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Social Media Companies Have First Amendment Rights, Too

December 5, 2023

The Goldwater Institute today filed a brief in the U.S. Supreme Court urging the justices to uphold the free speech rights of social media companies such as Twitter and Facebook.

The case (called NetChoice) involves laws adopted in Texas and Florida that force these companies to carry messages they don’t want to carry, thus violating not only their freedom of speech but also their private property rights. But some defenders of these laws have pointed to a 1980 Supreme Court decision called PruneYard v. Robbins, in which the court said that shopping mall owners could be forced to allow petition-gatherers on their land—on the theory that these malls had become, in the modern era, the equivalent of a town square.

The PruneYard case was wrong. Shopping malls (which are practically extinct nowadays) were never the equivalent of a town square—they were always privately owned, privately run business entities. And as we explain in our brief, courts have struggled to find a way to implement the PruneYard theory in the decades since, and with little success. That’s because it’s just not in the nature of rights for one person to have a right to violate the rights of another. Yet the PruneYard case imagined that it’s OK for one person to have a “free speech” right that consists of violating the property rights of another person.

Actually, there were two PruneYard decisions. The first was written by the California Supreme Court; it declared that that state’s constitution protects a broader free speech right than the First Amendment does—one that includes a “right” to trespass on another person’s property in order to express oneself. Then, when the federal Supreme Court reviewed the California court’s ruling, it found nothing objectionable about it—and said that this alleged constitutional right to trespass didn’t violate the Fifth Amendment’s guarantee of private property.

But what were the limits on this right to trespass? Neither the California Supreme Court nor the U.S. Supreme Court ever answered that question, and they’ve never answered it in the 40+ years since the rulings came out. The reason is simple: it’s not possible to answer. The PruneYard principle that one person has a “right” to express himself on another person’s property, against the owners’ will, leads to impossible complications and forces judges to decide when the speaker’s “free speech” rights become “unreasonable” compared to the property owner’s rights. And that’s just the kind of judicial legislating courts are normally supposed to avoid. Yet you can’t avoid it if you accept the nonsensical idea that one person has a right to express himself on the property of another person.

To put this in deeper terms: philosophers who have explored the concept of “rights” have explained that rights must be “compossible”—meaning that it must be possible for two people to exercise their rights at the same time, without creating any logical contradiction. But the PruneYard idea violates that rule, and creates incompatible claims of “rights.” No wonder that, in the years since PruneYard, most state courts have rejected the theory entirely—and even the California Supreme Court has repeatedly expressed discomfort with the precedent and tried to narrow it down.

We therefore argue in our brief that the U.S. Supreme Court should refuse to employ the PruneYard theory in this case—and should even overrule PruneYard, if necessary.

That’s not to say social media companies are perfect, or that it’s not a problem when they broadcast one side of an argument and not another. We at the Goldwater Institute have even had our own Facebook messages blocked at times, frustrating our effort to get the word out about individual liberty. But for centuries, Americans have dealt with that problem through the traditional rules of free speech: if you don’t think Twitter or Facebook are doing a good job, you can start your own social media company. And, in fact, there are plenty of options for those who prefer alternatives, including Truth Social, GETTR, Gab, MeWe, YouTube, Substack, Rumble, CloutHub, and Frank Social, as well as SMS marketing, plus good old-fashioned radio, television, and direct mail.

The best solution for the problems created by free speech is more free speech—not government regulation that deprives business owners of their property and speech rights. The Texas and Florida laws are far worse than the disease, and the Supreme Court should declare them unconstitutional.

You can read our brief here.

Timothy Sandefur is the Vice President for Legal Affairs at the Goldwater Institute.



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