Spring 2022 Symposium

Introduction

In July 2017, the case of Knight First Amendment Institute v. Trump was filed. The litigation attempted to establish that censorship involving political leaders by private social media platforms like Twitter restricted First Amendment and free speech rights. The case is grounded in the idea that public officials (in this case, Donald Trump) could block constituents from seeing their content, effectively excluding them from a publicly accessible political sphere and violating their constitutional rights. The case was decided in favor of the plaintiffs, who filed a second case on similar grounds in July 2020. There have been associated controversies about politicians allegedly having their own First Amendment rights violated by media platforms through the deactivation of their accounts as well[1]. Regardless of the outcome of Knight First Amendment Institute v. Trump, this case and others like it call into question how First Amendment rights apply to political activity and censorship on social media platforms. Ultimately, the controversy surrounds whether privately-owned and regulated social media platforms have become public due to their necessity in public life or due to their use by public elected officials. Neither of these aspects of media provide a solid foundation for subjecting private platforms to public regulation, nor do they give grounds for requiring private media platforms to uphold constitutional rights.

First Amendment Rights and Private Platforms

First Amendment liberties apply only to the realm of government, guaranteeing that citizens can’t be punished by the government for speaking out against it[2]. In this narrow context, the First Amendment doesn’t restrict censorship by privately owned and regulated social media platforms. Private social media companies are not federal entities and are therefore free to implement terms and conditions to which all users must agree. If users violate these terms in their activity, media platforms are well within their rights to censor or ban them. It is reasonable to believe that social media executes many important functions in our modern society, but guaranteeing access to private platforms as a constitutional right is an overextension of what rights can be reasonably extrapolated from the text of the Constitution. This is especially true considering the lack of foundational evidence that social media should be considered public or exempt from the rule of the State Action Doctrine.       

When determining whether a private entity can be subject to public regulation, American jurisprudence turns to the State Action Doctrine—one of the most contradictory and unclear areas of constitutional law[3]. The ambiguity associated with the doctrine makes it difficult to uniformly apply it to the intersection between social media and constitutional rights. The doctrine, in its most basic form, establishes the separation between public government and private entities[4]. An important aspect of the doctrine’s application as it applies to constitutional rights is the idea that government is required to uphold constitutional rights while private entities are not—accordingly, only government entities are able to violate constitutional rights[5].

Intersection of Social Media and the State Action Doctrine

The majority of arguments posed to accuse social media companies of violating first amendment rights are based on the idea that social media platforms have become inherently public for two reasons—their societal importance and their use by public elected officials[6]. The freedoms of speech guaranteed to citizens by the First Amendment to the U.S. Constitution have created a unique and complex constitutional problem as the societal importance of social media has grown. In the same year that lawyers filed Knight First Amendment Institute v. Trump, a broad interpretation of the First Amendment occurred. Packingham v. North Carolina[7], a case regarding a sex offender’s use of Facebook, deemed that one case of social media censorship had gone too far. While the ruling’s decision applied only to a niche area of legislation, a crucial aspect of the majority opinion brief authored by Justice Anthony M. Kennedy suggested a significant development in social media’s role in public life. The decision stated that social media platforms are important enough to modern communication that being barred from them is a violation of constitutional rights. Post-Packingham, it has been unclear whether the necessary social function of private media platforms in public life made these platforms inherently public. However, this necessity doesn’t constitute publicity of social media platforms according to the exceptions to the State Action Doctrine.

Exceptions to the State Action Doctrine

There are two exceptions to the State Action Doctrine that can allow a private entity to be held to public standards of accountability, the first of which is the Public Function Exception. The exception states that a private entity’s actions can be deemed public and can therefore be required to uphold constitutional rights, if the actions performed by said entity are actions traditionally performed by the public state. One of the landmark cases (and a crucial example to understanding the application of the doctrine) that established the public function exception is Marsh v. Alabama[8]. In this case, a company-owned town in Alabama criminally charged a woman for distributing religious literature in public. The plaintiff, Marsh, filed a lawsuit alleging her First Amendment rights were violated by the town's body of governance. The case was decided in favor of Marsh; although the town was privately owned, it performed all of the responsibilities of a public municipality[9] and therefore was required to uphold its citizens constitutional rights in the same way a public municipality would. In the case of social media, the only way for private media companies to be subject to upholding constitutional rights would be if they performed functions deemed as public.

Social media does not qualify for this exception—it simply doesn’t perform the basic functions of government detailed in the Constitution[10]. The only possible constitutional basis for government interference in social media is “to provide for the common welfare”, due to its importance in public life. However, there are grounds to believe that it would not be in the interest of the common welfare to entrust the government to enforce truth in the media. A recent Politico opinion piece[11] reminds us that “This is the government... that fought a secret war in Nicaragua, that lied about a clandestine love affair in the White House, that used faulty intelligence to force a war in the Middle East.” In addition to a poor track record for truth-telling, the ever-growing politicization of public offices suggests that allowing public officials to set limitations on private media use could be used to skew information in favor of their political affiliations and personal interests. Social importance is not enough to guarantee public use and constitutional rights to a service, and entrusting the ever-politicized offices of government to enforce political truth and curb misinformation would only further the controversy and confusion over what is true and what is not.

The second exception to the State Action Doctrine is the Entanglement/Entwinement exception. The Entwinement Exception is sometimes considered to be its own exception but is more generally accepted as a subset of the Entanglement Exception. Rather than requiring that a public entity assume public responsibilities, this rule requires direct government use of private entities (or significant coaction with said entities) in order to constitute a private actor’s actions being made public. If the government contracts its inherently public responsibilities to private actors, such as the conduction of an election or the enforcement of laws, these private actors are therefore responsible for upholding constitutional rights at the same level of accountability as their public contractors are. Knight First Amendment Institute v. Trump alleges that platforms like Twitter, when used by public officials to conduct political business, become a public space subject to First Amendment rights[12]. This implies that public officials using social media are effectively “contracting” their responsibilities to a private platform. Certainly, politicians use social media to communicate government business to the public. But, they also use the media to criticize opponents and humanize themselves to constituents. All mentioned behaviors are in and of themselves political, but they don’t uniformly have impacts on the mechanisms of governance. Announcing policy decisions and cabinet appointments on platforms like Twitter don’t effectively make them law. A political action does not necessarily equal a public action, which means that social media should be allowed to operate under private regulation with its elected users.

Due to the case-by-case basis of the application of the State Action Doctrine, courts often struggle to find precedent to abide by in cases that lie in gray areas of the law. Wickersham v. City of Columbia[13], for example, found a private entity guilty of violating constitutional rights due to the significant support and facilitation its events received from the government. A private company, Memorial Day Weekend Salute to Veterans Corporation (hereinafter referred to as “Veteran’s Corp.”) hosted a private event in 2005 at an airport owned and operated by the City of Columbia, Missouri. The event required the transfer of authority over the airport’s tarmac from the City of Columbia to Veteran’s Corp for the purpose of the event, as well as the use of publicly owned resources, such as federal airplanes and the city’s police force. Because of this involvement of public resources, the city required that the event be open to the public. Veteran’s Corp. was given the authority to give orders to local police staffing the event, which included an order to stifle (and in some cases, arrest) any protests or petitioners in attendance. The plaintiffs in this case, Bill Wickersham and Maureen Doyle, sued the city for violating their constitutional rights by limiting free speech at the event. This case was decided in favor of Wickersham due to the significant amount of entwinement between the government and the Veteran’s Corp. in the conduction of this event. The event hosted by Veteran’s Corp was not simply allowed by the government, but supported by it. It could not have happened without the use of federal resources (such as aircrafts), which made the event public, and therefore made Veteran’s Corp. responsible for upholding first amendment rights. In addition to this, since the Veteran’s Corp. was allowed to govern the public police department, their role as a state-like actor made the event inherently public.

Social media is not entwined with the government to a great enough degree to invoke this exception to the State Action Doctrine, nor does it fall in as much of a gray area of the law as Wickersham v. City of Columbia. Most funding for media platforms comes from investors, the sale of advertisements, and the sale of user’s data[14]. The means for running private platforms such as Twitter and Facebook are not provided from funds or benefits from the government. Because of this, media companies aren’t entwined with federal entities, nor are they reliant on federal support. Government allows media to exist, which as established in the deliberation of Wickersham v. City of Columbia, is not a sufficient enough overlap of private and public entities to determine that social media is a public space.

Recent Developments

The most recent developments in jurisprudence regarding the intersection between social media and first amendment rights have been regulations at the federal level. The Biden administration is currently attempting to intervene in the private regulation of disinformation. On April 26th, 2022, the administration announced the formation of a Disinformation Governance Board, an effort to combat disinformation in conjunction with the Department of Homeland Security. The effort has only been described in vague terms—even press secretary Jen Psaki failed to answer for the intentions of the task force in a recent press briefing[15]. It is unclear whether this task force will simply observe and report misinformation or whether it intends to directly regulate what is posted on private media platforms, the latter of which is a gross overextension of federal power. Despite the fact that the regulation of social media platforms is veering towards public control, its private nature overrules its use by public officials and its necessary function in social atmospheres when determining whether media is a public space. Although some citizens may not be able to access the social media pages of their elected officials if blocked, they will not suffer a violation of constitutional rights. Conversely, public officials can be rightfully held to the same standards as other users of private media platforms. Public officials on media sites are not conducting public action in a way that directly determines governmental functions. Social media companies should continue to enforce their rules uniformly and privately in an effort to curb violence and misinformation under their own jurisdiction.

References

[1] See “Fact Check, Did Twitter Violate President Trump’s First Amendment Rights?” Lauren Giella, Newsweek, for documentation of the mixed public reactions regarding social media censorship and First Amendment rights.

[2] See “The Limits of Free Speech in Social Media”, Brett M. Pinkus, UNT Dallas College of Law.

[3] See the many cases and complexities associated with the doctrine’s application and concerns that it is used to incorporate personal opinions in “State Action Doctrine - Constitution Annotated | Congress.gov.” Constitution Annotated: Analysis and Interpretation of the U.S. Constitution.

[4] “Know Your Constitution (8): What Is State Action?” Sheldon Nahmod, Chicago-Kent Faculty Blog.

[5] “State Action Requirement.” Legal Information Institute, Cornell Law.

[6] Knight First Amendment Institute v, Trump alleges the latter, while cases like Packingham v. North Carolina allege the former.

[7] See “Packingham v. North Carolina | Oyez” for the majority decision establishing the social importance of social media use. This can be spun to make private social media use become subject to public regulation, and subject to constitutional rights.

[8]See “Marsh v. Alabama | Oyez”.

[9]See “On Doctrinal Confusion: The Case of the State Action Doctrine.” Schmidt, Christopher W., BYU Law Digital Commons.

[10] See Article 1, section 8 of the transcribed Constitution for the functions of Congress.

[11] “Opinion | Biden’s Hopeless Disinformation Police”, Jack Shafer, POLITICO.

[12] See “Official Censorship Should Have No Place in the Digital Public Square”, Jameel Jaffer & Katie Fallow, Knight First Amendment Institute at Columbia University.

[13]See “Wickersham v. City of Columbia, Mo., 371 F. Supp. 2d 1061”, Laughrey, District Judge, CaseText.

[14] See “How Facebook (Meta), Twitter, Social Media Make Money from You”,McFarlane, Greg, Investopedia Stock Analysis.

[15] See “Press Briefing by Press Secretary Jen Psaki, April 28th, 2022”, Whitehouse.gov.