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Trump has a point: Facebook's policing of speech is ominous

Facebook is turning its immense economic power into

Facebook is turning its immense economic power into political power. Credit: AP/Martin Meissner

Donald Trump has sued Facebook, Twitter and YouTube for deplatforming him. In his suits, he mainly claims that those tech platforms were essentially coerced by the federal government to ban speech with which the government disagreed — such as his claims that there was massive fraud in the 2020 presidential election — and thus became in effect government agents subject to the First Amendment.

This theory is a long shot. While in theory such claims could survive, they require powerful evidence of governmental coercion. It's unlikely that Trump can provide enough of that — especially when the supposedly coerced companies are rich and powerful and have their own motives to restrict speech, entirely apart from supposed government pressure.

But behind this weak argument lurks a stronger one: that Congress (and maybe states) should pass new laws that indeed limit viewpoint discrimination by these massively important social media platforms. For an analogy, consider civil rights laws, which protect people against private discrimination, and thus go beyond the 14th Amendment's Equal Protection Clause, which only binds the government. Laws that restrict what content social media companies can ban would represent a step toward recognizing that, when they host people's social media pages, they play a role in our society closer to that of phone companies (which cannot pick and choose what content they carry) than newspapers (which can). They would be treated, to use the legal term of art, like "common carriers."

Such laws, if properly crafted, would probably be constitutional: As Justice Stephen G. Breyer has written, "Requiring someone to host another person's speech is often a perfectly legitimate thing for the Government to do." Breyer wrote this in a dissent, joined by Justices Sonia Sotomayor and Elena Kagan, but the majority didn't disagree. And three important precedents support Breyer's view.

In PruneYard Shopping Center v. Robins (1980), the Supreme Court held that state law could require large shopping malls to host leafleteers and signature gatherers. In Turner Broadcasting v. FCC (1994), the court held that Congress could require cable systems to carry broadcast channels, even if the systems would rather have carried other channels.

And in Rumsfeld v. FAIR (2006), the court held that Congress could require private universities to host military recruiters, even if the universities sharply disagreed with the military's discrimination against gays and lesbians. (The court held that this requirement was constitutional regardless of whether it was attached to government funding.)

Social media platforms could likewise be required to host speech without viewpoint discrimination. Indeed, the case for that is even stronger than for requiring hosting by shopping malls or universities. Facebook is the fifth-richest American corporation, owned by the fifth-richest American. Its Oversight Board acknowledges that Facebook "has become a virtually indispensable medium for political discourse, and especially so in election periods." The Supreme Court has called social media platforms "the modern public square."

And now Facebook and its peers are controlling what Americans (and others) can say in this medium about American politics. Besides banning Trump, for instance, Facebook has banned supposed "hate speech" against particular people or groups. Unsurprisingly, this has now morphed to include criticisms of "concepts, institutions, ideas, practices, or beliefs associated with protected characteristics" when Facebook thinks such criticisms risk "harm" or "discrimination." Same for whatever Facebook chooses to label "misinformation": Until late May, Facebook banned arguments that COVID-19 had been bioengineered in a Chinese lab, though the World Health Organization and other experts now take that possibility seriously.

Facebook is thus turning its immense economic power into political power. Something similar is happening in some measure with Twitter and YouTube. This matters, because in our closely divided country, policies that sway even a small percentage of voters can alter our political future.

Perhaps such private power should be praised. The government can't ban "hate speech" or "fake news," but perhaps it's good that private companies can fill that gap. Perhaps we should trust Mark Zuckerberg to be public-spirited and fair-minded enough to do the job. Or perhaps we should at least resign ourselves to such power, out of respect for platforms' private property rights.

But perhaps we should instead think that such platform power has become a danger to American democracy. Recall Citizens United v. FEC (2010), which held that the First Amendment protects corporations' and unions' right to spend money to speak about political candidates. The four liberal dissenters, and many commentators, sharply criticized the majority: Such corporate speech, the argument went, could unfairly distort public debate, and marginalize the speech of ordinary citizens.

I didn't agree with the dissenters on that point, because I think corporations and unions have the First Amendment right to express their own views. But I don't think massive social media platforms have a First Amendment right to block other people's views, especially when they are dominant (or even a near monopoly) in their own media niches.

This brings us to the "common carrier" argument. Newspapers (which are not common carriers) provide original material to their readers; and when they publish others' speech, they only publish a tiny fraction of what's available. That's their function: They help us deal with information overload, by carefully selecting those materials they find valuable. And they have a corresponding First Amendment right to make such choices, without the government forcing them to be evenhanded.

On the other hand, phone companies can't choose which speech to carry. Say a phone company sees a public webpage announcing that the Ku Klux Klan or antifa is using its phone lines to recruit new members or spread ideas. The company can't say, "We refuse to host your evil, dangerous speech." It can't leverage its private property rights into control over public discourse. UPS and FedEx are likewise common carriers, and can't refuse to deliver books for Nazi or communist publishers. The debate we should be having is whether Facebook is more like a newspaper or a phone company. Given how people use it, the latter comparison appears to make more sense.

Platforms can't be stopped from expressing their own views about speech (such as by posting fact-checks). Nor can they be required to affirmatively recommend speech that they'd rather not recommend. But they can be stopped from ejecting users based on those users' views. It may well be possible for Congress to ban viewpoint discrimination, but allow some content discrimination, for instance letting platforms exclude spam or pornography.

I'm not sure such laws would be wise. Government regulation often makes problems worse. Perhaps other solutions, such as trying to promote more competition in the social media market, should be tried instead.

But massive corporations controlling the modern public square is a real and important problem. We should think hard about what, if anything, should be done about it. And while the corporations' private property rights should count for a lot here, they might not be dispositive — just as phone companies' private property rights don't let them block certain ideas from their phone lines.

Eugene Volokh is the Gary T. Schwartz professor of law at the UCLA Law School.