Ruthann Robson is a Professor of Law & University Distinguished Professor at CUNY School of Law. She is the author of Dressing Constitutionally: Hierarchy, Sexuality, and Democracy (2013), as well as the books Sappho Goes to Law School (1998); Gay Men, Lesbians, and the Law (1996); and Lesbian (Out)Law: Survival Under the Rule of Law (1992), and the editor of the three volume set, International Library of Essays in Sexuality & Law(2011). She is a frequent commentator on constitutional and sexuality issues and the co-editor of the Constitutional Law Professors Blog.
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Professor Ruthann Robson
The constitutional chasm between public and private can quickly become a murky swamp when free speech claims arise. Perhaps this lack of clarity is attributable to the First Amendment’s status as a political and societal concept as well as a legal one, or perhaps it is because the always problematical public-private divide has increasingly been eroded in our era of “public-private partnerships” and “privatization.” When the free speech involved occurs on social media — which operates currently as our corporate-owned town square — it can seem like a quagmire, especially if the participants are government officials.
Before considering three contemporary examples, a look back at the landmark case of Marsh v. Alabama (1946) is instructive. Marsh, known as the “company town case,” involved Grace Marsh, arrested for trespassing on the Gulf Shipbuilding Corporation’s property, which was the “town” of Chickasaw, Alabama. Marsh, a Jehovah’s Witness, had stood on the sidewalk near the post office offering literature; when asked to leave she declined. While the Court is somewhat unclear which First Amendment freedom is at issue — speech, press, or religion — the Court’s majority is definite that such an infringement would not be constitutional if committed by a state or municipality. The Court decides that the fact that the corporation owns title to the land is essentially a technicality which should not prevail over the reality that the company town functions like any other town. This finding of sufficient state action to make the Constitution applicable is supported by the Court’s conclusion on the merits. Justice Black’s opinion for the Court states that “many people” in the United States live in “company-owned towns” and these people, just like others, “must make decisions which affect the welfare of community and nation,” and so must be informed.
In 2018, social media is accessed by more than 70% of the United States population and has largely replaced leaflets distributed on the corner as a source of information that will be used in making “decisions which affect the welfare of community and nation.” According to the Pew Research Center, the most popular sites include You Tube (73%) and Facebook (68%), as well as Instagram (35%), Pinterest (29%), Snapchat (27%), LinkedIn (25%), Twitter (24%), and What’s App (22%). In the United States Supreme Court’s unanimous decision last year in Packingham v. North Carolina, the Court found a state statute prohibiting registered sex offenders from accessing social networking sites violated the First Amendment. Justice Anthony Kennedy writing for the Court stated that “we now may be coming to the realization that the Cyber Age is a revolution of historic proportions,” but we do not yet appreciate the “full dimensions and vast potential to alter how we think, express ourselves, and define who we want to be.” Concurring, Justice Alito found it important to add that the entirety of the internet or even social media sites are “the 21st century equivalent of public streets and parks.” In Packingham, the state action threshold was easily crossed: there was a state statute with criminal penalties. The more vexing situations occur when these cyber- “streets and parks” are owned and operated by private companies.
Alex Jones (credit: Political Dig)
There is a factional (and presidentially approved) argument that these companies practice “censorship” of “conservative” voices. Recent controversies surrounding “conspiracy theorist” Alex Jones and his platform “InfoWars”are illustrative. YouTube and Facebook removed Jones’ content and terminated his accounts, while Twitter penalized Jones by curtailing some of his “privileges.” While the companies made decisions based on interpretations of their “terms of service,” arguments about whether or not the companies were justified often veered into constitutional doctrine, including whether falsehoods, hate speech, and incitements were protected. When the First Amendment was specifically cited, this provoked a rejoinder of the state action doctrine based on the distinction between the public and private. This in turn was rebutted by the observation that Facebook, for example, is a “public company” evincing a confusion wrought by the state action doctrine (as well as the law of corporations). But even if one recognized that the First Amendment did not apply to the social media companies because they were private actors, there was an argument it should.
More sophisticated legal thinkers, including law students, would be able to frame arguments extending the Marshcompany-town holding. Yet in Marsh, the application of the First Amendment served to protect Grace Marsh and arguably the community living in Chickasaw, while allowing well-funded conspiracy theorists to not only access but potentially overrun our cyber town squares might result in less “information” and “free speech” given our current First Amendment doctrines that presume a level playing field in the “marketplace of ideas.”
Closer and even more doctrinally difficult situations occur when a government official uses social media and the platform functions. Consider a local government official using the functions of Facebook, including the ability to remove comments to one’s own post and to block a person. Last year, in Davison v. Loudon County Board of Supervisors, a United States District Judge in the Eastern District of Virginia found that these acts constituted sufficient state action and violated the First Amendment. The judge analyzed the elected official’s uses of the Facebook page, noted that she had government staff who assisted with the page, and also had a separate personal Facebook page. Although the politician could “take” the page with her when she left office, the judge concluded she “used it as a tool of governance” and the page reflected her efforts to “swathe” it with “the trappings of her office.” The judge found that this county board supervisor (although not the entire Board of Supervisors) was subject to First Amendment and had violated it.
Finally, there is the President and his notorious Twitter account and statements. The Department of Justice, representing the President, has appealed a final order finding that the state action requirement was satisfied and that the President did violate the First Amendment when blocking users from viewing or responding to his tweets. In her extensive opinion in Knight First Amendment Institute v. Trump, United States District Judge Naomi Reice Buchwald rejected the argument that blocking was not state action because the blocking functionality was afforded every user. She also rejected the argument that because the Twitter account was begun in 2009 it was not governmental now. Relying on stipulations of the parties, the judge reasoned that together with federal employee Daniel Scavino, the “White House Social Media Director,” “President Trump uses @realDonaldTrump, often multiple times a day, to announce, describe, and defend his policies; to promote his Administration’s legislative agenda; to announce official decisions; to engage with foreign political leaders; to publicize state visits; to challenge media organizations whose coverage of his Administration he believes to be unfair; and for other statements, including on occasion statements unrelated to official government business. President Trump sometimes uses the account to announce matters related to official government business before those matters are announced to the public through other official channels.” Having cleared the hurdle of state action, the judge found a First Amendment violation, importantly observing that the “audience for a reply extends more broadly than the sender of the tweet being replied to, and blocking restricts the ability of a blocked user to speak to that audience. While the right to speak and the right to be heard may be functionally identical if the speech is directed at only one listener, they are not when there is more than one.”
When government officials, whether the President or a local member of a county board, suppress dissident voices in the virtual public square, there is not only “viewpoint discrimination” under First Amendment doctrine, but also an attempt to manufacture consent so dangerous for democracy. Their acts should clearly constitute state action and they should be held to the rigors of the First Amendment. Less clear is whether the multi-billion-dollar companies that presently host our public squares should be subject to constitutional constraints in the same manner as the “company towns” of the last century, especially if the consequences of doing so afford us less free speech and make us less informed as we navigate our cyber sidewalks.