The Volokh Conspiracy
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Laws Requiring Social Media Firms to Host Content they Prefer to Exclude Violate the Takings Clause
Ethan Blevins of the Pacific Legal Foundation explains why. I myself have made similar arguments.
The Supreme Court is currently considering two cases in which social media firms challenge the constitutionality of Texas and Florida laws requiring them to host content the platforms would prefer to exclude. The issue before the Court is whether these laws violate the Free Speech Clause of the First Amendment. But, in a recent Reason article, Ethan Blevins of the Pacific Legal Foundation - one of the nation's leading public interest law firms litigating takings cases - argues they also violate the Takings Clause of the Fifth Amendment:
While pundits and lawyers cross swords over free speech on social media, a quieter yet critically important principle is being ignored: property rights. In addition to violating the First Amendment, the rush to force social media platforms to host content violates the Fifth Amendment as well—in particular, the Takings Clause.
The Takings Clause says that government shall not take private property "for public use, without just compensation." While many are familiar with the clause's importance when the government wants to seize land through eminent domain, courts have also applied this right as a limit on the ability to overregulate property. For example, if a beach town requires the owners of oceanfront properties to let the public walk across their yards to get to the beach, this would require compensation, because the regulation effectively takes the property owner's right to exclude, a cornerstone of ownership.
Likewise, the Takings Clause shields social media platforms from regulations requiring they host content or users they want to exclude. These platforms have as much right to eject unwelcome digital interlopers as homeowners do to stop the government from using their yard as a public right of way—unless they are given just compensation. If states intend to force social media apps to host users and content against their wishes, they will have to pay for it….
Both state and federal laws already treat online platforms as property. All states criminalize unauthorized access to computer systems, often expressly framing these crimes as trespass….
Laws that mandate online platforms to accept certain content or users effectively invade private property. And the courts have established that when the government grants third parties access to private property without the owner's consent, that requires compensation. The federal government had to pay a private marina owner in Hawaii before it could be compelled to allow public boating access. Similarly, the Supreme Court ruled just a few years ago that California had to compensate employers after it forced them to let union representatives access their property.
I very much agree, and previously made a similar argument here:
The Takings Clause bars government from taking "private property" without paying "just compensation." In its 2021 ruling in Cedar Point Nursery v. Hassid, the Supreme Court ruled (correctly, in my view) that even a temporary government-mandated "physical occupation" or invasion of private property counts as a per se taking….
The Florida and Texas social media laws are also blatant attacks on the right to exclude. No one doubts that the Twitter site and its various features are Twitter's private property. And the whole point of the Florida and Texas laws is to force Twitter and other social media firms to grant access to users and content the firms would prefer to exclude, particularly various right-wing users. Just as the plaintiffs in Cedar Point wanted to bar union organizers from their land, so Twitter wishes to bar some content it finds abhorrent (or that might offend or annoy other users)….
To be sure, there are obvious differences between virtual property, such as a website, and more conventional physical property, like that involved in the Cedar Point case. But the Taking Clause nonetheless applies to both. If Texas decided to seize the Twitter site, bar current users, and instead fill it with content praising the state government's policies, that would pretty obviously be a taking, much like if California decided to seize the Cedar Point tree nursery's land. In the same way, requiring Twitter to host unwanted content qualifies as an occupation of its property, no less than requiring a landowner to give access to unwanted entrants…
One could argue that forcing a website owner to host unwanted users isn't really a "physical occupation," because the property is virtual in nature. But websites, including the big social media firms, use physical server space. Other things equal, a site with more user-generated content requires more such space than one with less. Even aside from the connection to physical infrastructure, it seems to me that occupation of virtual "real estate" is analogous to occupation of land. Both are valuable forms of private property from which the owner generally has a right to exclude.
