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Can a Marsh beat a Swamp? Yes, if the Supreme Court precedent in Marsh v. Alabama is applied by Congress, the court or state legislatures to save free speech on the Internet.
Marsh was the 1946 Supreme Court case which found that First Amendment protections for free speech can be applied to private sector actors in some circumstances. In the case, a company town owned by the Gulf Shipbuilding Corp. sought to bar free speech on its sidewalks, claiming that the First Amendment only proscribed government censorship, not private sector actions.
In a 5-3 decision authored by First Amendment champion Hugo Black, the high court disagreed, finding that when the private sector actor owns and controls the de facto “public square,” then Americans’ constitutional protections still apply. Black wrote, “To act as good citizens they must be informed. In order to enable them to be properly informed their information must be uncensored. … When we balance the constitutional rights of owners of property against those of the people to enjoy freedom of press and religion, as we must here, we remain mindful of the fact that the latter occupy a preferential position.”
Marsh has not been widely applied since then, because its circumstances are so rare. At first, the Supreme Court applied the decision to guarantee the rights of protesters in shopping malls in a 1968 case called Amalgamated Food Employees Union Local 590 et al. v. Logan Valley Plaza. However, the more conservative Berger Court soon scaled this protection back in a 1972 case (Lloyd Corp., Ltd. v. Tanner et al.), essentially because such speech can interfere with the fundamental purpose of the mall — for stores to sell goods — and because there are alternative sites for such speech. Courts have also refused to apply Marsh to allow commercial companies to spam the Internet with their ads. The Supreme Court in the 2019 Halleck case found there is no Marsh-style protections at a public access cable TV channel, and in February 2020 a federal judge ruled that YouTube was free to restrict or demonetize videos from Prager University.
Ultimately, it is all a matter of balance and degree. Providing freedom for political debate is the first and necessary condition for democracy, and the first and necessary role of the state. It is a traditional and exclusive public function for the state to maintain fair and reasoned elections, and therefore to maintain and ensure adequate locations and opportunity for public debate ahead of the election; there can be no fair elections if political debate is stopped. If a private individual truly could silence all other speakers and all debate so that only the private sector tyrant’s own voice could be heard, the government could not and would not let it stand. The closer the underlying facts approach this dystopian reality, the more the Marsh decision must apply.
If there is ever a set of circumstances that warrants another application of the ruling, it is today as Twitter bans all speech from the now-former president of the United States, and as Apple and Amazon shut down Parler, thereby closing the public square used by a wide swath of Americans. The speech being blocked is clearly political speech rather than commercial speech, and so warrants the highest level of constitutional protection. The speech is not in conflict with the central action of the site, as in the shopping mall cases; speech is the purpose for which these sites were built, and preserving freedoms for censored speakers in no way prevents other speakers from having their freedoms as well. The censorship did not block one specific message or release, such as the Pentagon Papers, but rather the right to speak in the future, on any topic. (Even future apologies or calls for reconciliation have been silenced.) The speech precluded is also not blocked in a consistent manner: There was no blocking of speakers who pulled together the crowds that led to violence in many U.S. cities all summer long. Nor has there been blocking of Vladimir Putin, or Iran’s ayatollahs, for example. The sites are not just affecting political debate in a small way, such as demonetizing a YouTube video; they are audaciously showing their power to silence an elected U.S. president forever into the future, and should they choose, to silence an unlimited number of his supporters.
In the context of free speech, the Internet social media sites are uniquely important, with an impact far beyond access to shopping malls. In a 2017 case, Packingham v. North Carolina, the court made clear that the Big Tech social media sites have become THE public square of our time, ruling unanimously that even convicted sex offenders cannot be blocked or censored from Facebook and Twitter.
“A fundamental principle of the First Amendment is that all persons have access to places where they can speak and listen, and then, after reflection, speak and listen once more,” Justice Anthony Kennedy wrote. “While in the past there may have been difficulty in identifying the most important places (in a spatial sense) for the exchange of views, today the answer is clear. It is cyberspace — the ‘vast democratic forums of the Internet’ in general, and the social media in particular.”
Kennedy went on to say, “These websites can provide perhaps the most powerful mechanisms available to a private citizen to make his or her voice heard. They allow a person with an Internet connection to ‘become a town crier with a voice that resonates farther than it could from any soapbox. … [T]o foreclose access to social media altogether is to prevent the user from engaging in legitimate exercise of First Amendment rights.”
If private companies own or manage the public square of our political debate, they must honor the protections for such political debate. The Constitution never desired Jack Dorsey’s sandal or Jeff Bezos’ boat shoe to become the boot on the face of freedom forever. Does the First Amendment really say that child molesters have a free speech right to social media, but the president of the United States does not?
Attacks on conservative speech today can easily become attacks on progressive speech tomorrow, and legislators of both parties should join together in bipartisan unity. Congress should mandate “free speech zones” on Big Tech sites — areas where any political speaker can say what the laws would allow them to say in an actual, physical public park or square, and subject to the same penalties for infractions. If Congress won’t legislate these free speech zones, then the Supreme Court should find the protection already exists pursuant to the Marsh and Packingham precedents.
And if the federal government won’t act, individual states might. In the 1980 case Pruneyard Shopping Center v. Robins, the court found that the free speech protections in the California state constitution were broader than the federal protections and could allow high schoolers to set up a petition table in a California shopping mall against the mall owner’s wishes. If, for example, the state governor and Democrats of California ever sought to regulate Big Tech — and Big Tech retaliated by censoring them from all future social media speech, the state of California would be well within its rights to apply its constitution to prevent such censorship.
This free speech solution is different from seeking to end Section 230 and to give Big Tech sites liability for the messages they carry. Such extra liability would merely incentivize the sites to block more messages than ever. The establishment of “free speech zones,” treating Big Tech media sites like telephone networks for political debate that carry messages for all, is the better and simpler approach.
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