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.

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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 unconstitutional: 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.[212]

The record in the case suggests that this means military recruiters could likely have to be included in “recruiting receptions,”[213] and that “an unwilling institution” would have to “distribute, post, and maintain the military’s literature, send emails promoting the military, include the military’s listing in printed publications, and make introductions and arrange meetings.”[214]

Now as with most discussions of the Giboney “conduct … carried out by means of language” doctrine, this analysis is quite opaque;[215] and the analogy to the “White Applicants Only” signs is not entirely helpful, because it involves speech restrictions rather than speech compulsions. But the underlying principle does indeed arise in a vast range of antidiscrimination rules.

Private schools and private universities, for instance, have broad First Amendment rights to speak, including for instance to “promote the belief that racial segregation is desirable.”[216] Nonetheless, the government may require them not to do discriminate based on race in admitting students.[217] And given that this is so, it must be equally permissible for the government to compel the schools and universities to speak to the students in ways necessary to give those students equal access to the education—to hand students schedules of classes, homework assignments, grades, feedback on papers, and the like. Likewise, the schools and universities could be required to speak to third parties about their students without regard to race, for instance by sending copies of transcripts to anyone who asks. (Whether the schools or teachers could be required to provide letters of recommendations, which include opinions about the qualities of the student, is a harder question.[218])

Nor is this limited to bans on discrimination based on race, religion, and the like. Say a phone company tells the Socialist Party, “we understand that we have to allow you to use our property for your evil anti-private-property speech, but we can’t be compelled to speak to you, so we won’t inform you of the phone number that we have selected for you.” Surely common carriage laws can forbid that, and require the phone company to communicate information equally to all customers. Likewise, such laws can require the phone company to equally communicate information about all customers, for instance in its telephone directories.[219]

The same, I think, may apply for platforms’ nondiscrimination obligations with regard to their users: If I’m right that platforms can be required to host all users’ speech (or at least not to discriminate based on viewpoint), they might also be required to provide that speech to the users’ subscribers, on a viewpoint-neutral basis. Under that approach, if someone goes to, say, http://twitter.com/VolokhC, or follows @VolokhC while viewing Tweets in reverse chronological order mode,[220] Twitter would have to show them the posts from my Volokh Conspiracy blog, without blocking any based on viewpoint.

Now the platforms might reasonably want to provide subscribers some subset of all the posts from accounts to which they are subscribed. If a Twitter user is following 500 Twitter accounts, for instance, perhaps Twitter might want to show not every single post from those accounts (which in practice would just mean that the follower would see only the few most recent posts), but some subset, for instance the most retweeted posts.

Yet Rumsfeld suggests that the law could require that any such screening be done in a suitably neutral way (e.g., without discrimination based on viewpoint or based on whether the platforms views certain claims expressed in a post as accurate). By way of analogy, say that a university was sending out a special e-mail about recruiters who are hiring people at starting salaries of over $100,000, or was conducting a job fair for students interested in public interest impact litigation. The statute upheld in Rumsfeld (the Solomon Amendment) wouldn’t require the university to include military recruiters there, because they wouldn’t fit the neutral criteria for that particular mailing: The Solomon Amendment merely forbids discrimination against military recruiters, rather than compelling the inclusion of recruiters in every item of speech related to recruiting. Likewise, a requirement that platforms not discriminate based on certain criteria in implementing users’ subscriptions may be valid even if it leaves platforms free to use other criteria.

To be sure, Rumsfeld isn’t a perfect analogy here. (That’s why it’s just an analogy.) The Solomon Amendment, for instance, prohibited universities from discriminating against military recruiters even in its speech to students as a whole, not just in speech to students who had expressed an interest in military jobs. My analysis here is limited to discrimination in implementing subscriptions, where the recipients of the speech had expressly asked to be shown material from certain users.

Still, I think Rumsfeld is important because it reaffirms that the government may require that platforms (whether universities or social media platforms) provide speech to listeners on a nondiscriminatory basis. Such a requirement, when coupled with a mandate that a platform provide space for speakers on a nondiscriminatory basis, doesn’t violate the First Amendment’s prohibition on compelled speech.

[212] 547 U.S. 47, 62 (2006) (cleaned up).

[213] Rumsfeld v. FAIR, 390 F.3d 219, 240 (3d Cir. 2004) (discussing such compelled inclusion), rev’d, 547 U.S. 47 (2006).

[214] Reply Brief for Appellants, FAIR v. Rumsfeld, No. 03-4433, 2004 WL 5215238, *5–(3d Cir. Mar. 5, 2004) (citations omitted).

[215] Eugene Volokh, The “Speech Integral to Criminal Conduct” Exception, 101 Cornell L. Rev. 981, 997 (2016).

[216] Runyon v. McCrary, 427 U.S. 160, 176 (1976). The Court stated that “it may be assumed that parents have a First Amendment right to send their children to educational institutions that promote the belief that racial segregation is desirable, and that the children have an equal right to attend such institutions.” But while this is cast in light of the rights of parents and children, it presupposes a comparable right on the part of schools, including their rights to engage in “the ‘[e]ffective advocacy of both public and private points of view, particularly controversial ones’ that the First Amendment is designed to foster.” Id. at 175.

[217] Id.

[218] See Eugene Volokh, Professor Refuses to Write Letters of Recommendations for Creationists, Volokh Conspiracy (Jan. 30, 2003, 11:‌46 am), https:‌‌//‌perma.cc/‌73K2-TELJ#90255714.

[219] See, e.g., US W. Commc’ns, Inc. v. Hix, 93 F. Supp. 2d 1115, 1131 (D. Colo. 2000) (applying the Telecommunications Act of 1996, 471 U.S.C. § 251(b)(3), which requires that telephone companies provide “nondiscriminatory access to ‘directory listings,'” including to customers of competing telephone companies); US W. Commc’ns, Inc. v. Colo. Pub. Utils. Comm’n, 978 P.2d 671, 674 (Colo. 1999) (likewise, with regard to similar state law requirement).

[220] See supra note 101.