There have long been some laws that, in a different universe, raise problems that really can’t be reconciled with constitutional rights. Rent control, for one example. What authority does the government have to tell a landlord what rent he can charge a tenant? Anti-discrimination is another example. While the government can’t discriminate, what authority does the government have to tell individuals they can’t do so?
Of course, we acknowledge that these laws lead to a common good and so we indulge some legal legerdemain to rationalize why it’s okay for the government to tell private individuals and businesses how to function. We hitch the wagons to things like commerce and public access, and stretch connections to their breaking point and beyond to achieve goals we find desirable. This isn’t a discussion about whether laws prohibiting discrimination are bad, but what authority the government has to dictate the terms and conditions of citizenship and commerce.
Eugene Volokh has taken this to the web in a law review article in process.
Say that the U.S. Postal Service refused to allow the mailing of KKK, Antifa, or anti-vax publications. That would be unconstitutional, however much we might appreciate the desire of USPS managers to refuse to participate in spreading evil and dangerous ideas. And though UPS and FedEx aren’t bound by the First Amendment, they too are common carriers and thus can’t refuse to ship books sent by “extremist” publishers.
Likewise for phone companies, whether land-line monopolies or competitive cell phone providers. Verizon can’t cancel the Klan’s recruiting phone number, even if that number is publicly advertised so that Verizon can know how it’s being used without relying on any private information. To be precise, the companies need not be common carriers as to all aspects of their operation: They can, for instance, express their views to their customers in mailings accompanying their bills, without having to convey others’ views. But they are common carriers as to their function of providing customers with telephone communications services.
There are, of course, obvious distinctions between the postal service, phone companies and the internet. Yet, do those distinctions suffice to make social media off-limits as a putative “common carrier”? Eugene argues not necessarily.
A. The General Constitutionality of Compelled Hosting
I think this sort of common carrier rule would be constitutionally permissible,
on the strength of three precedents:
- PruneYard Shopping Center v. Robins, which upheld a state law rule that
required large shopping malls to allow leafleters and signature gatherers (a
rule that has since been applied by some lower courts to outdoor spaces in
- Turner Broadcasting System v. FCC, which upheld a statute that required
cable systems to carry over-the-air broadcasters; and
- Rumsfeld v. FAIR, which held that the government could require private
universities to provide space to military recruiters, alongside other recruiters.
These cases, put together, establish several basic principles.
One of the curiosities of a legal system predicated on precedent is that a step onto the slippery slope can prove the beginning of a slide into the abyss. While it’s a logical fallacy that the slide will happen, that isn’t to say it won’t. Each of these decisions reflected outcomes that many supported and the Court believed justifiable under their peculiar facts and circumstances. Yet in the process, the holdings gave us such squishy notions as this.
“Requiring someone to host another person’s speech is often a perfectly legitimate thing for the Government to do.” So wrote Justice Breyer, and the cases he cited (PruneYard and Rumsfeld), as well as Turner, fully support that view. PruneYard expressly rejected the claim “that a private property owner has a First Amendment right not to be forced by the State to use his property as a forum for the speech of others.” Turner and Rumsfeld rejected similar claims.
Notably, Eugene relies not on the rationales, but the conclusions of these decisions to make his point that a private property owner has no First Amendment right to “not to be forced by the State to use his property as a forum for the speech of others.” All that’s needed is a socially desirable result and rubric. There’s no doubt that relying on precedent is critical to maintaining a stable society, but is this a case of “remember the rubric and forget the rationale,” or have we now burned freedom on the cross of good intentions?
If social media are “the modern public square,” the law may constitutionally treat them (at least as to certain of their functions) the way physical public squares can be treated.
It’s rather surprising that Eugene has come out this way, and while he’s one voice on the issue of First Amendment law, he is an important voice. Indeed, he has a fan base that takes his every work as gospel. Is he right? Does precedent mean that private social media companies can be declared “common carriers” and compelled to do as the government bids? They are, de facto, the modern public square and it’s not as if that wasn’t their goal in the first place. Is it too much, then, to require them to assume the public function of the public square? Do they enjoy the benefit without the duty that goes with it?
Do the nuanced distinction behind the rubrics of Pruneyard, Rumsfeld and Turner render them inapposite, or has the law established that no private enterprise, no business, and, perhaps no individual, is beyond the reach of governmental mandate when there is a social good (assuming you agree that it’s a social good, even if beauty is in the eye of the beholder) to be had?
*Tuesday Talk rules apply.