U.S. Courts Have Not Upheld Free Speech Censorship by Private Firms

Traditional legal doctrine has been that private actors are not constrained by the Constitution generally, under the “state action” doctrine, which holds that  “the First Amendment governs only governmental limitations on speech (Nyabwa v. Facebook, 2018 U.S. Dist. LEXIS 13981, Civil Action No. 2:17-CV-24, *2 (S.D. Tex.) (Jan. 26, 2018).”

The state action doctrine holds that only the government or those acting on its behalf are subject to constitutional scrutiny. Non-governmental conduct therefore lies beyond the Constitutional protections.

On the other hand, the exercise of free speech has recently seemed to be invoked as a right by major league sports figures whose kneeling during the playing of the national anthem is said to be an exercise of free speech rights not traditionally protected by the First Amendment. 

“The time has come to recognize that the reach of the First Amendment be expanded,” says lawyer David Hudson.  

The U.S. Supreme Court recognized this reality last year in Packingham v. North Carolina (2017): 

“While in the past there may have been difficulty in identifying the most important places (in a spatial sense) for the exchange of views, today the answer is clear. It is cyberspace—the ‘vast democratic forums of the Internet’ in general, and social media in particular,” the U.S. Supreme Court has said in the case of Packingham v. North Carolina, 137 S.Ct. 1730, 1735 (2017).

The argument is that social media networking sites have become the modern-day equivalent of traditional public forums like public parks and public streets. 

“Public communications by users of social network websites deserve First Amendment protection because they simultaneously invoke three of the interests protected by the First Amendment: freedom of speech, freedom of the press, and freedom of association,” said Benjamin F. Jackson in a 2014 law review article (Benjamin F. Jackson, Censorship and Freedom of Expression in the Age of Facebook, 44 N.M. L. Rev. 121, 134 (2014)). 

“Federal courts can and should extend First Amendment protections to communications on social network websites due to the importance these websites have assumed as forums for speech and public discourse,” he argued. 

As with debates over network neutrality, where there arguably is a difference between permissible network management and other practices some argue are violations of the basic principle of free access to lawful internet apps and services. 

For example, social network websites may censor communications in order to prevent convicted criminals from preying on victims, accusers, or witnesses or prevent certain users from harassing or intimidating other users without violating free speech principles. 

Censorship of pornographic or violent materials likewise could help create and maintain an environment acceptable to users of as many ages and sensibilities. 

Also, censorship might be necessary to prevent harm to the website due to hacking and phishing attacks and comply with copyright and trademark laws.

The Supreme Court’s reasoning in Reno v. ACLU ( 521 U.S. 844 (1997) supports treating communications on social network websites as constitutionally protected speech. 

To be sure, application of First Amendment principles to private actors would raise the issue of impairment of their property rights. To use the telecommunications analogy, that would be similar to common carrier regulation of prices and terms of service. 

There is legal precedent. Under the public function exception, “the exercise by a private entity of powers traditionally exclusively reserved to the State” constitutes state action (Jackson v. Metro. Edison Co., 419 U.S. 345, 352 (1974). That has not generally been a winning argument in the courts.

But it might be argued that social networks resemble the public spaces the Supreme Court has chosen to protect in both its public function exception (Marsh v. Alabama, 326 U.S. 501 (1946) and public forum doctrines.

The Supreme Court has held that the private property rights of a company did not “justify the State’s permitting a corporation to govern a community of citizens so as to restrict their fundamental liberties.”

The public forum doctrine was pioneered by Hague v. Committee for Industrial Organization (307 U.S. 496 (1939) and Schneider v. Irvington (308 U.S. 147 (1939). Under the public forum doctrine, restrictions on speech in public spaces that have traditionally served as a venue for free expression and debate are subject to special constitutional scrutiny.

There also is an entwinement exception, though that also would face high scrutiny. Under the entwinement concept, a  non-governmental actor might be deemed a state actor if the firm has acted together with or has obtained significant aid from state officials, beyond mere licensing,  regulation or financial aid. 

Courts have thus far rejected claims that social network websites or their parent companies  show “entwinement.” Gilmore v. City of Montgomery, 417 U.S. 556, 569 (1974);