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Human Rights

In the Age of Social Media, Expand the Reach of the First Amendment

by David L. Hudson, Jr.

The First Amendment only limits governmental actors—federal, state, and local—but there are good reasons why this should be changed. Certain powerful private entities—particularly social networking sites such as Facebook, Twitter, and others—can limit, control, and censor speech as much or more than governmental entities. A society that cares for the protection of free expression needs to recognize that the time has come to extend the reach of the First Amendment to cover these powerful, private entities that have ushered in a revolution in terms of communication capabilities.

While this article focuses on social media entities, the public/private distinction and the state action doctrine are important beyond cyberspace. The National Football League’s reaction to Colin Kaepernick and other players “taking a knee” during the playing of the National Anthem is a pristine example of private conduct outside the reach of the First Amendment under current doctrine. But the nature of those protests couldn’t seem more public and cries out for a re-evaluation of the state action doctrine and the importance of protecting speech.

Speaking of speech, two key justifications for robust protection of the First Amendment right to freedom of expression are the marketplace of ideas and individual self-fulfillment. These justifications don’t require governmental presence. Powerful private actors can infringe on free expression rights just as much as public actors.

The first justification, the marketplace of ideas, is a pervasive metaphor in First Amendment law that posits the government should not distort the market and engage in content control. It is better for people to appreciate for themselves different ideas and concepts. It is traced back to John Milton’s free speech tract Areopagitica (1644): “Let Truth and Falsehood grapple; whoever knew Truth put to the worse in a free and open encounter?”

Individual self-fulfillment, often associated with the liberty theory, posits that people need and crave the ability to express themselves to become fully functioning individuals. Censorship stunts personal growth and individual expansion.

The point here is that when an entity like Facebook engages in censorship, individuals don’t get to participate in the marketplace of ideas and are not allowed the liberty to engage in individual selffulfillment— just like when a governmental entity engages in censorship.

It is true that state action doctrine traditionally limits the application of the First Amendment to private actors. Earlier this year, a federal district court in Texas applied the traditional state action doctrine to dismiss a lawsuit filed by a private individual against Facebook. The court explained that “the First Amendment governs only governmental limitations on speech.” (Nyabwa v. Facebook, 2018 U.S. Dist. LEXIS 13981, Civil Action No. 2:17-CV-24, *2 (S.D. Tex.) (Jan. 26, 2018).)

After all, for about 140 years, the U.S. Supreme Court has explained that the Constitution and the protections it provides— aside from the Thirteenth Amendment’s ban on slavery and involuntary servitude— only limit governmental actors. Thus, traditional legal doctrine provides that private actors are not constrained by the Constitution generally. This is called the “state action” doctrine. It purportedly creates a zone of privacy and protects us from excessive governmental interference.

The Court developed the state action doctrine in the Civil Rights Cases of 1883. This case actually consisted of five consolidated cases in which private businesses egregiously excluded African-American plaintiffs from their privately owned facilities opened to the public (such as movie theaters, inns, amusement parks, and trains) on the basis of race. The plaintiffs contended that such exclusions violated the Equal Protection Clause of the Fourteenth Amendment. However,  the U.S. Supreme Court responded somewhat cavalierly “[i]t is state action of a particular character that is prohibited. Individual invasion of individual rights is not the subject-matter of the amendment.” (Civil Rights Cases, 109 U.S. 3, 11 (1883).) The Court said that there were no constitutional remedies available to these plaintiffs and that they would need to rely on the common law state protections. Sadly, there were no such state common law protections either. 

Only Justice John Marshall Harlan I, the so-called “Great Dissenter” for his solitary dissent in this case, Plessy v. Ferguson (1896), and other decisions, recognized that his colleagues were allowing the government a free pass to discriminate against persons of a particular race with regard to the use of public facilities. He wrote that the “discrimination practised by corporations and individuals in the exercise of their public or quasi-public functions is a badge of servitude” that Congress could rectify under its powers under the Thirteenth and Fourteenth Amendments. (Civil Rights Cases, 109 U.S. at 43 (1883) (J. Harlan, dissenting).)

But, in 2018, speech takes place online much more so than it does in traditional public forums, such as public parks and streets. People communicate on social networking sites, such as Facebook and Twitter, more than in any offline venues. The U.S. Supreme Court recognized this reality last year in Packingham v. North Carolina (2017): “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).)

In his opinion for the Court, Justice Anthony Kennedy elaborated that the  expansion of social media has contributed to a “revolution of historic proportions.” Id. at 1736. In other words, social media networking sites have become the modern- day equivalent of traditional public forums like public parks and public streets. 

This societal development and change in communications capacities require that the antiquated state action doctrine be modified lest the law become ossified. The time has come to recognize that the reach of the First Amendment be expanded. 

When a private actor has control over online communications and online forums, these private actors are analogous to a governmental actor.

This is not a novel thesis. Many others have advocated for this approach. Many legal scholars have recognized that when a private actor has control over online communications and online forums, these private actors are analogous to a governmental actor. For example, legal commentator Benjamin F. Jackson cogently explained in a 2014 law review article that “[P]ublic communications by users of social network websites deserve First Amendment protection because they simultaneously invoke three of the interests protected by the First Amendment: freedom of speech, freedom of the press, and freedom of association.” (Benjamin F. Jackson, Censorship and Freedom of Expression in the Age of Facebook, 44 N.M. L. Rev. 121, 134 (2014).)

Decades earlier, the brilliant legal scholar Erwin Chemerinsky argued that the state action doctrine should be revisited and abandoned. He wrote that private censorship can be as harmful as governmental censorship. As applied to freedom of speech, he posited: 

Freedom of speech is defended both instrumentally—it helps people make better decisions—and intrinsically—individuals benefit from being able to express their views. The consensus is that the activity of expression is vital and must be protected. Any infringement of freedom of speech, be it by public or private entities, sacrifices these values. In other words, the consensus is not just that the government should not punish expression; rather, it is that speech is valuable and, therefore, any unjustified violation is impermissible. If employers can fire employees and landlords can evict tenants because of their speech, then speech will be chilled and expression lost. Instrumentally, the “marketplace of ideas” is constricted while, intrinsically, individuals are denied the ability to express themselves. Therefore, courts should uphold the social consensus by stopping all impermissible infringements of speech, not just those resulting from state action. (Erwin Chemerinsky, Rethinking State Action, 80 N.W. U. L. Rev. 503, 533–34 (1985).) 

Already, some state high courts interpret free expression provisions in state constitutions to provide protection to individuals involving private actors. For example, a few states apply their free expression protections at privately owned shopping malls. The New Jersey Supreme Court has applied the free expression provision of its state constitution to allow individuals to challenge restrictive bylaw provisions of private homeowner associations. The state high court wrote: “In New Jersey, an individual’s affirmative right to speak freely is protected not only from abridgement by government, but also from unreasonably restrictive and oppressive conduct by private entities in certain situations.” (Mazdabrook Commons Homeowners Association v. Khan, 210 N.J. 482, 493 (2012).)

The U.S. Supreme Court should follow these examples from state supreme courts to relax the state action doctrine. The Court should interpret the First Amendment to limit the “unreasonably restrictive and oppressive conduct” by certain powerful, private entities—such as social media entities—that flagrantly censor freedom of expression. 

David L. Hudson Jr. is a Justice Robert H. Jackson Legal Fellow for the Foundation for Individual Rights in Education (FIRE). He also is a First Amendment Fellow for the Freedom Forum Institute. He is the author, coauthor, or coeditor of more than 40 books, including First Amendment: Freedom of Speech (Thomson Reuters, 2012), The Encyclopedia of the First Amendment (Sage, 2008), and Let the Students Speak!: A History of the Fight for Freedom of Expression in American Schools (Beacon Press, 2011).