Published April 5, 2021
Today Justice Thomas appended an intriguing concurrence to a short decision concerning whether President Trump had violated the First Amendment by blocking a limited number of people from his Twitter account’s comment threads. The Second Circuit had found the president’s Twitter account to be a public forum subject to free-speech protections but, due to a change in presidents, the court found the case moot and took the extra step of vacating the decision entirely in a two-sentence order. This signals that the high court is not ready to deem government Twitter accounts public forums, but Justice Thomas wrote separately and at length to question whether the Twitter platform itself is the true public forum worthy of regulation. After all, although the case was mooted by a change in administration, it was also mooted by Twitter banning President Trump from the platform. Which begs the question, who has more actual power to suppress speech, President Trump, who excluded some users from his comment thread, or the company that evicted him from the platform permanently and cut him off from his 89 million followers?
According to Justice Thomas, “If part of the problem is private, concentrated control over online content and platforms available to the public, then part of the solution may be found in doctrines that limit the right of a private company to exclude.” He cites historical regulations and requirements placed on “common carriers,” such as railroads and phone companies, requiring them to serve the general public, and similar laws governing gathering places such as restaurants and amusement parks. This is an open invitation for Congress to step in and rein in the power of Big Tech in the name of free-speech principles.
But Justice Thomas leaves us with a tantalizing question — regardless of any congressional action, does the First Amendment already apply to Big Tech companies because they now have more power to suppress public speech than government? Per Justice Thomas, “If the aim is to ensure that speech is not smothered, then the more glaring concern must perforce be the dominant digital platforms themselves. . . . The extent to which that power matters for purposes of the First Amendment and the extent to which that power could lawfully be modified raise interesting and important questions.”
Interesting and important indeed. Justice Thomas left us a clue to how this might play out by twice citing a case from 1980 called PruneYard Shopping Center v. Robins. There, the Supreme Court held that California could require private malls to allow pamphleteers seeking to orderly distribute reading materials inside the malls without infringing on the free-speech rights of the mall itself. This means that if a court today, for example, required Amazon to reverse its ban on my EPPC colleague Ryan Anderson’s book on transgender policy, it would not be an unconstitutional forced endorsement of Anderson’s message because no one reasonably believes Amazon endorses the contents of any of the other tens of thousands of books it sells.
PruneYard came almost 35 years after the Supreme Court first held in Marsh v. Alabama that the free-speech clause can apply to speech occurring on purely private property. In Marsh, the court found that the First Amendment prohibited a “company town” from using the police or courts to enforce trespassing laws against Jehovah’s Witnesses who were handing out literature on a purely privately owned and maintained sidewalk.
According to the court, “[Private] ownership does not always mean absolute dominion. The more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it. . . . Since their operation is essentially a public function, it is subject to state regulation.” [emphasis added]
The court continued, “Whether a corporation or a municipality owns or possesses the town, the public in either case has an identical interest in the functioning of the community in such manner that the channels of communication remain free. . . . To act as good citizens, they must be informed. In order to enable them to be properly informed, their information must be uncensored. There is no more reason for depriving these people of the liberties guaranteed by the First and Fourteenth Amendments than there is for curtailing these freedoms with respect to any other citizen.”
The Marsh decision is still good law. Perhaps it will soon be applied to the equivalent company towns and town squares that so many of us inhabit in the digital age known as Google, Amazon, and Twitter.
Roger Severino is Senior Fellow at the Ethics and Public Policy Center, where he heads the HHS Accountability Project.