DE FACTO STATE ACTION: SOCIAL MEDIA NETWORKS AND THE FIRST AMENDMENT.

• Author: Domer, Paul

INTRODUCTION

On October 16, 2018, the world was witness to an immense shock--You-Tube, the video streaming website, was down for over an hour. (1) YouTube's dominance on the internet could be seen in the Google (another internet giant) search trends for the same day. Google searches for YouTube normally far outpace searches for the other leading video streaming sites, Vimeo and Dailymotion. (2) On October 16, those sites saw a huge uptick in searches. (3) Even then they were outpaced by YouTube, with far more people searching for answers to their YouTube issues than looking for alternatives. (4) This resulted from YouTube being down for only one hour.

The dominance of a select few social media companies on the internet raises important implications for the free flow of information and ultimately the law. Traditionally, courts have treated the right of free speech--like all constitutional rights in the American system--as a protection against government intrusion only. (5) This limitation reflects the longstanding belief that government, given its immense power, is the primary threat to liberty. (6) The exception, for when a private entity is engaged in a "public function," has been narrowly construed by the courts. (7)

Technological change has in turn changed the variables that are used in this calculus. While governments, if shorn of constitutional restraints, retain the power to censor, private social media companies arguably possess the same power. A great deal of speech, including political speech, is conducted online. (8) Further, a huge amount of this activity on the internet can be traced to just five companies: Facebook, Microsoft, Apple, Amazon, and Alphabet, the parent company of Google. (9) Of those, YouTube and Facebook are dedicated social media sites. Though private entities, the social media giants are the forums in which public discourse takes place. Facebook alone is host to more than two billion users, (10) a larger population than any country. (11) Moreover, the social media entities hold themselves out as public forums where ideas can be freely exchanged. (12) They have become, despite their private ownership, heavily intertwined with the very public function of speech.

"A right of free correspondence between citizen [and] citizen... whether public or private... is a natural right; it is... one of the objects for the protection of which society is formed, [and] municipal laws established." (13) Thus Thomas Jefferson described the kinds of interactions that now take place on social media, interactions necessarily involving speech. Tellingly, he mentioned that private interactions, not only those involving a state actor, were part of the natural right. Typically, however, American courts only recognize governments as threats to freedom of speech, under the state action doctrine. (14) A case involving an exception to the state action doctrine in the realm of free speech only reached the U.S. Supreme Court in 1946. In that case, Marsh v. Alabama, a Jehovah's Witness was arrested and convicted of trespassing for proselytizing on a public sidewalk that nonetheless was, like everything else in the "company town," privately owned. (15) The Court reversed, holding that the First and Fourteenth Amendments applied against a private actor if it exercised all the powers and responsibilities traditionally associated with a government--policing, utilities, and traffic control, for example. (16) Writing for the majority, Justice Black declared, "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." (17)

The Court later circumscribed the very circumscriptions of property owners' rights. In Lloyd Corp. v. Tanner, (18) and again in Hudgens v. NLRB, (19) the Court severely limited the ability to claim a right of free speech in spaces open to the public but privately owned. Both cases involved protests in public shopping areas that were private property, and in both the Court reasoned that because the property owners did not exercise the level of governmentlike control as did the company town in Marsh, the exception to the state action doctrine did not apply. (20) The Court did uphold a challenge to private speech restrictions in PruneYard Shopping Center v. Robins, but only because it deferred to the California Supreme Court's broader interpretation of that state's constitution. (21)

The line of cases stretching back to Marsh all involved access to privately owned physical spaces. The rise of the internet has created new quandaries. Is the internet akin to a privately owned shopping space open to the public? Or is it that the modern public forum is, at the very least, a "digital company town," and thus where constitutional protections apply? The Court has not yet taken a case involving free speech on the internet in a dispute between private actors. In 2017, it did take a case involving state-imposed restrictions on access to social media. In Packingham v. North Carolina, the Court struck down a state law banning registered sex offenders from using social media. (22) Writing for the majority, Justice Kennedy declared access to public forums a "fundamental principle of the First Amendment" and social media as the primary place for exchange of views in the modern world. (23) But that case explicitly dealt with government action, and whether the internet should be considered a public forum in speech disputes among private actors was left unresolved. The lower courts have produced rulings both in favor (24) and against (25) the proposition that the state action doctrine is less strict when dealing with the internet.

It is almost indisputable that the internet serves an indispensable role in modern public discourse. Social media stands out among online content for both its size and scope. Within the United States, more than 60% of internet users--nearly 170 million people--use Facebook, (26) and some 58% of Americans use YouTube. (27) And Americans do not just use those sites for finding friends and watching cat videos. In 2017, 43% of Americans frequently got their news online, to the detriment of traditional sources such as television. (28) Some 45% of Americans get at least some of their news from Facebook alone. (29)

This reliance on social media has had an immense impact on the political sphere. Political campaigns have turned to "microtargeting"--gathering data on individual social media users and then targeting advertisements specifically at those individual users. (30) President Barack Obama's campaign made widespread use of microtargeting to get out the vote in support of his reelection in 2012. (31) The social media presence of Donald Trump's campaign in 2016 is already notorious, but it was undoubtedly effective. Microtargeting by the Trump campaign focused on key swing states like Michigan and Wisconsin. (32) The Trump campaign focused nearly half of its spending on digital media, and its social media microtargeting has been shown to have boosted voter turnout among Republican ranks. (33)

Social media sites recognize their influence, and they have sought to exercise a level of control over speech on their platforms akin to government regulation. Among social media sites, Facebook stands out for its sheer size. Facebook recognized the political impact advertising on its site had, and after the 2016 election required "Paid for by" disclosures on political advertisements on its site. (34) Federal law already requires such disclosures for political ads in traditional media; (35) now the same has been achieved for a huge portion of online political advertising, initiated by a private actor, not the government. With regard to all forms of content on its site, Facebook imposes its "Community Standards," which prohibit any language attacking "protected characteristics" such as race or gender. (36) In contrast, the Constitution precludes the government from any content-based restrictions on speech outside a few narrow categories like defamation. (37) For the millions of Americans who use Facebook regularly, they are entitled to less freedom of speech on that platform than they are accustomed to elsewhere, and entirely at Facebook's discretion.

Access to social media platforms is no small matter for modern discourse. Some commentators have explicitly called Facebook a "company town," (38) and more importantly have pointed out that joining this modern social commons is hardly optional for anyone wanting a public voice. (39) This digital company town has few precedents, making it difficult to fit a right of access to social media into existing jurisprudence. The closest historical parallel may be Hollywood in the era of the Hays Code, during which all films produced in the United States had to meet the moral standards of a small cadre of censors who operated completely free of the government. (40) This had a stultifying effect on American cinema for decades, but even then it was restricted to a single medium. Social media's reach in modern times is even more pervasive.

Objectors might claim that social media companies have their own free speech rights that would be curtailed if they could not control their own content. They would be right--if social media companies counted as publishers. (41) But the social media giants of today do not hold themselves out as publishers. Facebook (42) and YouTube (43) alike advertise themselves as places where the user, not the company, can produce and post content. This self-image comports nicely with the law, for since 1996 a federal statute defines online content hosts as not being publishers and immunizes them from any kind of civil liability. (44) If social media sites are not publishers in any other respects, there is no reason to treat them as such for freedom of Speech purposes.

This Note argues that the social...