State Constitutions as a Check on the New Governors: Using State Free Speech Clauses to Protect Social Media Users from Arbitrary Political Censorship by Social Media Platforms

• Publication year: 2019

State Constitutions as a Check on the New Governors: Using State Free Speech Clauses to Protect Social Media Users from Arbitrary Political Censorship by Social Media Platforms

Elijah O'Kelley

STATE CONSTITUTIONS AS A CHECK ON THE NEW GOVERNORS: USING STATE FREE SPEECH CLAUSES TO PROTECT SOCIAL MEDIA USERS FROM ARBITRARY POLITICAL CENSORSHIP BY SOCIAL MEDIA PLATFORMS^*

ABSTRACT

Social media platforms like Facebook are increasingly the arbiters of what political viewpoints get the light of day. As more people become active on social media, including using it as a primary news source, and as political speech increasingly moves onto these platforms, they will continue amassing the power to control news narratives, the size of speakers' bullhorns, and the ideas that get discussed. Moreover, these platforms will likely face increasing external pressures to silence certain viewpoints deemed objectionable or offensive, whatever those views may be. The United States Constitution provides no check on this power. As private actors, social media platforms can ban whatever speech they want, and for whatever reason, subject only to market pressures. Simply, the First Amendment, based on its text and longstanding precedent, does not apply.

There may be another way to safeguard speech online, however. This Comment proposes looking to a different source of law, one all too often overlooked in litigation and scholarship: state constitutions. Nearly all state constitutions have free speech clauses that are textually different from the First Amendment in ways suggesting state action requirements can be softened or even jettisoned. Moreover, a handful of states have interpreted their free speech clauses as being broader than the First Amendment and applying to certain private actors—an approach with express approval by a unanimous United States Supreme Court. This case law provides reasoning applicable to a new and modern dilemma: the gravitation of political speech to social media platforms.

This Comment reviews those state free speech clauses and that case law to develop an approach state courts can adopt and apply to social media platforms. Using Facebook as an example, it pulls from the main themes of the relevant state cases to establish that the reasoning is extendable to Facebook and is even a better fit for it than for the private actors in the original cases. It then explores the nuances of what power Facebook should retain to moderate content,

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concluding that, although the underlying viewpoints of political speech are maximally protected, the platform can continue to regulate the specific way they are expressed if those expressions involve concrete language like slurs and other epithets unnecessary for the expression of the viewpoint. This approach allows Facebook to maintain much of its autonomy while creating an incentive for it to err on the side of caution before deleting political speech. And, importantly, it defines a way for courts to act as a check on Facebook's otherwise unchecked power to control much of what political speech is seen online.

INTRODUCTION ............................................................................................. 113

I. WHY STATE CONSTITUTIONS ARE WORTHY VEHICLES FOR PROTECTING FREE SPEECH ONLINE ................................................... 119

A. The Text of the Fifty State Free Speech Clauses ...................... 119
B. The U.S. Supreme Court has Approved State Courts Applying State Constitution Free Speech Clauses to Private Actors ....... 124

II. FOUR MAIN THEMES ACROSS THE RELEVANT STATE CASE LAW ..... 127

A. Political Speech Is Protected .................................................... 127
B. Shopping Centers Are Defined as Functional Equivalents of Traditional Public Forums ....................................................... 130
C. Courts Rely on Interest Balancing Because of Competing Property and Free Speech Rights ............................................. 133
D. Courts Allow Property Owners to Enact Reasonable Time, Place, and Manner Restrictions ............................................... 137

III. APPLYING THIS LAW TO SOCIAL MEDIA PLATFORMS ....................... 140

A. Existing Case Law Naturally Extends to Facebook .................. 140

1. Facebook Is the Functional Equivalent of a Traditional Public Forum ...................................................................... 140
2. Balancing Test Factors Support Applying State Free Speech Clauses to Facebook .............................................. 143

B. Facebook Should Retain the Power to Moderate Content for Specific and Intentional Slurs, but not the Underlying Political Viewpoint.................................................................................. 145

1. Outline of Principles........................................................... 146
2. Application of Principles.................................................... 149

C. U.S. Supreme Court Precedent Revisited ................................. 154

IV. POSSIBLE BARRIERS FOR STATE COURTS .......................................... 155

A. Personal Jurisdiction................................................................ 156
B. Section 230 of the Communications Decency Act .................... 158

CONCLUSION ................................................................................................. 160

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INTRODUCTION

Social media platforms are giants, and Facebook¹ is the chief behemoth.² Around sixty-eight percent of all adults in the United States use Facebook, most of them at least daily and half of them many times a day.³ Other than adults older than sixty-five, majorities use Facebook across various demographic groups, including income, education, geographic location, sex, race, and age.⁴ Younger people tend to use Facebook at even higher rates—around eighty percent of all adults aged eighteen to fifty use Facebook.⁵

It is no surprise, then, that political speech is gravitating toward social media. Sixty-eight percent of adults now get their news from some social media platform, and forty-three percent get news from Facebook.⁶ Not only is social media increasing in prevalence, but broadly speaking it has surpassed declining traditional news sources like print,⁷ and online news generally is on track to

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surpass television news.⁸ Social media and online advertising are also increasingly important for political activism⁹ and campaigns.¹⁰

The United States Supreme Court recently recognized the importance of social media for speech: "[T]he most important place[] ... for the exchange of views, today ... is cyberspace ... and social media in particular."¹¹ In the same case, the Court struck down a state law prohibiting sex offenders from accessing social media platforms like Facebook because these platforms are so important for free speech that a law blocking access to them violates the First Amendment.¹²

The Court did not address, however, whether any actions the platforms take to curtail political speech violate the First Amendment. And it is unlikely to do so. Based on longstanding precedent, Facebook is not bound by the First Amendment because it is a private actor and the Amendment applies only to state action.¹³ Therefore, there seems to be little to nothing in federal law

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preventing social media platforms from banning all users who voice an unfavorable opinion,¹⁴ whether that opinion is that immigration should be limited or that taxes should be increased on the wealthy.

It is easy to imagine scenarios where platforms may engage in this kind of content moderation, whether because of external pressures¹⁵ or internal biases.¹⁶ Given their continually growing power to shape what news and ideas appear before users, and given their massive number of users, it is not unfathomable that these platforms could use their positions to effectively delete certain speakers, and possibly even certain ideas, from public discourse.¹⁷ Indeed, social

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media platforms have deleted accounts¹⁸ —which is called "deplatforming"—and it appears effective at limiting the reach of speakers and their ideas.¹⁹ This is no small power, and it is one that is nearly absolute—leading scholars to refer to the platforms as the "New Governors" and "Sovereigns of Cyberspace."²⁰ Though it may be a technical logical fallacy to call this situation a slippery slope, the road certainly has a few banana peels on it.

Because social media platforms are increasingly where speech occurs, and because they have the power to prohibit speech arbitrarily, and because free speech is crucial for public discourse and society,²¹ it is worth asking whether anything within the law can check this power. Multiple ideas have been proposed, including fitting social media platforms into exceptions to the state action doctrine,²² or revising the state action doctrine itself.²³ Rather than looking to federal law, this comment will look to another source of law: state constitutionalism.²⁴

The basic idea of state constitutionalism is that state courts should interpret state constitutional provisions independently of similar United States

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constitutional provisions²⁵ instead of "lockstepping"²⁶ with federal courts' interpretations. This is especially the case when state courts interpret state constitutions to provide greater protections of individual rights than the united States Constitution.²⁷ In other words, when interpretations of the United States Supreme Court come up short, state courts should step up to "fill the constitutional gaps."²⁸

The merits of state constitutionalism are far from an underdiscussed topic.²⁹ Judge Jeffrey S. Sutton of the United States Court of Appeals for the Sixth Circuit recently distilled the strongest arguments for state constitutionalism in a widely praised³⁰ book.³¹ First, state courts do not face the same practical constraints as the United States Supreme...