Facebook, Censorship, and the First Amendment

Recently, over 70 civil rights groups wrote to Facebook CEO Mark Zuckerberg, demanding transparency in the company’s censorship of user posts. Complaints about Facebook’s censorship arose earlier this year when Gizmodo reported that Facebook’s “trending news” section was intentionally manipulated to hide stories of interest to conservative readers. In response to these allegations, the Senate Commerce Committee sent Zuckerberg a letter requesting an explanation of Facebook’s practices in populating its “trending news” section. The Committee identified Facebook as “an increasingly important source of news for many Americans and people around the world.” Indeed, a recent study by Pew Research Center reported that 44% of American adults obtains news from Facebook.

Concerns about Facebook’s censorship continue to mount. In the last six months alone Facebook has faced complaints for removing users’ posts, disabling journalists’ accounts, and taking down users’ livestreams of protests and police encounters. The looming question is what rights, if any, Facebook users can expect with respect to their online speech.

Free speech, a hallmark of American values, is protected from government censorship under the First Amendment. As a private entity, however, Facebook’s censorship does not readily fit within the confines of traditional First Amendment jurisprudence. The closest Congress has come to offering users protection from private entities on the internet is enacting § 230 of the Communications Decency Act (“CDA”). In reality, § 230 protects online intermediaries from incurring liability from their users’ content, and only tangentially protects users. But, through the CDA, intentionally or unintentionally, Congress effectively removed one of the largest incentives for censorship on the internet by distinguishing an intermediary’s speech from that of its users. Disincentivizing censorship, however, does not amount to banning it. Therefore, § 230 cannot fully resolve the issue of speech rights for Facebook users. Which returns us to the original question – what rights can Facebook users expect? Or, more aptly, what rights should Facebook users expect?

At present, no federal court has extended the First Amendment to cover user activity on Facebook. But scholars are beginning to consider such an extension. One forthcoming article by Professor Jonathan Peters posits that the state action doctrine, which confines the Fourteenth Amendment’s applicability to government action, can be adapted to encompass certain private actors in the digital era. Professor Peters proposes a balancing test that would examine the rights of property owners against those of property users based on the attributes of the online space. Applying a balancing test, rather than a blanket rule regarding free speech on the internet, allows courts to conduct fact-specific inquiries that distinguish between websites. For instance, a court would be able to distinguish between a website like Amazon, which allows user comment as a tangential feature to its primary commercial services, and a website like Facebook, which primarily focuses on facilitating user interactions and the exchange of ideas. Professor Peters acknowledges that the state action doctrine as it is understood today would not allow the First Amendment to apply to private entities like Facebook. However, he notes that “a state action theory that fails to protect free speech [principles] in digital spaces is problematic…in light of the nation’s history of protecting discourse in the space where it actually occurs.”

Protecting discourse “where it actually occurs” is a central theme of case law that developed the First Amendment’s public forum doctrine. The public forum doctrine regulates forums that are held out for the public’s use for speech purposes. The public forum doctrine was first extended to a private entity in Marsh v. Alabama.[1] In Marsh, the Court articulated features that private property must exhibit to be regulable under the First Amendment’s public forum doctrine.[2] Marsh addressed a criminal trespass statute that prevented the plaintiff from distributing religious materials in a company town.[3] The Court in Marsh expressly held that the company’s property interests in the town were not sufficient to deny citizens’ First and Fourteenth Amendment rights.[4] Since Marsh, courts have analyzed whether other private forums can be treated as public spaces.[5] The takeaway from these cases is that private entities are regulable in extremely limited circumstances, where either (i) a state constitutions’ First Amendment equivalent protects such speech[6] or (ii) a company town is involved.[7] A recent article on this topic advocates for an extension of the Marsh doctrine to regulate Facebook. [8] The author analyzes Facebook as a global community, which meets the spirit if not the exact letter of Marsh.

Facebook continues to expand its services, further cementing itself into users’ everyday lives. Accordingly, it is becoming more plausible that the Marsh framework could be applied to protect Facebook users’ free speech rights. Regardless of whether Marsh can be expanded to cover Facebook users’ speech or whether the state action doctrine is adapted to the digital era, it seems inevitable that Facebook users’ speech rights will be addressed by courts soon. Hopefully courts will recognize the importance of First Amendment protection in this context, especially as Facebook and other social media websites continue to grow as major social and political outlets for speech in America.

 

[1] Marsh v. Alabama, 326 U.S. 501 (1946).

[2] Id. at 506-08.

[3] Id. at 502-04.

[4] Id. at 509.

[5] See, e.g., NLRB v. Babcock & Wilcox Co., 351 U.S. 105, 112 (1956) (holding that the First Amendment does not protect labor unions from distributing leaflets in a private parking lot because other means of communication were available to the unions); see also Lloyd Corp. v. Tanner, 407 U.S. 551, 569-70 (1972) (holding that the First Amendment does not protect protesters at a private shopping mall because the mall’s accessibility to the public does not automatically trigger First Amendment protection).

[6] See, e.g., PruneYard Shopping Center v. Robbins, 447 U.S. 74, 88 (1980) (holding that state constitutional provisions may protect individuals’ speech rights, even where the First Amendment does not).

[7] See, e.g., Marsh, 326 U.S. at 509.

[8] Trevor Puetz, Facebook: The New Town Square, 44 Sw. L. Rev. 385 (2014).

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