld.) His view was that even Internet service providers could not be constitutionally required to carry content they wish to omit. Presumably he would apply the same logic to social media platforms, unless he changes his mind about the matter generally or about whether Facebook, Twitter, and YouTube have market power.[144]

Justice Kavanaugh may thus well disagree with Justice Thomas’s openness to possible common carrier treatment of social media platforms.[145] Where the other Justices are on the subject, though, is not clear. And my argument in this Article aims at interpreting existing precedents, not at trying to predict exactly how each Justice would likely apply those precedents.

[In the next post: Miami Herald, Hurley, and more; or you can read ahead here.]

[113] PruneYard Shopping Ctr. v. Robins, 447 U.S. 74, 88 (1979); Commonwealth v. Tate, 432 A.2d 1382 (Pa. 1981); State v. Schmid, 423 A.2d 615 (N.J. 1980).

[114] The statute in Rumsfeld required universities to host military recruiters as a condition of getting government funds. But the Court declined to rely on that spending hook, and held that “the First Amendment would not prevent Congress from directly imposing the Solomon Amendment’s access requirement.” 547 U.S. 47, 59–60 (2006).

[115] Agency for Int’l Dev. v. All. for Open Soc’y Int’l, Inc., 140 S. Ct. 2082 (2020) (Breyer, J., dissenting, joined by Ginsburg & Sotomayor, JJ.). The majority, which took a less speech-restrictive position than Justice Breyer did, did not disagree with him on this.

[116] PruneYard, 447 U.S. at 86.

[117] Turner Broadcasting System v. FCC, 520 U.S. 180, 224–25 (1994); Rumsfeld v. FAIR, 547 U.S. 47, 70 (2006).

[118] No. 4:‌21CV220-RH-MAF, 2021 WL 2690876, *9 (N.D. Fla. June 30, 2021).

[119] 447 U.S. at 87. PruneYard also held that the California rule, under which shopping malls had to allow speech by members of the public, didn’t implicate the Takings Clause. 447 U.S. at 82–85; cf. Szóka & Barthold, supra note 10 (suggesting that social media access mandates might implicating the Takings Clause). Later cases made clear that this was because “Limitations on how a business generally open to the public may treat individuals on the premises are readily distinguishable from regulations granting a right to invade property closed to the public.” Cedar Point Nursery v. Hassid, 141 S. Ct. 2063 (2021). In this respect, social media platforms are again much like shopping malls.

[120] Boy Scouts of Am. v. Dale, 530 U.S. 640, 648, 653–54 (2000).

[121] Rumsfeld, 547 U.S. at 69 (quoting Boy Scouts, 530 U.S. at 648); Christian Legal Society v. Martinez, 561 U.S. 661, 680 (2010).

[122] Id.

[123] Id. (citations omitted).

[124] 326 U.S. 1, 20 (1945) (paragraph breaks added); see also Lakier & Tebbe, supra note 34.

[125] Id. at 4–5, 21.

[126] When I refer to the PruneYard doctrine, I’m referring to the U.S. Supreme Court’s holding that states may, without violating the First Amendment, require shopping malls to allow people to speak on their property. I am not endorsing the California Supreme Court’s earlier holding in the litigation interpreting the state constitution as securing such a right—that holding has only been followed by a few states, Batchelder v. Allied Stores Int’l, Inc., 445 N.E.2d 590 (Mass. 1983); Green Party v. Hartz Mountain Industries, Inc., 752 A.2d 315 (N.J. 2000); New Jersey Coalition Against War in the Middle East v. J.M.B., 650 A.2d 757 (N.J. 1994); Commonwealth v. Tate, 432 A.2d 1382 (Pa. 1981); Western Pa. Socialist Workers 1982 Campaign v. Connecticut General Life Ins. Co., 515 A.2d 1331 (Pa. 1986), and the U.S. Supreme Court has expressly held that the First Amendment itself does not require such a public access rule, Hudgens v. NLRB, 424 U.S. 507 (1976) (mostly recently reaffirmed in Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921, 1928 (2019)). But see Andrei Gribakov Jaffe, Digital Shopping Malls and State Constitutions—A New Font of Free Speech Rights?, 33 Harv. J.L. & Tech. 269 (2019) (arguing in favor of applying the logic of the California Supreme Court’s PruneYard decision to social media platforms); Benjamin F. Jackson, Censorship and Freedom of Expression in the Age of Facebook, 44 N.M. L. Rev. 121, 145 (2014) (arguing that social media platforms should be viewed as state actors, because they “serve an important public function:‌ providing a space that has the primary purpose of serving as a forum for public communication and expression, that is designated for that purpose, and that is completely open to the public at large”). Nor am I arguing in favor of applying Marsh v. Alabama, 326 U.S. 501 (1946), which recognizes a First Amendment right of access to the streets of a privately-owned “company town,” to social media platforms.

Rather, the question I deal with is:‌ If a legislature sets up a similar rule for social media platforms, would such a statute be constitutionally permissible? It is the U.S. Supreme Court’s PruneYard decision, not the California Supreme Court’s decision in that case, that most bears on that question.

[127] Packingham v. N.C., 137 S. Ct. 1730, 1737 (2017).

[128] For a similar analysis, see Philip Primeau, ESICA:‌ Securing—Not Compelling—Speech on the “Vast Democratic Forums” of the Internet, 26 Roger Williams U. L. Rev. 160 (2021).

[129] N.J. Coalition v. JMB, 650 A.2d 757, 776 (N.J. 1994). I wouldn’t use this as a basis for creating such a public access rule as an interpretation of a state constitution, much less of the federal constitution; but I do think this argument supports the view that a statutory right of access wouldn’t violate the First Amendment rights of the platform owners, just as it doesn’t violate the First Amendment rights of mall owners.

[130] Turner Broad. Sys., Inc. v. FCC, 512 U.S. at 636–37; see also Bhagwat, supra note 71, at 3–4.

[131] 512 U.S. at 653–57.

[132] Id. at 664–68. Neither did the Court in 1997 when it finally confirmed that the statute passed intermediate scrutiny. Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180, 215–26 (1997).

[133] 138 S. Ct. 2448 (2018).

[134] Id. at 2468.

[135] 529 U.S. 217, 221 (2000).

[136] For more on this, see Eugene Volokh, The Law of Compelled Speech, 97 Tex. L. Rev. 355, 373–75 (2018).

[137] 430 U.S. 705, 717 (1977).

[138] 547 U.S. at 62.

[139] Id. at 63; see also PruneYard, 447 U.S. at 87 (distinguishing Wooley in part on the grounds that Wooley involved “personal property that was used ‘as part of [the car owner’s] daily life'”).

[140] 403 U.S. 15, 18, 19, 21, 22 (1971).

[141] 512 U.S. 43, 56 (1994).

[142] Maynard, 430 U.S. at 714.

[143] U.S. Telecom Ass’n v. FCC, 855 F.3d 381, 418, 426–31 (D.C. Cir. 2017); see also Raymond Shih Ray Ku, Free Speech & Net Neutrality:‌ A Response to Justice Kavanaugh, 80 U. Pitt. L. Rev. 855 (2019); Joel Timmer, Promoting and Infringing Free Speech? Net Neutrality and the First Amendment, 71 Fed. Comm. L.J. 1, 15–22 (2018). For more on the First Amendment and net neutrality, see Stuart Minor Benjamin, Choosing Which Cable Channels to Provide Is Speech, but Offering Internet Access Is Not, Volokh Conspiracy (May 1, 2017, 6:‌22 pm), https:‌‌//‌perma.cc/‌R5F7-3FS6; Stuart Minor Benjamin, Transmitting, Editing, and Communicating:‌ Determining What ‘The Freedom of Speech’ Encompasses, 60 Duke L.J. 1673 (2011); Susan Crawford, First Amendment Common Sense, 127 Harv. L. Rev. 2343 (2014).

[144] U.S. Telecom Ass’n, 855 F.3d at 433.

[145] Biden v. Knight First Am. Inst., 141 S. Ct. 1220, 1224 (2021) (Thomas, J., concurring). Note that, though Justice Thomas joined Justice O’Connor’s dissent in Turner, 512 U.S. at 674, he did so because he thought the must-carry law was content-based, and expressly declined to join the part of the opinion that reasoned that the law was unconstitutional even under the scrutiny applicable to content-neutral restrictions. Indeed, Part III of that opinion, which he did join, (1) drew the link between certain content-neutral access mandates and PruneYard, and (2) suggested “that if Congress may demand that telephone companies operate as common carriers, it can ask the same of cable companies.” Id. at 684.