Thursday, December 8, 2022 | Back issues
Courthouse News Service Courthouse News Service

Will the Dawn of Social Media Regulation Pass Constitutional Muster?

Federal courts have long been balancing individuals' free speech rights with the rights of private companies that control venues of expression. The battle over Florida's new social media regulation stands to ink a new chapter in the saga.

(CN) --- More than 70 years ago, the U.S. Supreme Court handed down its decision in Marsh v. Alabama, finding that a Jehovah's Witness had a First Amendment right to hand out religious material in the privately held town of Chickasaw, a small suburb owned by Gulf Shipbuilding.

The First Amendment bars the government --- not private companies --- from trampling on free speech. But the high court found that through its control of the Alabama town, Gulf Shipbuilding was functioning like a governmental body and therefore had to honor free speech rights within the town's borders.

The decision marked the start of a decades-long balancing act in which modern-day federal courts have weighed companies' rights to control their privately owned venues against the rights of those who want to access those venues to exercise free speech.

It's a constitutional push-and-pull that is now taking center stage in the legal battle over Florida's new law regulating social media censorship.

Signed by Governor Ron DeSantis on May 24, the law prohibits large social media companies from shutting down political candidates' accounts. It also restricts the companies from hiding posts by or about candidates and gives common users a route to sue for being booted off social media.

The measure was part of a wave of anti-censorship proposals pushed by Republican legislators across several states after President Donald Trump was suspended from Twitter and Facebook in the wake of the Jan. 6 riot at the Capitol Building.

At the signing ceremony for the first-of-its-kind regulation, DeSantis likened Twitter and Facebook to the company-owned town, claiming "these platforms have become our public town square." The governor's office later issued a statement to Courthouse News, saying that "Big Tech” companies are "operating as a de facto arm of government" by hosting the primary forum for public debate.

"The bottom line is: Big Tech is in some ways more powerful than government, and certainly less accountable. Free speech is a sacred right for all Americans. It is recognized that government has a role in protection against discrimination, and this law is within that authority to rein in a powerful entity that oversteps individuals’ free speech rights," the statement said.

Constitutional law attorney Gerry Weber said in an interview that characterizing social media as a public or quasi-public entity will prove to be a futile legal argument. In Weber's view, Florida cannot legally force private companies to "provide a megaphone to someone they don't want to provide a megaphone to."

"The Supreme Court has never said that any outlet of media was essentially the government and therefore subject to greater restrictions. They've rejected that notion through history as new media means have come into being," Weber said. "That argument is not going to travel."

In a 2019 opinion tackling the matter, the high court ruled that a non-profit corporation that operated public access TV channels in New York City was not required to honor free speech rights. Justice Brett Kavanaugh wrote that "merely hosting speech by others is not a traditional, exclusive public function and does not alone transform private entities into state actors subject to First Amendment constraints."

The case was later cited in the Ninth Circuit's ruling against Prager University on its claims that YouTube violated its constitutional rights by demonetizing its videos. The court found that Prager's attempt "to foist a 'public forum' label on YouTube" fell flat.

Facebook CEO Mark Zuckerberg testifies remotely during a Senate Judiciary Committee hearing on Facebook and Twitter's actions around the closely contested election on Tuesday, Nov. 17, 2020, in Washington.. (Bill Clark/Pool via AP)

A lawsuit challenging Florida's social media regulation is already making its way through federal court. It was filed by NetChoice and the Computer & Communications Industry Association, two tech-industry advocacy groups, within three days of DeSantis' signing the bill.


The plaintiffs claim the regulation violates social media companies' own free speech and due process rights. They allege the law is also preempted by Section 230 of the Communications Decency Act, which gives online service providers civil immunity over content moderation decisions.

The lawsuit is a bellwether case that could help shape the boundaries of social media regulation across the country.

Nadine Strossen, former president of the American Civil Liberties Union, said in an interview that a "battle of analogies" is poised to play out in the litigation.

Strossen, who is not a party to the case, said that while the state of Florida seeks to frame social media companies as monopolized public forums, opponents of the new law will claim the companies are more akin to private publishers.

"To the extent that you could analogize a social media platform to a newspaper, you would reach the conclusion that [the law] is unconstitutional --- inconsistent with the platform's First Amendment rights as an editor, if you will, to decide which speakers to host and which not to host," said Strossen.

"People from all across the ideological spectrum are questioning that comparison, though, saying maybe it's not the best analogy," she added.

In 1974, the U.S. Supreme Court struck down a Florida statute that required newspapers to give political candidates space to respond to editorials criticizing them. Chief Justice Warren Burger wrote that publishers' decisions on the content of a paper --- as well as their treatment of political candidates "whether fair or unfair" --- are protected under the First Amendment.

Opposing counsel in the case, known as Miami Herald Publishing v. Tornillo, argued that in light of consolidation of ownership in the newspaper industry, the political views of a few powerful publishers threatened the foundation of open public debate.

The court did not buy in. Burger wrote: "It has yet to be demonstrated how governmental regulation of this crucial process can be exercised consistent with First Amendment guarantees of a free press."

Weber told Courthouse News that, similar to the Florida law at issue in Miami Herald Publishing, the Sunshine State's social media regulation imposes a dubious content-based restriction on speech. He called the regulation "an intrusion upon how private companies choose to do their business and who they choose to do their business with."

"If the state is preventing a social media company from using its own standards and forcing it to include speech that it does not want on its platform, then the law is a content-based restriction on speech. And it has a compelled speech element," said Weber.

Strossen told Courthouse News that the argument is strong but "not a slam dunk."

"One factor here is the extent to which the [social media] platform is really acting as an editor. While the platforms engage in some content moderation around the edges, basically the vast majority of people who want to post get to do it," Strossen said.

According to Strossen, there may be a shift whereby courts will start treating social media companies more like a common carrier, public accommodation or TV company --- entities that have traditionally been subject to heightened regulation.

The Supreme Court in 1969 for instance upheld federal regulators' now-abandoned Fairness Doctrine, which required broadcasters to present differing viewpoints on public controversies and give response time to people who had been criticized on air. In light of the limited availability of radio frequencies, broadcasters controlled a scarce resource subject to heightened regulation, the court reasoned. The decision stated that "it is the right of the viewing and listening public, and not the right of the broadcasters, which is paramount."

Twitter warned users that there is more to the story behind this Nov. 7, 2020, tweet from President Donald Trump declaring victory in the 2020 election that would later be called for Democrat Joe Biden. (Screenshot via Courthouse News)

Strossen pointed out that there are high court decisions "that go both ways" with respect to weighing individuals' free speech rights against a company's rights to control its venue.

"The Supreme Court has not issued an absolute rule. In each case, the court does a balancing between two major factors: how important is access to the platform from the perspective of the speaker versus how important is it for the platform to have the right not to host speech," she said.

Indeed, since the Marsh decision was handed down in 1946, the Supreme Court has wavered on whether owners of publicly accessible commercial property can force protesters off that property.

Equating a Pennsylvania shopping center to the "company town" in the tradition of Marsh, the high court in 1968 found that picketers had a First Amendment right to protest at the center.

But the court later departed from that logic in Hudgens v. NLRB, holding that an Atlanta-area shopping complex was not "the functional equivalent" of a public square. The court found that picketers on strike did not have a constitutional right to protest there.

As for whether states are entitled to fine-tune the balance between private property rights and individuals' free speech --- the high court answered "yes" in the 1980 case Pruneyard Shopping Center v. Robins. Justice William Rehnquist wrote that the California Constitution could ensure that people have access to privately owned shopping centers for the purpose of political activism in California, a right they might not enjoy in other states.

The California Constitution's expansion of free speech rights did not inherently violate shopping center owners' own constitutional rights, according to the decision.

Paul Gowder, a constitutional law professor at Northwestern University, told Courthouse News that social media companies' novel role in society and unique business model make it difficult to frame them in the context of the Supreme Court's past First Amendment decisions.

The Pruneyard courtyard in Campbell, California, as pictured in the Los Gatos Times-Saratoga Observer in August 1972. In 1975, students who were handing out petitions at the property were approached by security and asked to leave, sparking a legal battle that reached the U.S. Supreme Court. (Via San Jose Public Library)

Though equating Twitter and Facebook to the news publisher in Miami Herald Publishing v. Tornillo might be a stretch, Gowder said that the "core business activity" of social media still consists of managing speech.

Removal of hate speech, wildly offensive posts and other disagreeable content paved the way for Facebook and Twitter's vast commercial growth, Gowder said.

"To get advertising sales, these companies need engagement and active users. To have active users, they need to have content that isn't awful. You're not going to get Facebook-level revenue on 4chan. So content moderation is the whole game in social media," the law professor said.

Several state constitutions extend individuals' free speech rights to shopping centers in the vein of the Pruneyard case. But attempts by states to expand such rights into the social media realm --- and to force social media companies to host speakers in the process --- might be more problematic, Gowder surmised.

"We're not talking about a grocery store or a mall here. I think it's going to be much harder to convince a court that this kind of regulation isn't compelled speech when the entire thing that social media companies do is create a speech environment to attract users," Gowder said.

Read the Top 8

Sign up for the Top 8, a roundup of the day's top stories delivered directly to your inbox Monday through Friday.