Free Speech

The Lack of a Sufficient "Common Theme" on the Large Social Media Platforms

|

Another excerpt from the First Amendment section of  my Social Media as Common Carriers? article (see also this thread); recall that the key First Amendment argument is in this post, which relies on the PruneYardTurner, and Rumsfeld precedents—this post explains why certain other precedents don't apply here.

[* * *]

Now of course requiring that material be included within a coherent speech product—a newspaper, a parade, a fundraising pitch—is generally unconstitutional, not because it involves compelled hosting as such, but because it interferes with the host's own speech. To quote Rumsfeld, the problem in those cases was "that the complaining speaker's own message was affected by the speech it was forced to accommodate":

[B]ecause "every participating unit affects the message conveyed by the [parade's] private organizers," a law dictating that a particular group must be included in the parade "alter[s] the expressive content of th[e] parade." As a result, we held [in Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston, Inc.] that the State's public accommodation law, as applied to a private parade, "violates the fundamental rule of protection under the First Amendment, that a speaker has the autonomy to choose the content of his own message."[146]

Likewise,

  • The right-of-reply statute in Miami Herald was unconstitutional in part because the newspaper is the aggregate of all of the items that it chooses "to print or omit."[147] Requiring a newspaper to include certain material that it would prefer to omit thus changes the content of the newspaper. (Miami Herald also held that a right of access is unconstitutional if it's triggered by the content of what the property owner says, for instance if it's triggered by a newspaper's publishing criticism of candidates. Such a content-based trigger would in effect be a "content-based penalty" on the speech that triggers the hosting obligation, just as a content-based tax would be.[148])
  • The law in Riley v. National Federation of the Blind requiring fundraisers to mention certain information in their pitches was unconstitutional in part because, in that situation, "[m]andating speech that a speaker would not otherwise make necessarily alters the content of the speech."[149]
  • The law in McIntyre v. Ohio Elections Commission requiring people to sign any campaign materials was unconstitutional in part because "decisions concerning omissions or additions to the content of a publication" (including just concerning the omission or inclusion of the author's name) are protected by the First Amendment.[150]
  • The law in NIFLA v. Becerra was similarly a speech compulsion because "requiring [anti-abortion clinics] to inform women how they can obtain state-subsidized abortions—at the same time [the clinics] try to dissuade women from choosing that option—… plainly 'alters the content' of [the clinics'] speech."[151] The clinics' "speech" referred to the aggregate content of all the speech that the patrons received from the clinics, just as the Hurley parade organizers' speech was the aggregate of all the speech that viewers would see in the parade. And people go to clinics precisely to hear the clinics' speech (whether or not they anticipate that the clinics' speech will come from a particular viewpoint).

Hurley explains this right to create a coherent speech product well. In Hurley, the Court held that a parade could not be required to include floats that the organizers disapproved of:

Since every participating unit affects the message conveyed by the private organizers, the state courts' application of the statute produced an order essentially requiring petitioners to alter the expressive content of their parade.[152]

Though "in spite of excluding some applicants, the [parade organizer] is rather lenient in admitting participants,"[153] the parade still had a broad general message, presumably having to do with "what merits celebration on [St. Patrick's Day]."[154]

Yet PruneYard, Turner, and Rumsfeld show that some hosting mandates are not seen as interfering with a coherent speech product. As the Pacific Gas & Electric Co. v. Public Utilities Commission plurality noted, "[n]otably absent from PruneYard was any concern that [compelled hosting of public speech] might affect the shopping center owner's exercise of his own right to speak."[155]

Similarly, in Rumsfeld, the Court didn't view the aggregate of all the recruiting on the law school campus as a coherent speech product the way a parade might be. "A law school's recruiting services"—here, presumably referring to the sum of all the recruiting—"lack the expressive quality of a parade, a newsletter, or the editorial page of a newspaper."[156] "[A]ccommodating the military's message does not affect the law schools' speech, because the schools are not speaking when they host interviews and recruiting receptions."[157]

The military recruiters, of course, were themselves speaking; their own recruiting pitches surely had at least as much "expressive quality" as did the fundraising pitches in Riley.[158] But the law schools weren't the ones speaking, because they weren't like parade organizers, creating a coherent whole out of all the recruiting interviews—they were merely "host[s]," "not speak[ers]." A law school's "accommodation of a military recruiter's message is not compelled speech because the accommodation does not sufficiently interfere with any message of the school."[159]

Likewise with Turner, which Hurley expressly distinguished:

[W]hen dissemination of a view contrary to one's own is forced upon a speaker intimately connected with the communication advanced, the speaker's right to autonomy over the message is compromised….

Unlike the programming offered on various channels by a cable network, the parade does not consist of individual, unrelated segments that happen to be transmitted together for individual selection by members of the audience. Although each parade unit generally identifies itself, each is understood to contribute something to a common theme, and accordingly there is no customary practice whereby private sponsors disavow "any identity of viewpoint" between themselves and the selected participants…. [T]he parade's overall message is distilled from the individual presentations along the way, and each unit's expression is perceived by spectators as part of the whole.[160]

That "the programming offered on various channels by a cable network" "consist[s] of individual, unrelated segments that happen to be transmitted together for individual selection by members of the audience"[161] could equally be said of the recruiting in various law school rooms in Rumsfeld, or the leafleters' and signature gatherers' speech in various places at the mall in PruneYard.

Likewise for Twitter letting people go to individual pages such as http://twitter.com/RealDonaldTrump, Facebook letting people to go to individual Facebook pages, YouTube letting people view individual videos, and the like. There too the pages are "individual, unrelated segments that happen to be [hosted] together for individual selection by members of the audience." The platforms are hardly "intimately connected" with the hundreds of millions of pages they host. All the Tweets on Twitter, posts on Facebook, or videos on YouTube lack any "common theme" or "overall message."[162] There are no "spectators" to "the whole" of Twitter, Facebook, or YouTube, except perhaps a few computer-assisted researchers.

I do think that a platform's recommendations count as the platform's own speech (see p. 71). The conversations that a platform facilitates between users may likewise count as a coherent speech product (see p. 72). But the pages or feeds that a platform hosts, and that users visit or subscribe to as they prefer, are properly seen as "individual, unrelated segments that happen to be transmitted together for individual selection by members of the audience."

Nor is the coherent speech product doctrine triggered merely by property being "intentionally designed to provide a specific experience to users."[163] Shopping malls, after all, routinely try to provide a specific experience for their customers—an experience of happy consumption, often mixed with socializing with fellow consumers, and undiluted by possibly offensive political expression. Universities may try to provide a specific experience for their students, for instance an experience of exposure to what they view as inclusiveness and social justice, undiluted by recruiters for institutions that discriminate based on sexual orientation

Yet this doesn't give those entities a right to exclude speakers that they see as inconsistent with that experience: The sum of all the sights and sounds in a mall, or all the channels on a cable system, or all the speech available from outside speakers in a university, doesn't qualify as a coherent speech product over which the property owner has the constitutional right of editorial choice.

Indeed, under the California law approved in PruneYard, a shopping mall may not even exclude anti-abortion protesters who display gruesome images of aborted fetuses—surely something that interferes with the "experience" that the mall is generally trying to provide its customers.[164] Likewise, a shopping mall doubtless wants to create an "experience" in which all its shops are presented positively. Yet it may be required to tolerate leafleters who urge customers to boycott one of the shops.[165]

 

[146] 547 U.S. at 63-64. The Rumsfeld Court also pointed out that a speech compulsion could also be a speech restriction because it takes up space that could otherwise be used by other speech:‌ "In Tornillo, we recognized that 'the compelled printing of a reply … tak[es] up space that could be devoted to other material the newspaper may have preferred to print,' and therefore concluded that this right-of-reply statute infringed the newspaper editors' freedom of speech by altering the message the paper wished to express." Id. at 64. "[I]n Pacific Gas," "the utility company regularly included its newsletter … in its billing envelope," so "when the state agency ordered the utility to send a third-party newsletter four times a year, it interfered with the utility's ability to communicate its own message in its newsletter." Id. (cleaned up).

[147] See PruneYard, 447 U.S. at 98 (internal quotation marks omitted).

[148] Miami Herald Co. v. Tornillo, 418 U.S. 241, 241 (1974); see also Turner, 512 U.S., at 655 (distinguishing Miami Herald as having involved a statute that "exact[ed a] content-based penalty" on such criticisms of candidates).

[149] Riley, 487 U.S. at 795.

[150] McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 342 (1995).

[151] Nat. Inst. of Fam. & Life Advocates v. Becerra, 138 S. Ct. 2361, 2371 (2018).

[152] Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Boston, 515 U.S. 557, 572–73 (1995).

[153] Id. at 569.

[154] Id. at 574.

[155] 475 U.S. 1, 12 (1986) (plurality opin.).

[156] Rumsfeld v. FAIR, 547 U.S. 47, 64 (2006).

[157] Id.

[158] See id. at 65 (discussing "speech by recruiters"); Thomas v. Collins, 323 U.S. 516, 532 (1945) (recognizing that a union organizer's "right thus to discuss, and inform people concerning, the advantages and disadvantages of unions and joining them is protected … as part of free speech," logic that would also apply to urging people to join the military); Village of Schaumburg v. Citizens for a Better Env't, 444 U.S. 620, 632 (1980) (treating fundraising pitches as protected speech, because they involve "communication of information, the dissemination and propagation of views and ideas, and the advocacy of causes"). The District Court in Rumsfeld had "determin[ed] that recruiting is conduct and not speech," 547 U.S. at 53, but the Supreme Court didn't endorse that position; it labeled law schools' decisions to include or exclude recruiters "conduct," id. at 60, but didn't label as conduct the "speech by recruiters," id. at 65.

[159] Id.

[160] Id. at 576.

[161] Hurley, 515 U.S. at 580.

[162] One could describe the overall content of Twitter as being "all things posted by Twitter users," or perhaps "things that people throughout the world think are worth discussing, and that don't run afoul of Twitter Rules." But that is still not a "common theme" or an "overall message," just as all the channels distributed on a cable system lack a common theme or overall message. Szóka & Barthold, supra note 10, argue that social media sites have a "common theme" in the sense of seeing themselves "as 'a place for expression,' one that 'give[s] people a voice'" (Facebook) and aiming "to enable people to 'participate in the public conversation freely and safely'" (Twitter). But under that definition, all property owners could have the First Amendment right to be free an access mandate—a shopping mall could say that it is "a place for shopping, enjoyment, and friendly conversations," a cable system could say that it is "a place for high-quality television," and a university could say that it is "a place for speech free of discrimination based on sexual orientation." PruneYard, Turner, and Rumsfeld tell us that these general and largely vacuous statements of common theme cannot suffice to defeat an access mandate.

[163] Bhagwat, supra note 71, at __.

[164] Ctr. for Bio-Ethical Reform, Inc. v. Irvine Co., LLC, 249 Cal. Rptr. 3d 391, 399 (App. 2019). The mall specifically argued that it was trying to create "family-oriented centers" to which parents would be willing to bring or send their children; yet the court concluded that the PruneYard right of access applied even so. Id. at 400.

And this sort of result is entirely consistent with the California law scheme that the U.S. Supreme Court upheld against First Amendment challenge in PruneYard: The U.S. Supreme Court noted that California law let platforms "restrict expressive activity by adopting time, place, and manner regulations that will minimize any interference with its commercial functions," 447 U.S. at 83, and by then it was clear that "time, place, and manner regulations" referred to content-neutral restrictions. See, e.g., Consol. Edison Co. of N.Y. v. Pub. Serv. Comm'n of N.Y., 447 U.S. 530, 536 (1980) ("a constitutionally permissible time, place, or manner restriction may not be based upon either the content or subject matter of speech"); see also U.S. Postal Serv. v. Council of Greenburgh Civic Associations, 453 U.S. 114, 132 (1981) ("This Court has long recognized the validity of reasonable time, place, and manner regulations on such a forum so long as the regulation is content-neutral, serves a significant governmental interest, and leaves open adequate alternative channels for communication."); Erznoznik v. City of Jacksonville, 422 U.S. 205, 209 (1975) (noting the general constitutionality of "reasonable time, place, and manner regulations," but distinguishing rules that "undertake[] selectively to shield the public from some kinds of speech on the ground that they are more offensive than others" can't be justified under that theory).

[165] Fashion Valley Mall, LLC v. NLRB, 172 P.3d 742, 870 (Cal. 2007) (rejecting the argument that the mall "'has the right to prohibit speech that interferes with the intended purpose of the Mall,' which is to promote 'the sale of merchandise and services to the shopping public'").

 

NEXT: The First Amendment and Treating Social Media Platforms as Common Carriers

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. While I agree with the parade and law school cases I do disagree with the outcome of the mall speech cases. I would have said that a mall as private property should not have to give up control over what messages are presented (even if the property is otherwise open to the public for commerce and the only message presented is “come spend your money here, it’s a fun safe place”).

    I see the law school not being able to ban military recruiters as a proper restriction on disbursement of tax funds, if the school really wants to ban such recruiters don’t take the money while I see a city saying what floats must be accepted as being within the range the 1st amendment prohibits.

    I may not like the choices the major social media platforms have made but that doesn’t mean I think they should be forced to change.

    1. The answer to a different outcome on the mall speech case would inherently be a strengthened concept of monopoly and more powerful anti-trust laws.

      In other words, while the private mall would have its own right to decide which speech it chose to permit, it would NOT be permitted to have the dominance over the regional retail trade which it currently enjoys. Instead, it would be limited to only having one or two stores on its property….

  2. So if Facebook organized itself as a non-profit, with the mission of liberalizing global society instead of making a profit, then it would have the right to remove users?

  3. Why are people acting like the reining in of Big Tech this is broad sweeping move? It isn’t. Its just a small very conservative step applied to a rampaging giant. If you want to question it then we should first question the thousands of other more draconian regulations in existence right now that effect companies on a daily basis that nobody cares about.

    1. As it is Mr Biden is acting against Big Tech this very day.

  4. I don’t know if this thought process has come up on the enormous comment thread on the other post on this topic, but if accepting government aid (to include student loans) is the lever by which universities can be forced to allow military recruiters and female military cadets, then it follows that everything the government provides to keep Facebook/Twitter/Google in business is a similar lever.

    Not necessarily a libertarian answer, and only vaguely conservative in the classic sense, but rather an expeditious one I suppose.

    1. mad_kalak: Rumsfeld v. FAIR expressly did not rely on the government funding in that case: “This case does not require us to determine when a condition placed on university funding goes beyond the ‘reasonable’ choice offered in [a prior case] and becomes an unconstitutional condition. It is clear that a funding condition cannot be unconstitutional if it could be constitutionally imposed directly. Because the First Amendment would not prevent Congress from directly imposing the Solomon Amendment’s access requirement, the statute does not place an unconstitutional condition on the receipt of federal funds.” (Emphasis added.)

    2. I don’t know if this thought process has come up on the enormous comment thread on the other post on this topic

      I like to watch the Tour de France on TV, vicariously enjoying the leader’s satisfaction as gradually he cracks his opponents and they fall back in a defeated, exhausted, trail behind him on the climb.

      EV is giving a similar performance with his series of 1A v. Big Tech pieces. This latest piece shows that EV has pretty much cracked the VC commentariat – most have now been dropped, pedalling slowly up the lower slopes.

  5. Given the pasting net neutrality took a few years ago there must be some conservatives, maybe some who comment here, who favor common carrier regulation of social media platforms and cloud providers but not for ISPs. Is there a reasonable defense for the proposition that Parler must not be blocked by Amazon but it can be by Comcast?

    1. Apparently not, or at least I haven’t seen such a defense, and nobody has offered one in reply to your query.

  6. I’m wondering how this common theme principle might apply to things like moderating the Volokh Conspiracy.

    So imagine the government passes a law saying that places like the VC must allow all comments from everybody on each of its comment threads. If VC comment threads then get spammed up by people selling home careers, repetitive bot-like comments complaining about clingers, or monomaniacs insisting on discussing climate change, then it seems to me that the VC would have a reasonable complaint that the law requiring all comments is interfering with the voluntary conversation going on between people wishing to discuss the subject(s) raised by the opening VC post.

    How – if at all -would the common theme principle help the VC in court, claiming that the “all comments” law infringed the 1A rights of the VC and its germane comment commentators ?

  7. Professor Volokh.

    It seems to me that a major social media company might be able to get around this with good lawyers and good technology.

    Suppose it organizes itself into a holding company with some thosuands or tens of thousands of subsidiaries, each legally a separate corporation, and each of which has a single theme and accepts posts on only a single subject, each making its own decisions independently. There is then a legally independent technology company that manages the platform itself but makes no decisions whatsover about whether to accept or reject posts. Only the individual, single-topic companies make those decisions.

    Could this or some other clever method get around the “common theme” element? Much as companies have been able to cleverly organize and divide themselves so that the entity that is assigned the profit is a legally different entity from the entity that is assigned the duty to pay tax, it seems to me you could do a similarly clever scheme so that the entity that makes the acceptance/rejection decision really does have a common theme, with everything handled seamlessly and without any noticable change in the user experience coming from the fact that the user is now technically dealing with many legally distinct companies instead of one.

    In my view we could set the law so that if it isn’t a common carrier, it’s a publisher, so these individual entities would become publishers and liable for libel etc., and this would be a way around it. But if Section 230 remained in place except for “major” social media platforms, there might way to legally transmogrify “major” platforms into seamless collections of “minor” ones, none meeting the definition of “major,” and hence all both escaping common carrier obligations and retaining Section 230 protections.

Please to post comments