The last few months I’ve been concentrating on completing a couple of outside writing projects I started some time ago.  In the meantime, as always, significant developments have begun to emerge in the world of Constitutional law.  Let’s start to catch up a little. Any comments or suggestions are, as always, welcome. Now on to today’s entry.

The Suppression of Free Speech on Social Media platforms.

In our history, Freedom of Speech has periodically experienced perilous times.  Yes, this is one of those times.  

Attempts to suppress as well as control Speech are widespread, far exceeding occasional overreach.  The efforts are organized, directed, intentional.  They affect every profession, be it law, military, politics, entertainment, education (college, high school, and elementary), science, mathematics, libraires, journalism and more.  Even bakers of cakes and Presidents are targeted.  

Suppression takes many forms, some old, some new. All involve not just a denial of speech, but engendering fear in others who may want to speak out.  Cancel culture, de-platforming, suspension of accounts, nighttime mobs with bullhorns and spray paint descending on public venues and private homes have become routine.  There are no bounds. It is timeless.  No words uttered in anger or frustration, no tipsy indiscretion, no expression made in the foolishness of youth, no dissent from accepted thought, uttered on a debate platform or scrawled in a high school yearbook is beyond reach.

The retribution is severe.  And no heads bowed in apology, no hand wringing humiliating public expressions of contriteness are ever enough. To the mob, appeasement is rightly perceived as surrender. As ever it was.  And, as ever, saying “I’m sorry” is never enough to halt the swift dropping blade of the public guillotine.   

Clearly, social media such as Facebook, Twitter, Google, Amazon and others provide not only platforms for mobs of social activists to viciously suppress the speech of others, but the platforms themselves are increasingly willing to engage in suppressing the speech of individuals, writers, government officials, and scientists who question the truth of accepted doctrines.

If there is viewpoint discrimination, is it of Constitutional dimension? What’s a victim to do? Is there a legal remedy?  

There may be. 

We know that If government violates a citizen’s constitutional rights, the entity can be held liable for monetary damages as well as be subject to civil injunctions prohibiting the continuation of the unconstitutional conduct.    Does the fact that social media are non-governmental, “private” companies mean they can’t be held liable?  

Not exactly.

Recently, Justice Clarence Thomas, who has quietly positioned himself as an independent and intellectual leader of the Supreme Court touched on these issues.  On April 5 of this year, In a concurring opinion to an order rejecting review of a case involving President Trumps twitter account,  he correctly prophesized the court will have to face social media and Free Speech issues head on one day soon.  

As Justice Thomas pointed out, a limited number of platforms have enormous control over the “market share” of public information.  Twitter has over 200 million users every day.  Facebook has 3 billion users. Google controls 90% of the search activity on the internet.  Amazon controls a clear majority of e-books and half of all physical books.  And even more concerning is that these companies are controlled by a mere handful of individuals.  Facebook by one person, Google by two, Twitter by one, and Amazon by one.

But really, what mischief is possible?  

It’s real.  As Justice Thomas’s opinion says, Amazon “can impose cataclysmic consequences on authors, by, among other things, blocking a listing.”  Google, Facebook and Twitter “can suppress content by de-indexing or down listing a search result or by steering users away from certain content by manually altering autocomplete results.”  They “can greatly narrow a person’s information flow through similar means.”

The potential influence in the suppression of speech is pernicious.  And it becomes more blatant and shameless every day.  But what of the argument that if a user doesn’t like it, they can patronize other private vendors?

As Justice Thomas opined it’s the same choice travelers had last century when fat cat monopolies controlled the trains and other forms of transportation.  “A person could always choose to avoid the toll bridge or train and instead swim the Charles River or hike the Oregon Trail.”  In law what matters is not that alternatives exist but rather “whether the alternatives are comparable.” 

A key to understanding how to approach the problem is the concept of agency.  Under traditional First Amendment analysis the Supreme Court has ruled, “private entities are constrained by the First Amendment if the government coerces or induces it to take action the government itself would not be permitted to do, such as censor expression of a lawful viewpoint.”

The Court recognized, in a 1963 case, an obvious truth, “People do not lightly disregard public officer’s thinly veiled threats to instate criminal proceedings against them if they do not come around.”  

The bottom line was expressed by the Court as follows: “The government cannot accomplish through threats of adverse government action what the constitution prohibits it from doing directly.”

Is that happening?  Yes.

As just one example, two congressmen recently wrote public letters to the social media giants demanding they de-platform Fox News.  They implied there would be severe consequences should Big Tech fail to do so. Other efforts were recently summarized in the editorial pages of the Wall Street Journal as follows:  

“Progressives have deputized Big Tech executives as de facto regulators of American debate. . .  Social media management is now performing what has all the hallmarks of a quasi-governmental function. . . The distinctions between government and Big Tech firms is becoming harder to delineate. Which speech decisions are the companies making because of business interests, and which are in response to government demands?”

But there are other theories of liability besides agency.  

Justice Thomas in the opinion mentioned above equated the media platforms with Common Carriers.  Although owned and operated by private parties, Common Carriers are subject to regulations that prohibit them from discriminating against users.  The cases have upheld recognized the necessity of outlawing the discrimination because of their dominant market share and holding themselves out as open to the public.  As the Justice stated, there is in law “the long history in this country and in England of restricting the exclusion right of common carriers and places of public accommodations.”

They social media platforms are certainly Common Carriers of information and citizens’ opinions.  They hold themselves out as public accommodations, inviting the public to use their platforms.  And they clearly dominate market share.  Justice Thomas’ common carrier analogy works. 

There is another possible approach.  

Can the platforms of social media be construed as public squares where, by tradition and history, public debate occurs and is, therefore, protected from encroachment? 

First as to public square.   

There are two line of cases which deal with whether Speech is protected from government interference if it takes place in what the Supreme Court has recognized as a public forum even if on private property.  

The test the Court frequently uses is whether the properties are historically associated with the exercise of first amendment rights.  Therefore, public sidewalks, parks, and cartilages outside courthouses and state houses are often found to be public forums.  However, other locations without the historical association with the exercise of free speech, such as military bases, jails and certain interior portions of public buildings are excluded from protection.  

Two 5-4 decisions, one in 1968 and the other in 1972 took differing views.  In the first, Amalgamated Food Employees v Logan Valley Plaza, the Supreme Court held that a trespass law could not be used to deny Union picketing of a store even though the Mall was privately owned.  However, this was later contradicted in Lloyd v Tanner which upheld a prohibition on leafleteers handing out anti-war handbills at a shopping mall.  

Arguing that the government cannot deny access to “streets, parks, and other similar public places . . . historically associated with the exercise of First Amendment rights.”   Justice Thurgood Marshall, who’s seat Justice Thomas now occupies, made an important statement the echoes of which one can hear Justice Thomas’ opinion.  

Justice Marshall wrote,  “For many persons who do not have easy access to television, radio, the major newspapers, and the other forms of mass media, the only way they can express themselves is to picket, or to handbill, or to utilize other free or relatively inexpensive means of communication.  The only hope that these people have to be able to communicate effectively is to be permitted to speak in those areas in which most of their fellow citizens can be found. One such area is the business district of a city or town or its functional equivalent.”

Indeed. 

As to social media, is there any other way, any other place to go for a citizen, much less a President, to express themselves and be heard?  The Supreme Court may one day soon, be challenged to answer that question. 

For more writings by Phil Cline, visit philcline.com