Social Media and the First Amendment

Layout by Jackie Ng

Whether we like it or not, it is hard to deny that social media has transformed our modes of communication, in ways that were unheard of 20-30 years ago. Former Supreme Court Justice Anthony Kennedy recognized this point, affirming that “…social media in particular…” has been one of “…the most important places (in a spatial sense) for the exchange of views.”[1] Jack Dorsey, the founder and CEO of Twitter, reflected this when he referred to his platform as a “digital public square” in a 2018 Senate Intelligence Committee hearing. Despite the monumental impact these platforms continue to play, they have also faced unmistakable backlash from prominent users, and several high-ranking politicians, over the implementation of their content-moderation policies. Though users have challenged the ability of providers to change or remove existing content, current federal law does not offer much recourse for those claiming that they’ve been wronged.

Two formidable barriers offer substantial protection to social media companies: a denial of First Amendment application to these private companies (under the state action requirement), and the protections in Section 230 of the Communications Decency Act.[2] With increasing resentment of these requirements, there have been increasing calls to reshape existing federal law by scrapping Section 230 altogether, or by applying specific First Amendment frameworks to the operation of these sites. Although the former proposal has gained more traction in political discussions, there is much to be said about the proposed First Amendment frameworks, and the nuances of applying free speech law to online forums.

Before diving into the application of free speech doctrine to social media, it is important to understand the application of relevant case law. The First Amendment states that “Congress shall make no law…abridging the freedom of speech, or of the press.” In 1925[3], the Supreme Court extended the reach of the Amendment to state governments through the Fourteenth Amendment, passed after the Civil War.

Case law also recognizes three types of forums[4] where speech may be regulated to varying degrees. First is the traditional public forum, which includes sidewalks, parks, and town squares. Next are limited public forums, with areas such as council meeting halls, school meeting rooms, etc. Finally, there is the nonpublic forum, comprised of police stations, government employee offices, military bases, and other similar spaces. When it comes to regulating the content of speech, a government may only impose a limited number of regulations in traditional public forums, and it may impose broad and limiting restrictions in non-public forums. While a government may enact certain view-point neutral restrictions (such as the time, place, and manner for speaking), it is, however, largely prohibited from discriminating against viewpoint, except under a narrow set of circumstances.

Although these rules were developed for physical spaces, courts have applied the same concepts to virtual spaces, depending on the type of medium being regulated.[5] For example, while the Supreme Court has tolerated certain restrictions on broadcast and cable media, it has not applied those same regulations to the internet. In doing so, the Court rejected the argument that the internet was analogous to broadcast media, due to its differing characteristics.[6] With the relevant free speech law established, I will examine the three frameworks that have been proposed for placing social media companies under the boundaries of the First Amendment.

Although the First Amendment is applied to government actors it has been extended to private parties in certain instances. The clearest example of this occurred in a 1946 case known as Marsh v. Alabama, where the Supreme Court held that a company-owned town could not prevent the distribution of religious literature to its citizens. Writing for the majority, Justice Hugo Black held that despite its private character, the town “…ha[d] all the characteristics of any American town,” including residences, businesses, streets, utilities, public safety officers, etc.[7] Because of this factor, “…the public…[had] an identical interest in the functioning of the community in such manner that the channels of communication remain free.”[8] Since the company town performed several “public function(s),” the Court held that it was the equivalent of a state actor, meaning that it could not restrict speech solely because it was privately operated. The Marsh opinion was also highly significant in First Amendment law, establishing the public function exception to companies performing important state powers.

Over time, the Court limited the exception to the elements of particular cases. Consequently, privately owned parks[9] and shopping centers[10] (in limited instances) fell within the exception, while private schools[11] were left outside its reach. Recently, lower Courts have extended the exception to include additional functions not exclusively held by the State. In 2004, for example, the Second Circuit noted that a function assumed by a private actor must have been “…exclusive, or near exclusive...”[12] to qualify for the exception.

Despite the confusing and, in many instances, contradictory application of the public function exception, some scholars have desired for it to be applied to additional private actors such as social media companies. In 1985 for example, Erwin Chemerinsky, a professor at UC Berkeley School of Law, argued that “[a]ny infringement of freedom of speech, be it by a public or private entity, sacrifices [the value of free expression]…If employers can fire employees and landlords can evict tenants because of their speech, then speech will be chilled and expression will be lost.[13] Likewise, Benjamin F. Jackson has argued that social media companies fit within the narrow public function requirement, analogizing them to “public squares and meeting places” which “[have] the primary purpose of serving as a forum for public communication and expression…”[14]

Chemerinsky and Jackson’s words, while persuasive to some, have remained unconvincing to lower court judges, who have repeatedly held that social media companies do not fit within the public function exception. Specifically, judges have stipulated that operating a public network does not subject a private entity to the First Amendment[15], and that the “dissemination of news and fostering of debate” is not a public function exclusively held by the government.[16] In the most recent case, Manhattan Community Access Corp. v. Halleck, the Supreme Court held that the operation of public access cable channels by a private non-profit was not a “traditional, exclusive public function.”[17] While listing activities falling within the public function category, such as “…running sports associations and leagues, administering insurance payments, operating nursing homes [and] providing special education…”[18] it argued that “[p]roviding some kind of forum for speech is not an activity that only governmental entities have traditionally performed.”[19] Based upon these rulings, it is highly unlikely the public function exception will be applied to social media companies any time soon.

Another framework courts could apply is analogizing social media companies to industries such as broadcast media or cable television, which have traditionally been subjected to greater regulation of speech. Examples of these regulations include government licenses, federal statutes treating providers as common carriers, heightened legal duties, and other significant requirements. Oftentimes, these requirements have been justified by a heightened governmental interest in regulating these industries.

In 1969, the Supreme Court established the framework for regulating broadcast media in Red Lion Broadcasting Co. v. FCC. In that case, the high Court upheld the FCC’s “fairness doctrine” rule, requiring broadcasters to allow political candidates to respond to personal attacks on air. Writing for the majority, Justice White held that “[i]n view of the scarcity of broadcast frequencies, the government’s role in allocating those frequencies, and the legitimate claims of those unable without governmental assistance to gain access to those frequencies for expression of their views…”[20] is constitutional. In a later case, Turner Broadcasting Systems v. FCC, the high Court declined to extended special deference to government regulations of cable television. Justice Kennedy, writing for the majority, explained that because cable television “does not suffer from the inherent limitations [in terms of frequencies]…the unique physical characteristics of cable transmission…do not require the alteration of settled…First Amendment jurisprudence.”[21]

With the advent of the dotcom boom in the ‘90s, the Justices declined to apply general broadcast media regulations to the internet. The case concerning these regulations, Reno v. ACLU, centered around a federal law that criminalized “indecent” or “patently offensive”  speech that risked being viewed by a minor. Justice Stevens outlined several reasons for this decision, noting that the internet was “hardly…a ‘scarce’ expressive commodity,” that it was not “as ‘invasive’ as radio or television,” and because it had not historically “been subject to the type of government supervision and regulation that ha[d] attended the broadcast industry.”[22] At the time, the decision was hailed for protecting “the most participatory form of mass speech yet developed.”

Scholars have criticized the Reno decision in light of the modern development of the internet. As law professors Oren Bracha and Frank Pasquale have explained, the modern internet has “reproduce[d] the traditional speech-hierarchy of broadcasting,” where “small, independent speakers [are] relegated to an increasingly marginal position, while a handful of commercial giants capture the overwhelming majority of users’ attention and reemerge as the essential gateways for effective speech.”[23] Genevieve Lakier, a scholar of the Knight First Amendment Institute, has argued that “[l]ike cable companies, search engines provide access to the speech of others,” and “exercise some degree of editorial discretion over whom they provide access to.”[24] Lower courts have not subscribed to Lakier’s sentiment, declining to apply this framework to social media cases. Oftentimes, this has resulted from the difficult task of answering what specific characteristics justify regulations, whether these companies exercise a “bottleneck monopoly power,” and if a “scarcity” problem currently exists amongst these entities.

The third and final framework most often used for analyzing social media sites is that of the newspaper editor. Under this standard, courts could grant substantial free speech protections to the social media companies, as discretionary, editorial judgments are an exercise of protected speech rights. In the case Miami Herald Publishing Co. v. Tornillo, the Supreme Court solidified this free speech standard by ruling that a newspaper could not be forced to print responses to criticism from particular publishers of that newspaper. Writing for the unanimous bench, Chief Justice Burger noted that the Florida law in question “…exacte[d] a penalty on the basis of the content of the newspaper…[forcing them] to tak[e] up space that could be devoted to other materials.”[25] By doing so, the state was depriving newspapers of “…editorial control and judgment…,”[26] a right afforded to the press by the First Amendment.

In addition to the editorial judgments of newspapers, the Court has also recognized its application towards other entities, observing that “compelling a private corporation to provide a forum for views other than its own may infringe the corporation’s freedom of speech.”[27] The only exception to this rule is where granting access to a third party does not affect or alter the entity’s own speech in a meaningful or significant way.[28]

Though lower courts have not argued that social media companies exercise editorial judgment, they have stated that search engines exercise editorial judgment when deciding whether and how to present content in search results.[29] In line with this illustration, commentators have argued that when companies such as Facebook promote certain viewpoints over others or decide to remove particular content, the company is exercising editorial judgment about how to present speech on its platform. Despite this comparison, there have been few court decisions evaluating whether a social media site, by virtue of editing and organizing protected speech, is itself exercising free speech rights. As one federal appellate court indicated, this is due to the fact that even if these entities engage in editorial discretion, it also may not be a “First Amendment speaker” if it neutrally and indiscriminately transmits “any and all users’ speech.”[30]

Social media is not the first technology that has raised important constitutional questions. Throughout the 20th century, our legal system has decided the scope of the rights for all Americans alongside our rapidly changing technological landscape. As these massive entities continue to spark controversy, however, it may only be a matter of time before the law is modified to account for various questions surrounding social media and the First Amendment.

Works Cited

[1] Packingham v. North Carolina, 582 U.S. 137 S.Ct. 1730, 1736 (2017)

[2] Specifically Sections 230(c)(1) and (c)(2)

[3] Gitlow v. New York, 268 U.S. 652 (1925)

[4] Perry Educators Association v. Perry Local Educators, 460 U.S. 37 (1983)

[5] Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 557 (1975)

[6] Reno v. ACLU, 521 U.S. 844, 868-869 (1997)

[7] Marsh v. Alabama, 326 U.S. 501, 502 (1946)

[8] 326 U.S. 501, 508 (1946)

[9] Evans v. Newton, 382 U.S. 296 (1966)

[10] Amalgamated Food Employees v. Logan Valley Plaza, 391 U.S. 308 (1968)

[11] Jackson v. Metro. Edison Co., 419 U.S. 345, 352 (1974)

[12] Horvath v. Westport Library Association, 362 F.3d 147, 151 (2d Cir. 2004)

[13] Chemerinsky, Erwin. "Rethinking State Action." Northwestern University Law Review, vol. 80, no. 3, 1985-1986, p. 533

[14] Jackson, Benjamin F. "Censorship and Freedom of Expression in the Age of Facebook." New Mexico Law Review, vol. 44, no. 1, Spring 2014, p. 146

[15] Cyber Promotions v. AOL, 948 F. Supp. 436, 445 (E.D. Penn. 1996)

[16] Prager Univ. v. Google LLC, Case No. 17-CV-06064-LHK (N.D. Cal. Mar. 26, 2018)

[17] Manhattan Community Access Corp. v. Halleck, 587 U.S. ___, 2 (2019)

[18] 587 U.S. ___,  7 (2019)

[19] 587 U.S. ___,  9 (2019)

[20] Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 400 (1969)

[21] Turner Broadcasting Systems v. FCC, 512 U.S. 622, 639 (1994)

[22] Reno v. ACLU, 521 U.S. 844, 868-870 (1997)

[23] Bracha, Oren, and Frank Pasquale. "Federal Search Commission - Access, Fairness, and Accountability in the Law of Search." Cornell Law Review, vol. 93, no. 6, September 2008, p. 1158-1159 

[24] Lakier, Genevieve, and Heather Whitney. The Problem Isn't the Use of Analogies but the Analogies Courts Use. 26 Feb. 2018, knightcolumbia.org/content/problem-isnt-use-analogies-analogies-courts-use.

[25] Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 2(b) (1974)

[26] 418 U.S. 241, 258 (1974)

[27] Pacific Gas & Electric Co. v. Public Utilities Commission, 475 U.S. 1, 9 (1986).

[28] Pruneyard Shopping Center v. Robins, 447 U.S. 74, 88 (1984)

[29] Jian Zhang v. Baidu.Com Inc., 10 F. Supp. 3d 433 (S.D.N.Y. 2014)

[30] Rest. Law Ctr. v. City of N.Y., 360 F. Supp. 3d 192 (S.D.N.Y. 2019)