Marsh v Alabama

Will Facebook, YouTube, Twitter and our other Internet overlords get away with selectively banning, shadow-banning, restricting and deleting, conservative, republican and Trumpian content on social media platforms, silencing the White House press secretary, Trump’s political campaign, and major newspapers?

The answer, at the moment, is yes, they will get away with it. They will do so in the future, and the noose will tighten, demands for conformity in speech and thought becoming ever more arbitrary and intrusive, until and unless Congress changes the law.

I am not speaking of amending Section 230 to render the tech giants open to lawsuit for libel: that is insufficient. A change as momentous as the Civil Rights Act holding public accommodations to the standards of the Fourteenth Amendment, even when those accommodations are privately owned, is needed.

At the moment, the courts have held that there is no right to free speech on a platform hosted by a private megacorporation.

Marsh v. Alabama, 326 U.S. 501 (1946) was a Supreme Court case holding that the First Amendment protected the distribution of religious materials on a town’s sidewalk, notwithstanding the fact that the sidewalk where the distribution was taking place was part of a privately owned company town.

The holding, in effect, says that 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.

Now, later cases restricted the holding in Marsh to cases where a private entity is performing a function that is “both traditionally and exclusively governmental.” Lee v. Katz, 276 F.3d 550, 555 (9th Cir. 2002).

The seminal case in the area, Prager University v. GOOGLE LLC, 951 F. 3d 991 – Court of Appeals, 9th Circuit 2020  held that merely because YouTube was ubiquitous, this was insufficient to make it a government actor subject to the First Amendment.

Likewise, in Manhattan Cmty. Access Corp. v. Halleck, 139 S.Ct. 1921, 1930 (2019) the U.S. Supreme Court held, “merely hosting speech by others is not a traditional, exclusive public function and does not alone transform private entities into state actors subject to First Amendment constraints.”

Like the notorious Dredd Scott decision, this is good law, based on a correct and literal reading of the US Constitution, but it leads to a situation where a private company, in effect, can manipulate the outcome of a US Presidential election.

The tech giants can and do demand users adopt specific doctrines, attitudes, political opinions, and vocabulary words, on pain of loss of service, which, for anyone depending on ad revenue, means a loss of career.

This is not your customers ceasing to patronize you, this is as if the tollroad leading to and from your business were privately owned, and the road owner were allowed to shut down your livelihood at his discretion, for any reason or no reason, without so much a polite note to so inform you.

This degree of censorship has never been seen in human history: the post office does not steam open your envelopes, nor do phone operators monitor your every phone call for your political opinions.

Whether or not the actions of Facebook and Twitter in the current case violates some other law or statute is an open question. Anti-trust law is notoriously open to interpretation, and may be violated here, as well as campaign finance law.

In this particular case, since the social media platforms involved are aiding an abetting acts of international bribery and racketeering by the Biden crime family,  the Racketeer Influenced and Corrupt Organizations Act may apply.