by Chris Arledge
Blue America and Red America agree on very little these days. But they seem to agree on one thing: the power of Big Tech. Democrats in Congress claim that the Big Tech companies are monopolies and must be broken up. Many left-of-center Americans blame Big Tech for propagating disinformation that they believe led to Donald Trump’s election in 2016. Many right-of-center Americans are angry that Big Tech suppressed a major news story from a mainstream newspaper about questionable financial dealings by the Democratic candidate’s son, and they claim that Big Tech is silencing conservative voices by de-platforming them.
The specific complaints are different on the left and right, but in this day of extreme polarization, the agreement is remarkable: most people agree that what Big Tech allows or doesn’t allow significantly impacts American democracy and culture. Like so much (too much) in American public life recently, the debate over Big Tech’s speech control has revolved around Donald Trump. This is unfortunate. For while a world without a Donald Trump Twitter account is, indeed, a better world, the fact that a handful of people can effectively muzzle even a billionaire President of the United States should give us all pause.
The reality is that the First Amendment’s free-speech protections are at risk; but these days, the primary risk does not come from the state. For probably the first time, a small group of private citizens—namely, those who run Facebook, Twitter, Amazon, Google, and Apple—have the unprecedented power to shape the national debate by deciding which news articles are seen, which issues will be promoted, and which viewpoints are available for public consumption. To give just one example, until late May of this year, Facebook was blocking news articles suggesting that the COVID virus escaped from a Chinese lab. Facebook, then, spent the better part of a year censoring a thesis that has been accepted as plausible by a large number of scientists on the most important news story in years.
This should not be happening. A free people should be no more comfortable with a small group of private citizens shaping the national discourse than we are with government shaping the national discourse. (Indeed, in some respects, the people, through the ballot box, have more control over the latter.) Courts should act now. If they do not, Congress should.
The primary free-speech protections come from the First Amendment to the United States Constitution and similar provisions in the state constitutions. These provisions almost universally apply to state action, which is no surprise, since these provisions were drafted at a time when only governments had the de facto power to regulate speech.
But there are exceptions to this state-action requirement, times when constitutional free-speech protections have been applied to private actors. For example, in Marsh v. Alabama, 326 U.S. 501 (1946), the United States Supreme Court held that constitutional free-speech protections applied to a company town—undeniably private property—and therefore permitted a resident there to distribute leaflets.
Whether the Supreme Court would extend Marsh (or its limited number of sister cases) to Big Tech is an open question. Generally, “a private entity may qualify as a state actor when it exercises ‘powers traditionally exclusively reserved to the State.’” Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921, 1928 (2019). Because “[p]roviding some kind of forum for speech is not an activity that only governmental entities have traditionally performed . . . a private entity who provides a forum for speech is not transformed by that fact alone into a state actor.” Id. at 1930. But determining who can participate in the national discourse through the primary means of communicating is the type of power traditionally exercised only by the state. It is only in recent years, because of the accident of modern technology, that a few, private actors can exercise such state-like powers.
And the importance of the forums that Big Tech controls is really beyond dispute. “While in the past there may have been difficulty in identifying the most important places (in a spatial sense) for the exchange of views, today the answer is clear. It is cyberspace—the ‘vast democratic forums of the Internet’ in general, and social media in particular.” Packingham v. North Carolina, 137 S. Ct. 1730, 1735 (2017). Because of the ability of a few, private actors to control what is, effectively, the modern public square, Justice Thomas has argued that the Court will need to re-assess the traditional rules: “Today’s digital platforms provide avenues for historically unprecedented amounts of speech, including speech by government actors. Also unprecedented, however, is the concentrated control of so much speech in the hands of a few private parties.” Thomas argued that, as a result, the Court “will soon have no choice but to address how our legal doctrines apply to highly concentrated, privately owned information infrastructure such as digital platforms.” Biden v. Knight First Amendment Inst. at Columbia Univ., 141 S. Ct. 1220, 1221 (2021) (Thomas, J., concurring).
Extending First Amendment protections to the major social media platforms will be a challenge under existing, federal law. The argument for extending constitutional free-speech protections to Big Tech is easier under the California Constitution. In Robins v. Pruneyard Shopping Ctr., 23 Cal. 3d 899, 910 (1979), the California Supreme Court noted that large shopping centers “can provide an essential and invaluable forum for exercising [speech and petition] rights.” And while federal law does not provide for free speech rights on private property, the California Constitution provides “greater protection than the First Amendment,” including the right to “speech and petitioning, reasonably exercised, in shopping centers even when the centers are privately owned.” Id.
Let’s be honest: Pruneyard is sloppy constitutional law. As was far too common in the Rose Bird era, the California Supreme Court reached its preferred policy decision with little if any analysis of the underlying constitutional text or history. Nevertheless, Pruneyard is still the law in California, and extending the holding to Big Tech is no extension at all. Indeed, the argument for applying the ruling to Big Tech is dramatically stronger than was the argument for applying the free-speech obligations to the shopping center in that case. Very few people need to engage in speech in a shopping center to be heard; practically everybody who wants to be heard must use social media. Controlling the social-media giants is far more of a threat to free speech than controlling Central Park and the surrounding sidewalks.
Therefore, the concerns that animated opinions like Marsh and Pruneyard are concerns that apply powerfully to Big Tech. And if the courts cannot (or will not) apply constitutional free-speech protections to Big Tech in order to protect open debate and free expression, then Congress should act.
Too much of the discussion on this topic concerns whether Congress should repeal Section 230 of the Communications Decency Act. There is no reason to repeal Section 230. Section 230, as intended, has led to the rapid growth of the internet, and it should be allowed to continue to do its job. Nor should Congress approve the Trump Justice Department’s proposed changes to Section 230, which go well beyond what is necessary to protect free speech. See U.S. Dep’t of Just., Section 230—Nurturing Innovation of Fostering Unaccountability? (June 2020), https://www.justice.gov/file/1286331/download. A very small tweak to Section 230 would be sufficient, a tweak that would affect only a tiny fraction of internet service providers. Congress should simply insert into Section 230 something like the following: “To benefit from these provisions, any provider or user of an interactive computer service with monopoly or near monopoly power must not engage in viewpoint discrimination.”
There are four benefits to such an approach. First, the new language would apply to a very small number of service providers. Grandma’s Facebook page would not come under its purview, and neither would the L.A. Times. The new provision would only apply to those firms who have the market power to set the terms of the national debate.
Second, this proposed revision would not open the internet to an avalanche of unsavory or unlawful content. Even the Big Tech companies could choose not to open their platforms to certain types of speech. They need not allow bestiality or pro-terrorism speech, for example. But to the extent they turn their platform into a public forum for certain types of speech—as they undoubtedly have when it comes to politics, philosophy, and public affairs—they will not be permitted to engage in viewpoint discrimination within that forum. They cannot, that is, place their thumbs on the scale to favor one viewpoint or another, one side or another, one political party (or candidate) or another.
Third, the rule would not unnecessarily impinge on the property or free-speech rights of Big Tech. Unlike permitting protestors or petitioners on real property—which can have a deleterious effect on the owner’s exercise of his property rights—prohibiting viewpoint-based discrimination where Big Tech has already created a public form involves no harm to the property owner at all. Nor does it force the service provider to engage in speech. Indeed, the whole theory underlying Section 230 is that service providers have immunity from the usual liability that can apply to publishers because the speech is not their speech. But if the speech is not theirs, why should service providers be permitted to control it by exercising viewpoint discrimination?
Fourth, and finally, the proposed language taps into well-developed bodies of law that courts are already used to applying. What constitutes a monopoly or near monopoly may not always be easy in practice, but the standards are well-developed, and courts are routinely asked to engage in this analysis. The same applies to viewpoint discrimination of speech, which has been fleshed out in the case law for many years.
Thus, the proposed language is narrow in scope, narrow in application, and taps into already existing bodies of case law.
Free speech on issues of national importance is fundamental in a republic. The Founders were right to prohibit the government from interfering with free speech. Now we must act so that private parties cannot, using new technologies, exercise their own government-like powers to censor. The fate of our country and institutions may hang in the balance.
Chris Arledge is the co-founder and managing partner of One LLP and the co-founder of Cicero’s Forum, which teaches advocacy to lawyers and non-lawyers. This article is derived from a chapter in the book Timeless Principles of Legal Advocacy, which Chris co-authored with his partner, Peter Afrasiabi. Chris can be reached at carledge@onellp.com.