July 2021 Cover Story - The First Amendment Limits State Actors—Not Private Companies

by Michael I. Katz

Free speech rights are less at risk from Big Tech, than from the suggestion that courts be empowered to bar Big Tech from engaging in viewpoint discrimination. The First Amendment restrains the government and protects private actors. The government cannot regulate speech, even hate speech or the expression of views deemed inimical by the broader society. Private entities might qualify as state actors subject to free speech regulation if they perform a traditional, exclusive public function, such as running a company town in the Marsh case (Marsh v. Alabama, 326 U.S. 501 (1946)). But offering people a forum to speak is not a function traditionally performed exclusively by the state. Treating social media companies like the state merely because they provide a forum for speech would substantially dilute the state action requirement. Adopt this rule and watch how quickly our own speech rights erode. This is all to say that the need for circumspection is palpable when considering whether viewpoint discrimination by social media merits restraint, constitutional or otherwise.

The Supreme Court apparently agrees. In a 2019 decision, Manhattan Community Access Corp. v. Halleck, Justice Kavanaugh wrote: “[W]hen a private entity provides a forum for speech, the private entity is not ordinarily constrained by the First Amendment because the private entity is not a state actor. The private entity may thus exercise editorial discretion over the speech and speakers in the forum.” 139 S. Ct. 1921, 1930 (2019).

Before we travel down that road of using Pruneyard (Pruneyard Shopping Ctr., 23 Cal. 3d 899 (1979)) in California cases to expand the state action requirement, under a theory that state constitutions can be “more protective” of speech than the U.S. Constitution, we should first ask whether viewpoint discrimination by Big Tech poses a genuine threat to free speech at all. There is no empirical evidence for the assertion that owners of social media control speech in a manner that is systematically biased toward any particular viewpoint. All we have is anecdotal evidence, which often appears to be self-interested or politically motivated.

But even if Big Tech did exhibit such bias, wouldn’t that itself be an exercise of free speech rights? The rules of engagement established by each social media platform constitute an exercise of free speech in their own right, which should be given the full protection of the First Amendment. Social media companies should be free to set the ground rules on which they invite people onto their platforms. That includes what speech is proper or not. This, in turn, promotes free speech rather than detracts from it. (A good source for the platform rules of major social media companies can be found at the Freedom Forum Institute website. See Lata Nott (updated by Brian Peters), Free Expression on Social Media, www.freedomforuminstitute.org/first-amendment-center/primers/free-expression-on-social-media/#hate_go.)

This raises a second question. Before we contemplate giving courts the power to bar viewpoint discrimination by social media in the name of protecting speech, shouldn’t we first consider whether doing so would in fact diminish speech? If courts were to apply Pruneyard to social media companies (or if Section 230 (of the Communications Decency Act) were modified to allow lawsuits to be filed against social media for engaging in viewpoint discrimination), there is some question whether this business model could be sustained. Social media rules of engagement protect users from harassment, cyberbullying, hate speech, or other conduct which, if allowed free reign, would make the platform much less inviting or even unsafe. Applying Pruneyard (or modifying Section 230) in this context, would substantially weaken the ability of social media sites to attract users. This likely would result in less diversity of expression, not more. And what if Big Tech, to avoid regulation, retreats behind paywalls? The state of free speech would surely be diminished, not enhanced, by this exercise. Whatever speech was left on the public side of the paywall would devolve into Mad Max on the internet superhighway.

Extending Pruneyard to social media is unsound from the standpoint of free speech jurisprudence in any event. In Pruneyard, the California Supreme Court applied the state’s constitutional free speech clause to require a shopping center to permit expressive activity on its property. The idea is that shopping centers had become the equivalent of the public square. In affirming this case, the United States Supreme Court deferred to the state’s powers both to regulate property and to apply its own constitution to expand free speech protections. Pruneyard gave little thought to the free speech rights of the property owner, reasoning they were not at issue because there was no danger of anyone imputing the protester’s point of view to the owner. That is a dubious reasoning. It disregards that the owner of private property should be able to decide to what expressive uses that property is deployed. One might also question whether the government’s takings power should extend to compelling one private citizen to lend its property for expressive use by another.

In any event, Pruneyard’s reasoning does not easily apply to social media. Unlike shopping malls, social media companies are directly in the business of curating speech environments, which they do by adopting rules for using their platforms. These rules, in turn, are protective of their users’ ability to engage in speech. Moreover, although social media has been likened to the new public square, they do not have the characteristic of holding a monopoly on the space in which speech is exercised. Big social media companies are not like the company town in Marsh. They are not the only game in town, much less the town itself. Today, we benefit from a proliferation of speech outlets, including a multiplicity of social media platforms, traditional and cable news, the blogosphere, and so many diverse means by which we can express and debate increasingly diverse points of view. We are exposed to more discourse than ever, whether we like it or not. If the rules of a particular platform seem hostile to your viewpoint, you can easily find another social media outlet in which to express yourself. While sitting at your desk, one click of a mouse transports you to any number of public squares, instantly.

At bottom, applying Pruneyard to social media is a bad idea because it would invite courts, i.e., the state, to decide what speech rules are appropriate for a privately-owned platform. This turns on its head the very purpose of the state action doctrine—to keep the state out of the business of regulating the speech of private actors. Moreover, in practice, it is easy to anticipate that aggrieved users would file multiple suits, hoping that some court will find viewpoint bias in an action taken for seemingly neutral reasons. This is not a recipe for viewpoint protection. It is an invitation to the courts themselves to become more political.

It therefore should be of little surprise that in fifty years since Pruneyard was decided, no California court has extended its reasoning beyond shopping centers. And only the Supreme Court of New Jersey, perhaps the most activist court in the country, has chosen to follow Pruneyard, which at this point is an anomaly in free speech jurisprudence.

 The suggestion is also made that, if the courts will not enforce viewpoint neutrality, then Congress should step in and modify Section 230. Section 230(c)(2) provides immunity from civil liabilities for information service providers that remove or restrict content from their services they deem “obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected,” as long as they act “in good faith” in this action. There are numerous bills proposed by legislators on the left and the right, aimed at scaling back or qualifying the protections of Section 230. Many of these bills propose to eliminate or curtail the ability of social media companies to regulate content. If passed, many of these bills could erode or eliminate the current user-driven content model of social media that we have come to know and depend on.

These are still early days of social media, as evidenced by the continuing evolution of the rules of engagement on these platforms. While Big Tech needs reforming, and it needs to evolve, modifying Section 230 to require viewpoint neutrality, even if targeting only a few of the largest companies, seems like an improvident proposal with outsized consequences we might regret. Amending Section 230 might avoid constitutional folly, but the effect on free speech rights would still be unsalutary.         


Michael I. Katz is a partner at Maschoff Brennan who specializes in commercial and intellectual property litigation. He worries that one day the adage “la plus ca change, la plus c’est la meme chose,” may no longer be true. He can be reached at mkatz@mabr.com.