Free Speech

Compelled Hosting Isn't Rendered Unconstitutional by the Host's Being a Speaking Organization

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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 arguments are  in this post, which relies on the PruneYardTurner, and Rumsfeld precedents, and in this one, which explains why Miami HeraldHurley, and the various other "common theme" precedents don't apply.

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The precedents I discuss show that the law may require certain private property owners to allow public access even when they are themselves in the speech business:

  • Cable systems, the Court made clear, are "entitled to the protection of the speech and press provisions of the First Amendment," and indeed sometimes supply "original programming" of their own.[1]
  • Universities of course engage in massive amounts of their own speech (including by curating others' speech, for instance when organizing symposia) on their property.
  • Even shopping malls usually display and distribute their own speech on their property.

Yet all three can still be required to host others' speech.

Likewise for social media platforms. They indubitably speak themselves, for instance when they choose to recommend particular material to readers (more on that at p. 71). The government can't demand that they include sites they dislike within those recommendations. And, as with Rumsfeld, the platforms retain the right to "voice their disapproval of [users'] message,"[2] for instance by posting fact-checks or warnings, if they wish.[3] But this speech by the platforms, like the speech engaged in by universities, doesn't give them the First Amendment right to stop hosting speakers they dislike.

[1] 512 U.S. at 636 (cleaned up).

[2] 547 U.S. at 69-70; id. at 65.

[3] One of the reasons that NetChoice, LLC v. Moody struck down the Florida social media rules was that they, "unlike the state actions in FAIR and PruneYard, explicitly forbid social media platforms from appending their own statements to posts by some users." No. 4:‌21CV220-RH-MAF, 2021 WL 2690876, *9 (N.D. Fla. June 30, 2021).

NEXT: Today in Supreme Court History: July 11, 1921

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  1. When twitter prevents a tweet from being shared or liked, is that twitter’s speech?

    1. By shared I mean retweeted, not shared via direct link.

    2. Well, when PruneYard prevents people from leafletting, is that its speech? When Turner Broadcasting refuses to carry a broadcast channel, is that its speech? When a university refuses to allow a military recruiter, is that its speech? The Court held otherwise in all three cases, and in some detail in the third (Rumsfeld v. FAIR). The same, I think, applies to Twitter blocking the sharing or liking of tweets.

      1. Thanks very much, for carrying my water I guess. Don’t blame the mushrooms.

      2. Of course the retweet isn’t the provider’s speech. But, the same can be said of comments. And yet, you concluded the censoring of comments was protected by the First Amendment as part of the provider’s conversation function. Are retweets part of the conversation function?

        1. From the article, comment sections are vulnerable to spam and other exploiters. The spam leaches off value without any redeeming value of its own. It is therefore required to allow the platforms to delete comments to provide a useful comment function.

          However a solution exists, I think. Instead of deleting comments, the comments can simply be hidden from view, like the mute function we have here.

          1. Slashdot moderation includes meta-moderation, where users get to rate whether moderated comments were moderated correctly. I believe there is some requirement that users can moderate only after some time or comment minimum has been reached, and ditto for meta moderators.

            There’s also the curator method, where people can sign themselves up as curators who approve messages for their followers.

            There are many ways for social media to allow users to do their own censoring, but the platforms would prefer to do it themselves, as they know what is best for everybody.

            It is similar to that company in Utah which sold redacted DVD copies. Hollywood pitched a hissy fit about copyright violation, and producers, directors, actors, and others whined that it destroyed the integrity of their work. Yet far as I can remember, the company bought fresh copies of the DVDs for each redacted copy, may even have sold the pair as a bundle, and did not rob Hollywood of any royalties.

        2. Retweeting is more like overhearing a conversation and starting a new conversation about the overheard conversation, rather than entering into the original conversation directly. So then it would be secondary conversation, but not conversation per se, if I’m thinking about that right.

        3. Josh R, help me out, I lose track. Does “censoring of comments,” in your comment above refer to editing by the platform, or censorship by the government, intervening to tell the platform what it must publish?

          1. Josh R, help me out, I lose track. Does “censoring of comments,” in your comment above refer to editing by the platform, or censorship by the government, intervening to tell the platform what it must publish?

            You need more help than that if you think that you’ve made any sort of cognizant point here.

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