First Amendment Free Speech Protections Apply Only to Government, at the Federal Level, Not Private Firms

Some might believe that U.S. free speech rights apply to most venues we encounter, from shopping malls to public transportation. That is mistaken. The right of free speech as enumerated in the First Amendment to the U.S. constitution only fully applies to government restraint, not that of all private actors or venues. 

So when a passenger on an airline complains about free speech “rights,” that is not a venue of protected speech.

Importantly, the First Amendment generally restricts government action, not private property owners, so it usually does not give a right to speak on private property or in privately run venues just because the public is invited in.

The Supreme Court’s starting point is that private owners do not have to turn their homes, businesses, or other property into expressive forums for others. In Marsh v. Alabama, the Court treated a company town like a municipality because it functioned as a town in all practical respects, so speech rights applied there. 

But later cases narrowed that idea, making clear that ordinary private commercial property is usually not subject to First Amendment speech access rights.

Consider shopping malls, which some litigants have compared to the older “town square.” Courts have ruled that the First Amendment does not force the owner to allow leafleting, protests, or petitioning on private mall property, as in Lloyd Corp. v. Tanner and Hudgens v. NLRB.

But some state constitutions grant greater speech rights in shopping centers than the federal First Amendment requires.

Social media companies are usually treated as private actors, so the First Amendment generally does not make them open public forums for user speech, either. 

Public transportation is trickier because the answer depends on ownership and operation. If the transit system is run by the government, First Amendment limits on viewpoint discrimination can apply because the government is involved. 

If the service or property is privately owned or operated, the First Amendment usually does not itself force access, although specific transit areas can sometimes be treated as public forums for certain government-run advertising or station spaces.

Churches are private property and are not generally subject to First Amendment speech-access claims from outsiders. 

The general rule is that the First Amendment applies directly when the government is restricting speech, but not when a private owner is doing so.