(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.
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.