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.”[229] The plurality opinion in Pacific Gas & Electric Co. v. Public Utilities Commission echoed this.[230] 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.[231]

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,[232] and candidate nominating petitions[233]—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.[234] 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.[235] The California Supreme Court concluded that a similar California statute allowing labor-related picketing on private property (but not other picketing) was constitutional,[236] though the D.C. Circuit had taken the opposite view.[237] 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;[238] 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.[239]

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,”[240] which protect only political speech. (Some protect “espousal of a candidate or a cause” but not speech unrelated to some social or political cause,[241] and some protect only speech related to elections.[242]) Other statutes protect whistleblowers reporting violations of various laws, but not other speakers.[243]

[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,[244] and some have claimed that certain anti-racist messages are routinely blocked, too.[245] As a result, it is often conservative legislators who promote such proposals, though so have some prominent liberal legal scholars.[246]

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.[247] 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.[248]

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 … was obviously enacted in response to the activities of antiabortion protesters who wanted to protest at the home of a particular doctor to persuade him and others that they viewed his practice of performing abortions to be murder. We nonetheless summarily concluded that the statute was content neutral.[249]

Likewise, in McCullen v. Coakley, the Court held that an ordinance didn’t become viewpoint-based even when it restricted only speech outside abortion clinics, and thus obviously affected one viewpoint more than others:

It is true, of course, that by limiting the buffer zones to abortion clinics, the Act has the “inevitable effect” of restricting abortion-related speech more than speech on other subjects. But a facially neutral law does not become content based simply because it may disproportionately affect speech on certain topics. On the contrary, “[a] regulation that serves purposes unrelated to the content of expression is deemed neutral, even if it has an incidental effect on some speakers or messages but not others.”[250]

And this makes sense. Law professors can talk dispassionately and abstractly about what sorts of content-neutral speech restrictions are needed to protect residential privacy, the ability to use health care facilities without undue difficulty, or the rights of citizens not to have their speech unduly trammeled by powerful corporations. Indeed it’s good practice for us law professors to consider how these restrictions would affect the wide range of viewpoints to which they would likely be applied in the decades to come, and to try as best we can to step behind the “veil of ignorance” in evaluating their merits.

But in the real political world, many such proposals are not enacted just with an eye towards the hypothetical future. They are often prompted by particular actions performed by actors with a particular ideological perspective—anti-abortion protesters, Westboro Baptist Church funeral picketers,[251] corporate contributors to election campaigns,[252] anti-globalization protesters,[253] and more. Yet so long as the restriction is facially neutral and seems focused on the noncommunicative effects of the speech (such as its intrusion on privacy, danger of quid pro quo corruption, or potential for violence), it is treated as content-neutral.

The same applies to laws limiting viewpoint discrimination by social media. Today, such laws might end up predominantly benefiting conservative speakers; but even today, they may also benefit Socialist or other left-radical speakers—and in the future, they may benefit other speakers who may run afoul of whatever restrictions social media corporations may impose in the future. (Wealthy business corporations, after all, are hardly certain to always take the side of the Left; one can certainly imagine them using their power in the future against speakers who are anti-capitalist or for that matter just anti-Big-Tech.)[254]

The laws target a particular harm, though we can debate how much of a harm it is: large social media corporations’ use of their economic power to unduly influence political debate. They do so by equally protecting all speakers’ viewpoints. That is true even if some of those viewpoints may be seen as practically needing less protection right now (though they might need such protection in the future), and even if the laws’ supporters were motivated by the common political desire to protect their political friends.

 

[229] PruneYard, 447 U.S. at 87.

[230] 475 U.S. 1, 28 (1986).

[231] See, e.g., Online Freedom and Viewpoint Diversity Act, S. 4534, 116th Cong., sec. 2(1)(b)(II) (2020) (exempting from the common-carrier-like requirement speech “promoting self-harm” or “promoting terrorism”); Online Content Policy Modernization Act, S. 4632, 116th Cong., sec. 201(B)(i)(II) (same).

Of course, Rumsfeld v. FAIR held that the law may compel universities to selectively allow access to military recruiters, without compelling them to allow access to critics of military recruitment. For a discussion of how this fits with the Court’s generally viewpoint-neutrality mandate for compelled access, see Volokh, supra note 114, at 373–75.

[232] Batchelder v. Allied Stores Int’l, Inc., 445 N.E.2d 590 (Mass. 1983); Waremart, Inc. v. Progressive Campaigns, Inc., 989 P.2d 524, 528 (Wash. 1999).

[233] Glovsky v. Roche Bros. Supermarkets, 17 N.E.3d 1026 (Mass. 2014).

[234] Waremart, 989 P.2d at 528 (citing Southcenter Joint Venture v. Nat’l Democratic Pol’y Comm., 780 P.2d 1282, 1290 (Wash. 1989)); Glovsky, 17 N.E.3d at 1030 n.4.

[235] 29 U.S.C. §§ 157, 158(a)(1), 158(a)(3), 158(b)(1)(A), 158(b)(2); Republic Aviation Corp. v. NLRB, 324 U.S. 793 (1945); Sears, Roebuck & Co. v. Carpenters, 436 U.S. 180, 204 (1978).

[236] Ralphs Grocery Co. v. United Food & Com. Workers Union Loc. 8, 290 P.3d 1116 (Cal. 2012).

[237] Waremart Foods v. NLRB, 354 F.3d 870, 874-75 (D.C. Cir. 2004).

[238] 47 U.S.C. §§ 312(a)(7), 315(b).

[239] Cf. Reed v. Town of Gilbert, 576 U.S. 155, 157 (2015) (“laws favoring some speakers over others” are treated as content-based “when the legislature’s speaker preference reflects a content preference” (citation and internal quotation marks omitted)).

[240] See Eugene Volokh, Private Employees’ Speech and Political Activity:‌ Statutory Protection Against Employer Retaliation, 16 Tex. Rev. L. & Pol. 295 (2012).

[241] Id. at 313.

[242] Id. at 326.

[243] See, e.g., 29 U.S.C. § 660(c) (OSHA violations); 18 U.S.C. § 1514A(a) (securities law violations); 42 U.S.C. § 2000e-3(a) (employment discrimination law violations).

[244] See supra Part I.B.

[245] See, e.g., Jessica Guynn, Facebook While Black: Users Call It Getting ‘Zucked,’ Say Talking About Racism Is Censored As Hate Speech, USA Today, May 1, 2019, at 1B.

[246] See id.

[247] 487 U.S. 474, 476 (1988).

[248] Even if you think the council members and their constituents in Brookfield, Wisconsin (the Milwaukee suburb from which Frisby came) were likely not deeply hostile to the viewpoint of the picketers, and only objected to their mode of expression, similar ordinances may of course be enacted in strongly pro-abortion-rights towns as well. See, e.g., Tony Perry, Lawmakers Target Anti-Abortion Tactic, L.A. Times, May 10, 1993 (discussing similar ordinances enacted in various California towns).

[249] 530 U.S. 703, 724–25 (2000) (citations omitted). I think the ordinance in Hill might well be properly seen as content-based for other reasons, see id. at 742–44 (Scalia, J., dissenting), but I think the Court was right to conclude that it wasn’t content-based “simply because its enactment was motivated by the conduct of the partisans on one side of a debate.”

[250] McCullen v. Coakley, 573 U.S. 464, 480 (2014).

[251] See Phelps-Roper v. City of Manchester, 697 F.3d 678 (8th Cir. 2012) (en banc) (upholding a restriction on such picketing); Phelps-Roper v. Strickland, 539 F.3d 356 (6th Cir. 2008) (same). “[T]he ‘plain meaning of the text controls, and the legislature’s specific motivation for passing a law is not relevant, so long as the provision is neutral on its face.'” 697 F.3d at 688 (quoting Phelps-Roper v. Nixon, 545 F.3d 685, 691 (8th Cir.2008)).

[252] FEC v. Beaumont, 539 U.S. 146, 152 (2003) (upholding ban on direct contributions by corporations to candidate campaigns). Citizens United v. FEC struck down a ban on independent corporate expenditures, but didn’t reconsider the constitutionality of the ban on direct corporate contributions. 558 U.S. 310, 358–59 (2010).

[253] Menotti v. City of Seattle, 409 F.3d 1113, 1128–29(9th Cir. 2005).

[254] I thus disagree with NetChoice, LLC v. Moody, No. 4:‌21CV220-RH-MAF, 2021 WL 2690876, *10 (N.D. Fla. June 30, 2021), which reasoned that:‌

The plaintiffs assert, too, with substantial factual support, that the actual motivation for this legislation was hostility to the social media platforms’ perceived liberal viewpoint. Thus, for example, the Governor’s signing statement quoted the bill’s sponsor in the House of Representatives:‌ “Day in and day out, our freedom of speech as conservatives is under attack by the ‘big tech’ oligarchs in Silicon Valley. But in Florida, we said this egregious example of biased silencing will not be tolerated.” Similarly, in another passage quoted by the Governor, the Lieutenant Governor said, “What we’ve been seeing across the U.S. is an effort to silence, intimidate, and wipe out dissenting voices by the leftist media and big corporations… . Thankfully in Florida we have a Governor that fights against big tech oligarchs that contrive, manipulate, and censor if you voice views that run contrary to their radical leftist narrative.” This viewpoint-based motivation, without more, subjects the legislation to strict scrutiny, root and branch.

See also Szóka & Barthold, supra note 10 (making a similar argument).

A law banning residential picketing wouldn’t be rendered viewpoint-based simply because its backers were especially incensed by anti-abortion residential picketers, or talked about how “day in and day out, our residential privacy is under attack by anti-abortion fanatics.” That the legislators’ worries about residential privacy, which lead to a general residential picketing ban, may have been prompted by anti-abortion picketers doesn’t render that general residential picketing ban viewpoint-based. Likewise, that the legislators’ worries about platforms’ “censor[ing]” and “silenc[ing]” users are prompted by perceived anti-conservative restrictions doesn’t render a general restriction on such platform “censorship” viewpoint-based.