Social Media and the Right to Free Speech

There is a common misconception that social media sites are infringing on one’s First Amendment rights. Take, for example, Twitter, Facebook, and YouTube blocking/suspending Trump’s account.

Supporters of the president decried this monopoly and abuse of power as running afoul of the First Amendment, while his opposers justified the companies’ right to block any person they deem violating their policies.

Photo by Brian Wangenheim on Unsplash

It is true social media companies — like Twitter and Facebook — routinely infringe on one’s ability to exercise free-speech. As the law currently stands, they can do so because these private entities are not bound by the First Amendment.

Even a Monopoly Created by a Private Company Does Not Infringe on the First Amendment

The Public Forum Analysis

Both republicans and democrats may find it ironic that the current protections given to companies like Twitter originate from the conservative Justices, particularly Justice Kavanaugh — the Trump Supreme Court nominee vehemently opposed by the Democrats — who wrote the majority opinion in Manhattan Community Access Corp. v. Halleck, 139 S. Ct. 1921 (2019) (dissented by the “liberal-leaning” Justices Sotomayor, Ginsberg, Breyer, Kagan).

In that case, the Court held that private companies are not state actors and thus their platform cannot be considered as a “public forum” within the meaning of the First Amendment. The Court’s rationale stems from the long-standing precedent that a private entity can qualify as a state actor when it performs a traditional, exclusive public function or is compelled by/joins the government to perform a particular action.

Per the Court’s view “traditional” and “exclusive public function” needs to be narrowly construed. Examples that embroil a private actor to the First Amendment are below.

Private Entity Qualifying as a State Actor

1. Running elections. See Terry v. Adams, 345 U.S. 461(1953); Smith v. Allwright, 321 U.S. 649 (1944); Nixon v. Condon, 286 U.S. 73 (1932).
2. Governing a company town. See Marsh v. Alabama, 326 U.S. 501 (1946).
3. Outsourcing a government obligation(e.g., providing medical care to prison inmates). See West v. Atkins, 487 U.S. 42 (1988).
4. Private theater leased to the city. See Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546 (1975).

Private Entity Not Qualifying as a State Actor

1. Running sports associations and leagues. See National Collegiate Athletic Assn. v. Tarkanian, 488 U.S. 179 (1988); San Francisco Arts & Athletics, Inc. v. United States Olympic Comm., 483 U.S. 522 (1987).
2. Administering insurance payments. See American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40 (1999).
3. Operating nursing homes. See Blum v. Yaretsky, 457 U.S. 991 (1982).
4. Providing special education. See Rendell-Baker v. Kohn, 457 U.S. 830 (1982).
5. Representing indigent criminal defendants. See Polk County v. Dodson, 454 U.S. 312 (1981).
6. Resolving private disputes. See Flagg Bros., Inc. v. Brooks, 436 U.S. 149 (1978).
7. Supplying electricity. See Jackson v. Metropolitan Edison Co., 419 U.S. 345 (1974).
8. Shopping center. See Hudgens v. Nat’l Labor Relations Bd., 424 U.S. 507 (1976).

Ability to Exercise Free Speech Can Be Distinguished from the Right to Do So

Photo by Markus Spiske on Unsplash

As can be noted, many functions that are generally taken for granted (e.g., electricity, special education programs, shopping at malls, etc.) are not traditionally and exclusively performed by the government. While Twitter and Facebook might be providing a forum for free speech, in and of itself, that is not sufficient to transform these private companies into state actors. The Supreme Court holds the position that it is not the government’s function to provide “forums for public expression, politics, information, or entertainment.” See Manhattan Community, 139 S. Ct. at 1930.

Even a monopoly created by a private company does not infringe on the First Amendment — unless the private entity is performing a traditional, exclusive public function.” Id. at 1931 (emphasis added).

It is important to note a private entity’s right to exclude patrons for expressing “unwanted views” (e.g., removing a customer or dinner guest, right to refuse service, etc.) is beyond the scope of the First Amendment. See id. at 1936.

Facebook and Twitter Provide a Platform to Engage in Free Speech

The Supreme Court has recognized that social media companies provide forum(s) for public expression where users can engage in protected First Amendment activity. Quoting Justice Kennedy:

Social media offers “relatively unlimited, low-cost capacity for communication of all kinds.” [citation] On Facebook, for example, users can debate religion and politics with their friends and neighbors or share vacation photos. … And on Twitter, users can petition their elected representatives and otherwise engage with them in a direct manner. … [S]ocial media users employ these websites to engage in a wide array of protected First Amendment activity on topics “as diverse as human thought.” [citation].

Packingham v. North Carolina, 137 S. Ct. 1730, 35–36 (2017).

‘Control of Information’ Equates to ‘Control of Thoughts’

Therefore, there can be no doubt that by blocking or suspending accounts Facebook and Twitter routinely infringe on “activities” that are also protected by the First Amendment. However, Manhattan Community holds that providing a public forum does not bound a private entity to the First Amendment.

In other words, according to the US Supreme Court, these websites are providing their services to the public to engage in free speech, but are not required to do so (because it is not a traditional government function to provide avenues for public expression). Further, being a monopoly is not a factor that can be considered under the First Amendment analysis.

Going Forward

Reasonable minds cannot disagree that social media companies wield enormous power. ‘Control of information’ equates to ‘control of thoughts’. The constant and non-stop bashing of the (soon-to-be-ex) president by the media and suppression of dissenting ideology should therefore be of concern to anyone who champions free speech. After all, in a free democratic society no actor — whether public or private — should be able to curtail opinions they disagree with, regardless of how demagogic or prejudice one may find them. Dissent is the moral fiber of free speech.

While the conservative justices of the Court have held that there are “important differences between cyberspace and the physical world” and thus the internet cannot be compared to public streets or parks (Packingham, 137 S. Ct. at 1743), given the current political climate perhaps the Court would be inclined to change its position.

Rohit Chhabra is a San Francisco, California based patent and defamation attorney.

Originally published at https://www.clfip.com on January 13, 2021