President Trump’s proposed executive order on “Preventing Online Censorship” is aimed at protecting the “bedrock” and “sacred” right to free speech on online platforms, which are the “21st-century equivalent of the public square.” It misses the mark and instead misconstrues the First Amendment and the free speech rights it guarantees.
The First Amendment’s protection of speech is not a promise that private entities will permit the use of their property to host or promote anyone’s speech. It is a guarantee that the government may not compel speech, which actually provides a right to editorial discretion to online platforms.
For instance, in a Supreme Court case named Lloyd Corp. v. Tanner, the Court found that a shopping mall was not required to allow the distribution of handbills on its grounds and that individuals do not have a blanket First Amendment speech right applicable on private property. In reaching its holding, the Court distinguished private actors, like online platforms, that act in a purely private capacity, from company towns which, in essence, erect a full municipal enterprise on their private property and become a de facto government.
That’s where the executive order really gets the Constitution wrong. Online platforms like Facebook, Google, and Twitter are much more akin to shopping malls than they are to company towns in this important sense: moderation of platforms is private action, not government action. Users of social media services want to distribute the online version of handbills in the form of posts, videos and tweets. The online platforms are private property, and as soon as users act outside of the terms of service, they are trespassers or uninvited guests and are subject to expulsion.
Online platforms are not exercising governmental functions delegated to them by the government, nor are they performing such a full spectrum of municipal powers as to resemble a de facto government. Further, online platforms do not lose their private character because they are big enterprises open to the public. In fact, they are even less public than malls because one usually needs to create a profile to use all of an online platform’s functionality.
The case cited in the executive order, Pruneyard Shopping Center v. Robins, did not overrule Lloyd and find the First Amendment directly applies to private spaces open to the public. There, the California Constitution gave broader free speech rights in certain private spaces open to the public than the federal Constitution. The Supreme Court found that while the First Amendment does not demand private property owners open their property to the public for speech, a state constitution may be interpreted to allow leafletting in shopping malls, and this would not necessarily implicate the Fifth Amendment’s protection against takings. Nothing about Pruneyard is applicable to President Trump’s proposed executive order.
Moreover, insofar as online platforms engage in “editorial control and judgment”, they can’t be compelled to publish speech with which they disagree. This is an actual “bedrock” tenet of the First Amendment, and Section 230 does nothing to change it.
Consider a recent example of Google and Facebook removing posts that contain information that conflicts with official World Health Organization guidance on the COVID-19 pandemic.
Under the First Amendment, this is a classic example of editorial control and judgment very much like what newspapers do. And the Supreme Court has been clear that — even where newspapers have market power and the ability to write editorials which were “unfair” to a candidate or an issue, the government cannot interfere with the right to editorial discretion by compelling newspapers to publish replies.
Facebook, Google, and Twitter have both First Amendment and property rights over their platforms. This includes the right to moderate content on news feeds, search results, and timelines.
In the case of Facebook, this means they can add fact-checks to or remove posts they believe are based upon misinformation, remove posts promoting causes they disagree with, and reduce the reach of groups producing what they think is misinformation.
Similarly, Google has the right to scrub what they believe is misinformation from search results. Twitter as well can do what it believes is necessary to promote good information and weed out the bad, including fact-checking the president.
Whether they are correct in their judgment or should take this role upon themselves is a separate question. The First Amendment guarantees their right to do so. The government should not be in the business of fighting culture wars against private companies. Even if online platforms engage in favoritism or bias, a better way of dealing with the issue would be for concerned users to adopt a competitor service. President Trump’s executive order calling for regulation of online platforms because he disagrees with how they use their First Amendment rights should be resisted.
Ben Sperry is Associate Director of Legal Research at the International Center for Law & Economics, where he focuses on the intersection of civil liberties and government regulation.