DIGITAL SHOPPING MALLS AND STATE CONSTITUTIONS - A NEW FONT OF FREE SPEECH RIGHTS?

• Author: Jaffe, Andrei Gribakov

TABLE OF CONTENTS

1. INTRODUCTION 269 II. APPLYING PRUNEYARD TO THE INTERNET 273 A. The Pruneyard Decision(s) 273 B. Evolution of the Pruneyard Doctrine 274 C. Extending pruneyard Beyond Shopping Malls 276 III. FEDERALISM BARRIERS TO APPLYING PRUNEYARD TO THE 278 INTERNET A. The Current Bulwark--CDA [section] 230 279 B. Dormant Commerce Clause 283 C. Federal Common Law--Is There a Dormant Speech 286 Clause? IV. REVISITING PRUNEYARD TODAY: CORPORATE FIRST 288 AMENDMENT RIGHTS AND REASONABLE RESTRICTIONS V. CONCLUSION 291 I. INTRODUCTION

   In May 2019, Donald Trump tweeted that he is "continuing to monitor the censorship of AMERICAN CITIZENS on social media platforms" and declared that the government is "monitoring and watching[] closely." (1) In response, Orin Kerr dryly noted, "[g]overnment to review decisions of private companies to ensure protection of free speech." (2) Government monitoring of private actors to protect individual free speech interests intuitively seems at odds with the First Amendment doctrine--which focuses on the protection of free speech from government actors. (3) This conception stems from the state action doctrine--the Constitution only protects individuals from government action, and not actions taken by private actors. While this doctrine has been consistently and roundly criticized, (4) it remains a fixed bright-line rule in our constitutional jurisprudence today. (5)

   In 2019, the Supreme Court reaffirmed the vitality of the state action doctrine in Manhattan Community Access. (6) The Court was asked to consider whether providing public access channels on a privately owned cable network transformed a private nonprofit into a state actor. (7) The Court found that operating public access channels on cable was not a "traditional, exclusive public function" and "a private entity who provides a forum for speech is not transformed by that fact alone into a state actor." (8) Therefore, the private nonprofit was "not subject to First Amendment constraints on how it exercises its editorial discretion with respect to the public access channels." (9) The full meaning of Manhattan Community Access will be debated in lower courts and academic circles for several years. (10) For now, the decision reinforces the argument that social media platforms (private actors) are not subject to First Amendment restrictions when they delete posts or ban individuals for violating their policies. (11) In fact, under the modern conception of free speech rights, (12) social media platforms could argue that this type of tweet by the President restricts their First Amendment rights by creating a "chilling effect" on their editorial choices. (13)

   The debate today between scholars, advocates, and others around social media platforms revolves around several contested legal issues and norms. One major axis of debate centers on whether social media platforms are in fact private actors. Some scholars are firmly convinced that social media platforms are private actors and so not subject to the First Amendment, (14) while others have attempted to push the boundaries of the state action doctrine to include online social media platforms. (15) A second axis of debate focuses on existing content moderation policies and whether private regulation is a good substitute for the First Amendment and government regulation. (16) Lastly, the Communications Decency Act ("CDA"), a federal statute, is another ingredient in the current debate on Internet policy and regulation. CDA [section] 230 (17) immunizes providers of interactive computer services, such as social media platforms, from liability for third-party content. This federal law has been the cornerstone of Internet policy and regulation since 1996, but its viability has come under increasing scrutiny in the last several years. (18) Importantly, the debate today around the Internet, free speech, and the right regulatory framework (if any) solely revolves around the Federal Constitution and a nationwide policy. Should it?

   States, conceivably a co-equal partner in the structure of American government, have begun to take notice of the national debate and attempted to respond. In 2019, legislators in California and Texas introduced bills relating to online speech and social media platforms. (19) As the attempts of social media platforms to regulate content continue to make news, (20) the likelihood that states will ask whether they have a role in the current debate increases. This would not be the first time that states regulate what initially appeared to be a solely national issue in the absence of congressional action. (21)

   This Note eschews the focus on federal rights and nationwide policy. Instead, the Note looks to state constitutions as the potential source of free speech rights online and considers the states' ability to avoid the limitations of the federal state action doctrine. Specifically, this Note revisits Pruneyard Shopping Center v. Robins? (2) which affirmed that states could extend greater free speech protections under state constitutions than the Federal Constitution would otherwise mandate. (23) Part II builds out the legal argument through a discussion of Pruneyard and how California courts have approached its holding since the original 1979 state supreme court decision. Part III considers federalism issues and the likely challenges to extending these rights online. Part IV revisits Pruneyard and its underlying assumptions and considers how a court may balance these interests in the modern First Amendment framework. Part V concludes.

2. APPLYING PRUNEYARD TO THE INTERNET

   1. The PruneyardDecision(s)

      On a Saturday afternoon (24) in the late 1970s, a group of high school students set up a table within the Pruneyard shopping center in Campbell, California to solicit signatures. (25) The students planned to collect signatures for a petition opposing UN Resolution 3379 (declaring that "Zionism is a form of racism and racial discrimination") (26) but were soon stopped by a security guard. (27) The guard notified the students that because they lacked permission to solicit, they would have to move to the public sidewalk area. (28) The mall had a general policy of prohibiting "any tenant or visitor [from] engag[ing] in publicly expressive activity, including the circulating of petitions, that is not directly related to the commercial purposes." (29) The students complied and subsequently brought suit to enjoin the shopping center from denying access; the trial court rejected the suit, and the state court of appeal affirmed the trial court decision. (30)

      In a 4-3 decision, the California Supreme Court reversed and held that the California Constitution protects free speech and petition rights "when reasonably exercised" in privately owned shopping malls. (31) The opinion does not mention the state action doctrine once. But the public nature of shopping centers where the public is invited and their ability to "provide an essential and invaluable forum for exercising [speech and petition] rights" appear to underpin the court's holding. (32) The court further noted that this decision did not mean that "those who wish to disseminate ideas have free rein" (33)--property owners could still impose reasonable time, place, and manner restrictions. In addition, the court stressed that the defendant was not an individual or "modest retail establishment" but a large twenty-one-acre shopping center. (34)

      In 1980, in a 9-0 decision, the U.S. Supreme Court affirmed. (35) Justice Rehnquist noted that "it is well established" that states may impose reasonable restrictions on private property as long as they do not run afoul of the Federal Constitution. (36) Thus, the Court affirmed that states could provide greater individual rights under their constitutions, provided these state rights did not violate the Federal Constitution. The Court then addressed the First Amendment and Fifth Amendment claims brought by the shopping center. (37) First, the Court noted that extending free speech rights into privately owned shopping malls "clearly does not amount" to a Fifth Amendment violation in part because the shopping center could restrict the activity through time, place, and manner regulations. (38) In addition, the shopping center's First Amendment claim failed because the shopping center was open to the public and could disavow the message, there was no "prescribed position or view" required by the state, and the shopping center's exclusion of individuals was not an editorial function. (39)

   2. Evolution of the Pruneyard Doctrine

      Today, Pruneyard remains good law, though the California Supreme Court has pruned the breadth of the initial decision. In 2001, a plurality of the court read the state action doctrine back into Pruneyard and held that apartment tenants did not have a state constitutional right to distribute leaflets in a privately owned apartment complex. (40) Six years later, the court revisited Pruneyard to consider whether a mall could prohibit boycotts or similar activities of stores located in the shopping mall. (41) The court found that "[p]ohibiting speech that advocates a boycott... is not content neutral" and applied strict scrutiny. (42) Importantly, the majority opinion did not consider the threshold question of whether there was state action, instead reiterating that a privately owned shopping mall could be a public forum if opened to the public. (43) In 2012, the California Supreme Court appeared to formalize the public forum analysis, determining that areas adjacent to stores' entrances and exits in a mall are not a public forum under Pruneyard. (44) In doing so, the court appears to have limited the application of Pruneyard to the common areas of shopping malls or centers. (45) The court has not applied Pruneyard since 2012.

      Today, the state and federal jurisprudence primarily differ in that California courts conduct an analysis of the character of the property...