The First Amendment and the state action requirement in the age of social media

-- By LaraNurick - 22 Apr 2018

Background

The First Amendment guarantees Americans freedom of expression by prohibiting government/state action restricting individuals' rights to speak freely. This foundational constitutional principle ensures that speech, including "vehement, caustic, and unpleasantly sharp attacks" critical to political choice, is heard. Accordingly, the US' conception of free speech espoused by the First Amendment is arguably globally the most expansive, with the highest tolerance for hate speech.

Notwithstanding alternative channels of communication and irrespective of its objective merits, significant political communication today has migrated to, and regularly occurs on, private nongovernmental social media platforms like Facebook and Twitter. This may become increasingly problematic as such platforms, if deemed unconstrained by the First Amendment, are given free rein to self-regulate their users' speech.

Yet the application, and the extent of protection, offered by the First Amendment in this private context is problematized and circumscribed by the First Amendment's state action requirement. Whilst the case of Marsh indicated that the state action doctrine may be somewhat elastic where private bodies assume governmental functions, an examination of the cases that followed ultimately suggests that the state action requirement may "foreclose [the] use of the First Amendment to constrain the policies and practices" of private nongovernmental online platforms where there is either no or a tenuous assumption of such functions. Nevertheless, the recent case involving President Trump's blocking activities on Twitter and the court's finding that this was unconstitutional suggests that the "distinctly twenty-first century" privately owned mediums of social media are not necessarily immune to the application of the First Amendment. As the court found, the First Amendment may apply in more limited ways to "portions" of the medium where it is used and controlled in a way that is clearly "governmental in nature". Though the court stressed that such a finding does not directly implicate the private platform's conduct but rather attaches to the particular user or governmental use, it may nevertheless offer individual users some First Amendment protection when political communication occurs via social media.

The issue

The text of the First Amendment makes it clear that the doctrine prohibits only governmental interference with free expression and does not apply to private action restricting speech by nongovernmental actors-a "certain amount of state action [is required] to trigger constitutional protection". Thus, in applying the First Amendment, courts have traditionally distinguished "between public institutions which are bound by the First Amendment and private ones which may retain stronger rights to set their own rules".

Contemporaneous with the coalescence of public and private today, "the legal lines" seem "more tangled" such that a purely formalist approach seems harder to maintain, "especially in light of our nation's history of protecting free discourse in the spaces where such speech actually occurs". Nevertheless, for the First Amendment to apply, the threshold question remains: can private internet platforms qualify as state actors?

State action jurisprudence

The state action doctrine has been described as among the "most complex and discordant…in American jurisprudence" because it has undergone expansion and contraction, particularly vis-à-vis its application to privately owned property. This issue was first encountered in Marsh, where due to the "very special situation of a company-owned town" where the company's property had taken on "all the attributes of a town", the court viewed the "company owner [as having] stood in the shoes of the state". It was seen as the functional equivalent of a state municipality such that the private property could be treated as though it were public. Thus, the state action requirement was met, and the First Amendment applied to restrict the company-owned town from restricting expressive activity on the property. This functional rather than formal interpretation was extended in Logan Valley. Notwithstanding dissension, the court applied state action to a privately-owned shopping mall to prohibit it from restricting the public's First Amendment rights where this expression related to the center's store. The court reasoned both by analogy to Marsh, viewing the private shopping center as the functional equivalent of a "business block" open to the public and on the basis that the First Amendment activities related to a store situated in an enclave such that other opportunities to convey the message to the intended audience were unavailable. However, in the subsequent case of Lloyd, the court refused to find state action where a privately-owned mall refused the distribution of hand-billing on their private property where the hand-billing had no direct relation to the shopping center and could therefore have distributed these and exercised their speech rights anywhere. Additionally, the court found that the center did not invite the public to use it for "any and all purposes". Distinguishing the case from both Marsh and Logan, the court strictly confined both of those cases to their particular facts. It clarified that Marsh was an anomaly requiring a complete "assumption or exercise of municipal functions or power" to become the functional equivalent of a governmental entity. The court also departed from previous cases insofar as it reiterated that property does not "lose its private character merely because the public is generally invited to use it", especially where the private property is in a business that necessitates public access. Thus, whilst privately owned property may be treated as though it were publicly held for the purposes of the First Amendment, the circumstances where this occurs are narrow.

Social media and state action

While commentators have likened social media platforms to modern town squares given their increasing use by political candidates to communicate with their constituencies, the third-party platform itself-as distinct from its user's use-does not assume, exercise or substitute any governmental or municipal power or stand in the shoes of the state in a way comparable to Marsh and thus does not trigger the First Amendment. Additionally, as Lloyd observed, the availability of alternate communication, which is widely available online, may weigh against the application of the First Amendment on a private platform. However, as President Trump's case illuminated, more confined protection may nevertheless exist for communications that are clearly governmental.

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