Spring 2022 Symposium

Introduction

Central to the First Amendment is the preservation of “an uninhibited marketplace of ideas in which truth will ultimately prevail, rather than to countenance monopolization of that market, whether it be by the Government itself or a private licensee.”[1]

Social media platforms provide a rather pervasive apparatus for said marketplace. They actively recognize their role in the public sphere as communicative platforms. Before the Select Committee on Intelligence, Twitter Chief Executive Officer Jack Dorsey opened testimony saying, “Twitter’s purpose is to serve the public conversation,” underlining an “open and free exchange of ideas.”[2] Similar sentiments were echoed, as Dorsey referred to the platform as a “digital public square.”[3] But site moderation does not allow speech to go unfettered. Private companies develop private mechanisms and algorithms to tow the line on speech and expression, enforced terms of service justified as “development[s] of social norms in speech” and “of general public interest.”[4] Much in the same way speech which incites violence on a government-funded street is unprotected by the First Amendment, private companies develop privately-driven and (presumably) publicly-influenced norms and carve out exceptions for permissible content. But whether the government can promulgate its expressive norms, without administrative interference in a privately-owned sphere, is more complex.

Generally, free speech is intuitively understood to be just that—free. Less intuitive are those penumbral cases concerning what is said, where it happens, and who is allowed to speak. But even without lucidity, courts have not been reluctant to apply old laws to relatively novel forms of communication facilitated by the internet. Free Speech Clause principles are understood, but their application is either wildly evolutionary or stagnant.

Freedom-of-speech jurisprudence is hardly clear, but the 20th-century developments concerning viewpoint discrimination demarcates it as a near “hard and fast rule.”[5] When the government engages in content discrimination, it restricts speech based on subject matter of what a person/group communicates.[6] The court is likely to strike down laws that deal in restricting subject matter.[7] Seen as a more “egregious form of content discrimination” is viewpoint discrimination.[8] Whereas the former dealt with content, viewpoint discrimination actively restricts messages based on the viewpoints or positions regarding the content (i.e. anti-U.S. propaganda and pro-war speeches as opposed to general war sentiments).[9]

Prevailing sentiments in West Virginia Board of Education v. Barnette generally ring true in this area of jurisprudence.

“If there is any fixed star in our constitutional constellation, it is that no official,  high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.”[10]

But questions involving government speech hardly involve a steady application of the free speech clause. Viewpoint discrimation is not a clear call when the government is its principal and proactive agent. Rather, the court generally grants a special exemption to the government when the government itself chooses to speak.[11]

When the government itself is a speaker, the Government Speech Doctrine provides immunity from viewpoint discrimaination restrictions.[12] When the government deals with speech differently because of a viewpoint, the court deems that that treatment is viewpoint discrimination.

Indeed, social media exists in the twilight zone of public forums. Its communicative properties are arguably more rampant than any traditional past or contemporary public forum. And as oft-self-referred public squares, their global reach goes beyond the expectation of 20th-century jurists. But the autonomy private social media companies hold in dictating and enabling content blurs the bright lines.

So can the government be silenced on social media by social media companies? Or is the corollary to that question true: could the government carte blanche promote a viewpoint on social media? These questions hinge on precisely (1) what classification social media is afforded under the Public Forum Doctrine. A forum analysis guides (2) whether the application of Government Speech Doctrine is constitutionally appropriate on social media platforms.

This note examines whether and to what extent the Government Speech Doctrine applies to social media platforms. Firstly, this note delineates the exact nature of settled public forums and precisely how the government acts in such forums. In doing so, this note analyzes both “public” (insofar as they are accessible to the public) forums and privately owned ones. Secondly, this note attempts to analyze and predict what viewpoint discrimination immunity (if any) the Government Speech Doctrine affords the government, whether and when it uses social media and creates a public forum.

Public Forums

The Public Forum Doctrine limits the government’s ability to restrict speech in a public forum.[13] Analysis involving government speech begins with where it speaks. Public forum classification is dualy important. First, it allows courts to analyze whether the government should be allowed autonomy in expressing a message, especially when that message burdens an opposing viewpoint.[14] Secondly, the type of forum largely determines the standard of review the government must undergo to have its expression be constitutional.[15] This note defines and clarifies terms only with respect to the first concern and without concern for the level of scrutiny and whether a specific message meets certain de minimis standards to undergo such scrutiny (i.e. whether a governmental exclusion from viewpoint discrimation would serve a significant governmental end).

Classifying public forums

Perry Educ. Ass'n v. Perry Local Educators' Ass'n established three basic classes of forums: (a)  traditional public forums,[16] (b) designated public forums,[17] and nonpublic forums.[18]

Traditional Public Forums

First, the Perry court establishes traditional public forums as those that have been “immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.”[19] Quintessential public forums are intuitively understood to be public; parks, sidewalks, and streets are examples of a non-exhaustive list where “the rights of the state to limit expressive activity are sharply circumscribed.”[20] Restrictions by the government here must be content-neutral; the government may not discriminate against a viewpoint.

Designated Public Forums

Second, the Perry court established designated public forums as those “which the State has opened for use by the public as a place for expressive activity.”[21] Designated public forums are created when the government designates a “forum generally open to the public even if it was not required to create the forum in the first place.”[22] Simply, when the government opens an area for expressive activity in a place that is not traditionally a place for public expression, they establish a designated public forum. While the state is under no obligation to maintain that the forum here is accessible at all times, so long as the government intentionally opens them, they are afforded the same protection as a traditional public forum. Forums here non-exhaustively include university meeting places, municipal theaters,[23] and temporary art galleries in government buildings where all expression is recognized.[24] The same protections afforded to speakers in a traditional public forum apply to speakers here.

Designated Limited Public Forums

Whereas the aforementioned classifications are broad and rather clear, a subcategory of designated public forums—the limited public forum—welcomes doctrinal confusion. A limited public forum is still intentionally opened by the government and does not have to be maintained perpetually.[25] But it differentiates itself because it may limit the content or subject matter of discussion. For instance, a state university may open a forum specifically for “environmental issues;” and so long as it is open to the public, its topicality power allows irrelevant topics from being discussed.[26] Here, the government can limit the topicality of speech. But it still cannot discriminate against viewpoints, nor can it exclude classes of speakers. If a university opens a room for an environmental discussion, it may limit the type of discussion. It cannot, for example, prohibit members of a climate change denial group from attending.

Nonpublic forums

Thirdly, the Perry court contrasted nonpublic forums as government-owned property “which is not by tradition or designation a forum for public communication.”[27] Mailboxes were the determinative example the Perry court used (46),[28] and examples like airport terminals and polling places extend to this classification. The "First Amendment does not guarantee access to property simply because it is owned or controlled by the government."[29]

Even in-depth comparative legal analysis could understandably fall short of critically distinguishing nonpublic and limited public forums. Linguistics virtually tell us the two are one in the same.

But in comparing nonpublic forums to limited one, a practical test is whether deference is given to the government in determining if a forum is nonpublic. While viewpoint discrimination is still prohibited, deference in determining the non-publicity of a place is practically license to discriminate. The government may decide who may speak and the topicality of the speech, so long as it does not facially discriminate on viewpoints. For example, the government may invite a speaker and limit only that speaker to a military base; in choosing to invite that speaker and no speaker opposing them, the government has effectively chosen its message. So long as there is no de jure viewpoint discrimination, the government can effectively tailor a message here. A nonpublic forum classification allows the government a much stronger theoretical bite than a limited one.

Government Speech Doctrine and Forum Analysis

But whereas the Free Speech Clause[30] restricts viewpoint discrimination in public forums, it does not impose that requirement when the government is speaking.[31] [32] The government at government property often falls outside the scope of forum analysis. Rather than open a discussion to the public, the government can act as an independent agent. When that happens, it is said to “speak for itself.”[33] And when individuals speak for themselves, they can choose to express their own message, without consideration of views they do not want to express. Viewpoint discrimination is permissible when the government speaks.

Matal v. Tam captures the essence of the exemption: if the government speaks, then the Free Speech Clause need not apply. [34] Normatively speaking, there is nothing wrong with the government speaking or being a messenger. There are contributions that the government makes to the marketplace of ideas. And communication is key: the government cannot advance its legitimate goals if it cannot speak.[35]

Summum[36] and Walker[37] tested the limits of the exemptions and likely established the “outer bounds of the government-speech doctrine.”[38] The Government Speech Doctrine does not totally invalidate forum analysis, but operatively, it does precede it. In determining that government speech prevailed in a traditional public forum—a public park, the Supreme Court allowed government speech to clear the public forum’s highest bar.[39] And in rejecting Confederate license plate designs, the government plainly rejected an undesirable viewpoint.[40]

Frameworks for Social Media Content

For forum analysis to apply, the historical threshold question has been whether the government is speaking (favoring Government Speech Doctrine) or whether it is merely providing a public forum for public speech. And despite the Supreme Court’s supposition that platforms are “modern public square[s]”,[41] forum analysis is shockingly unclear. 

The Public Forum Doctrine reflects a concern for public access in expressive activities. The government can, in effect, monopolize a space, and its power to do so is greater than that of a private citizen or private groups. The extent to which a public forum is outweighed by governmental interest in promulgating a government message is unclear, however.

But the government's use of social media uniquely presents a challenge that 20th-century watersheds did not. Take tweets, for example. Tweets made from a politician’s account might implore voters to vote one way or another, promote one policy over another, etc. A message here is established, and control of that message is crucial to the effective operation of the government, hence the prudence of the exemption.[42]

But a novelty of social media is its heightened communicative properties; social media platforms allow user engagement, including engagement with government content. Comment sections, for instance, allow users to very much give public sentiments on posts that the government curated. Public forum analysis has never been clear, in close calls, when the government is inviting speech; nor is it a requirement. Answering to the burden of precisely when the government speaks is not required by the government; this is a judicial function.[43] The government does not have to clarify when it speaks; frankly, that is for us and the courts to decide.

It may be clear and undisputed that the government chooses to speak when it posts content or tweets. But regardless of the forum in which it occurs, privately-owned platforms seemingly are not covered by a traditional understanding of public forum analysis. Restricting comments, blocking private access to public accounts, and tailoring a message all present a unique challenge—occuring not on governmental property but a privately-owned public square.

Lower Courts

While now vacated for mootness by the Supreme Court,[44] the Second Circuit’s Knight First Amendment Institute at Columbia University v. Trump decision offers an instructive approach to the question of where the public forum at least begins. Justice Thomas concurs that the court would “soon have no choice but to address how our legal doctrines apply to highly concentrated, privately owned information infrastructure such as digital platforms.”[45]

The forum analysis proved invaluable when analyzing whether former President Trump’s blocking of social media followers was unconstitutional. The court found that, even in a privately-owned sphere, that Trump’s restriction of access to followers was unconstitutional. The account in question, @realDonaldTrump, was determined to have opened a public forum for “indiscriminate use by the general public.”[46] For the circuit court, the qualitative difference in ownership held no water when the characteristics of a public forum reigned true. As a newly-minted designated public forum, those who interacted with the account were now players protected by the Free Speech Clause.[47]

Similarly, the Fourth Circuit determined that the suppression of commenting privileges on Facebook on a local Board of Supervisors’ page was unconstitutional.[48]   

But the complexity of forum establishment and governmental speech has not been lost in light of Knight and Davison. When governmental officials act within the “ambit of their personal pursuits,” the Free Speech Clause need not apply.[49] When operating social media accounts as tools of governing, then the limited purpose of that medium does not constitute a public forum. But that effectively, even with Knight and Davison, creates a bottomless governmental theory absent any hard-line and codified qualitative descriptions of when public actors in private spheres are merely governing and instead speaking. Moreover, is government speech, if the general sentiment is still true, not vital to our governance?

Complexity within circuits reflects general precedential concerns. One could argue that vacating Knight, while justified as moot, was an exercise of judicial caution. The rules are unclear, because social media platforms are hardly traditional public forums. Nor are they clearly designated or nonpublic ones; the government does not own Facebook or Twitter, nor is it maintaining it. Social media platforms do not afford the same understanding of a traditional forum in 1983.[50] Absent clear rules, a platform’s qualitative differences from traditional forums make rules difficult to apply and hard to swallow when they are applied.

Proposing a New Framework

More than ever, the expressive nature of government speech, but private nature of the platform on which it occurs, obscures applicatiable precedent. When applying both afforestation doctrines, consequences are uneasy.  Regardless of which applies, there is reason to doubt the soundness of the decision either way. Firstly, cases involving Government Speech Doctrine and forum analysis are no stranger to narrow vote counts. But secondly and more importantly, the ugly head of both formulations are not extremities; they are probable in a social media climate.

A public forum permit to not only criticize but doubt the validity of the government’s claims and messaging undermines the government’s ability to govern. COVID-19 messaging from the Center for Disease Control, for example, was scrutinized for the removal of what the agency deemed “misinformation.” But if the courts afford the government speech immunity, they deny the constitutional rights to private speakers, and the stricter scrutiny afforded there is a kiss of death. The gravity of the decision is hardly unfounded, but does it have to be this hard?

To reiterate, social media platforms are presumed private. The current public forum framework is insufficient in clarifying if private venues are suitable for governmental speech.

The following proposition perhaps does not alleviate the gravity of choosing which doctrine is appropriate and the ramifications of each. But it at least justifies the choice it makes as palpable as opposed to opaque.

Framework: Justice Kenndy’s Concurrence in Denver Area

In Manhattan Community Access Corp. v Halleck, the Supreme Court considered whether public access channels administered by a government agency constituted a public forum.[51]

24 years earlier, the court evaded that precise question. The statue in Denver Area

Educational Telecommunications Consortium v. FCC prevented cable companies from censoring content on public access channels.[52] The Cable Communications Policy Act of 1984 prohibited cable companies from controlling what was shown but also alleviated companies of potential liability.[53] The court rushed to a scrutiny analysis but did not dilleniate if public access channels constituted a public forum in its plurality holding.

Justice Kennedy did, however, in his concurrence. Kennedy criticizes the absence of such analysis and, in lieu, gives instructions. Kennedy recognizes the distinct nature of operating under the wing of cable providers; they are inherently private. But, to Kennedy, whether property is private is not particularly instructive in determining whether that avenue is a public forum.[54]  Kennedy finds that public forums, at least public access channels, can exist beyond the confines of government property.

The Court in Halleck adopts this rationale as a starting point. And rather than adopt the precise nature of public forum analysis which offers a rather stringent tripartite approach, Halleck turned on characteristics of a forum. While there is no precedent that recognizes that private actors have to facilitate speech, when the government chooses to act in a private sphere, it can still create a public forum.

Necessity for New Doctrine

Halleck and previously Denver Area empathize an important difference between traditionally understood public squares and private platforms. Indeed, Perry does not address public participation in forums owned by private parties; Denver Area does. For jurisprudence to capture and guard the essence of the Free Speech Clause, courts cannot continually apply a test where private forums are analogized to governmentally inaccessible forums. For legal soundness, they have to distinguish them.

Function should take precedence over form. It may be time to hold that forums are public solely for the function they perform, not their ownership or profitable natures. Courts should strongly consider adding an addendum to their Perry application, either de jure or de facto. For free speech to keep pace with technological difficulty, privately-owned public forums need to be analyzed de novo. This does not preclude that characteristics of accepted forums cannot weigh in cases involving the government on Twitter or Facebook. But it is a simple fact that speech occurs outside the confines of government property—more than any 20th-century court could predict. Moreso than parks or government-owned streets, the contemporary public chooses to communicate through privately-owned public means. Social media is already qualitatively different from parks, but the quantitative broad reach of social media should be enough to raise concern for old laws. It is time the court recognizes the harsh shortcomings of defaulting to forum analysis or merely determining that the government is speaking.

References

[1] Red Lion Broad. Co. v. FCC, 395 U.S. 367, 390 (1969).

[2] Foreign Influence Operations’ Use of Social Media Platforms: Hearing Before the S. Select Comm. on

Intelligence, 115th Cong. (Sept. 5, 2018) (statement of Jack Dorsey, CEO of Twitter).

[3] Id.

[4] Emily Bell, Facebook’s moderation is of public interest. It should be public knowledge., Columbia Journalism Review (May 23, 2017), https://www.cjr.org/tow_center/facebook-moderation-guardian.php.

[5] See Matal v. Tam, 137 S. Ct. 1744 (2017). See also Maura Douglas, Comment, Finding Viewpoint Neutrality in Our Constitutional Constellation, 20 U. PA.

[6] Sable Commc'ns of Cal. v. FCC, 492 U.S. 115, 126 (1989) and Simon & Schuster, Inc. v. Members of the N.Y. State Crime Victims Bd., 502 U.S. 105, 116 (1991).

[7] Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 828 (1995).

[8] Id. at 829.

[9] Id.

[10] W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943).

[11] Matal, 137 S. Ct. at 1757 (2017).

[12] Id. and Rosenberger, 515 U.S. at 833 (1995) (“When the University determines the content of the education it provides, it is the University speaking, and we have permitted the government to regulate the content of what is or is not expressed when it is the speaker or when it enlists private entities to convey its own message.”).

[13] Pleasant Grove City v. Summum, 555 U.S. 460 (2009) [hereinafter Summun].

[14] Int'l Soc'y for Krishna Consciousness v. Lee, 505 U.S. 672, 678 (1992) (citing Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U.S. 788, 800 (1985).

[15] Id.

[16]Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45-46 (1983) (hereinafter Perry).

[17] Id.

[18] Id. at 49.

[19] Id. at 45.

[20] Id.

[21] Id.

[22] Id.

[23] Id.

[24] See Widmar v. Vincent, 454 U.S. 263, 267 (1981).

[25] Id.

[26]Ark. Educ. Tv Comm'n v. Forbes, 523 U.S. 666, 677 (1998) (citing Cornelius 473 U.S. at 802).

[27] Perry, 460 U.S. at 46.

[28] Id.

[29] Id. (citing United States Postal Serv. v. Council of Greenburgh Civic Ass'ns, 453 U.S. 114, 128-29 (1981).

[30] Rosenberger, 515 U.S. at 830.

[31] Id.

[32] Walker v. Tex. Div., Sons of Confederate Veterans, Inc., 576 U.S. 200, 207 (2015). See also 576 U.S. at 208 (“[A]s as a general matter, when the government speaks it is entitled to promote a program, to espouse a policy, or to take a position. In doing so, it represents its citizens and it carries out its duties on their behalf.”).

[33] Bd. of Regents v. Southworth, 529 U.S. 217, 229 (2000).

[34] Matal v. Tam, 137 S. Ct. at 1757.

[35] Id.

[36] Summum, 555 U.S. 460 at 469.

[37] Walker, 576 U.S. at 208.

[38] Matal, 137 S. Ct. 1744 at 1760.

[39] Summun, 555 U.S. 460 at 469.

[40] Walker, 576 U.S. at 216.

[41] Packingham v. North Carolina, 137 S. Ct. 1730, 1737 (2017).

[42] Johanns v. Livestock Mktg. Ass’n, 544 U.S. 550, 560–62 (2004).

[43] People for the Ethical Treatment of Animals, Inc. v. Gittens, 367 U.S. App. D.C. 132, 139-40 (2005).

[44] Biden v. Knight First Amendment Inst. at Columbia Univ., 141 S. Ct. 1220 (2021). See also Knight First Amendment Inst. at Columbia Univ. v. Trump, 928 F.3d 226 (2d Cir. 2019) [hereinafter Knight].

[45] Biden, 141 S. Ct. at 1221.

[46] Knight, 928 F.3d at 237.

[47] Id.

[48] Davison v. Randall, 912 F.3d 666 (4th Cir. 2019). 

[49] Campbell v. Reisch, 986 F.3d 822, 824 (8th Cir. 2021).

[50] Cf. Perry, 460 U.S. at 45-49.

[51] 139 S. Ct. 1921 (2019) [hereinafter Halleck].

[52] Denver Area Educ. Telcoms. Consortium v. FCC, 518 U.S. 727, 737 (1996) [hereinafter Denver Area].

[53] Id. at 747.

[54] See generally Id. at 768-772.