Free Speech and Private Power: No Categorical Right to Control Property

[I am serializing my short Harvard Law Review Forum essay titled “Free Speech and Private Power”, responding to the Harvard Law Review’s publication of Evelyn Douek & Genevieve Lakier’s excellent new article, Lochner.com? I actually agree with much of what Douek & Lakier say, but offer a somewhat different perspective on the matter, mostly asking what the Court’s recent cases mean going forward, rather than trying to critique them.]

[1.] In Moody.—While Moody protected some platform rights, it rejected the view that a property owner has a categorical First Amendment right to make sure that its property is not used to convey messages of which it disapproves. Such an argument was made, based on Wooley v. Maynard, and it could have derived some support from cases such as Janus v. AFSCME, Council 31, which held that the government may not require people to contribute money for ideological uses that they reject.

But the Court made clear that “ordering a party to provide a forum for someone else’s views implicates the First Amendment” “if, though only if, the regulated party is engaged in its own expressive activity, which the mandated access would alter or disrupt.” And the Court acknowledged that PruneYard Shopping Center v. Robins and Rumsfeld v. FAIR upheld compulsions that an entity host speech on its property, “because in those cases the compelled access did not affect the complaining party’s own expression.”

In the Moody oral argument, Chief Justice Roberts suggested that Rumsfeld might have been limited to conditions on government funding, though his opinion in Rumsfeld expressly disclaimed any such limitation. But the Moody opinion treated Rumsfeld as good law with regard to compelled access rules and declined an amicus’s call to over-rule PruneYard.

The Court thus echoed what Justice Breyer wrote in a 2020 dissent:

Requiring someone to host another person’s speech is often a perfectly legitimate thing for the Government to do. See, e.g., FAIR (holding that the Government may require law schools to host speech from military recruiters); PruneYard (holding that the Government may require the owner of a private shopping mall to host speech from politically minded pamphleteers).

And this too makes sense, if one looks by analogy at the many property owners that are indeed disabled from excluding certain third-party views. Closest to platforms, phone companies—both landline monopolies and the famously competitive cellular companies—are “common carriers,” which can’t cancel, say, the Klan’s or the Communists’ phone lines, even if they don’t want their property used by such groups. One historical reason for this common carrier rule, as Lakier has documented, was telegraph companies’ refusal to transmit certain kinds of messages, a refusal that Congress decided to forbid.

The same is true in other contexts. PruneYard illustrated the rules in some states that require large shopping malls to allow public access. Some jurisdictions limit the power of places of public accommodation—which in some places include a wide variety of services—to reject or eject customers based on their political affiliation, beliefs, or speech. And these rules aren’t limited to situations where there is “corporate consolidation that had left control … in a few hands”; though Douek and Lakier rightly point out that such consolidation creates special risks to public debate, various rights of access apply even in the absence of such consolidation.

Likewise, in New Jersey and Pennsylvania, private universities can’t exclude certain speakers from outdoor spaces they have generally opened up to public access. California generally limits private colleges’ and private high schools’ ability to restrict speech by students, including on-campus speech.

Employers may also have to allow some employee speech on their property. Wacko Hurley had the right to exclude pro-gay rights floats from the parade he ran, because requiring him to include the floats would affect the content of what the Court viewed as his own speech. But typical California employers, for instance, wouldn’t be allowed to fire employees because of their pro-gay rights (or anti-gay rights) speech, likely including on-the-job speech, at least in contexts where other employee speech is allowed. The speech may be on the employer’s property (like the speech in PruneYard was on the mall’s property), but requiring employers to allow such speech usually wouldn’t disrupt the employer’s own speech.

And indeed, if we think governmental restrictions on speech are dangerous because they risk undermining democratic self-government, the marketplace of ideas, the search for truth, self-expression, or autonomy, we should likewise be concerned about private restrictions. That is especially so when the restrictions are backed by threat of real economic penalty, as with threat of firing or expulsion from college. Restrictions on access to the channels of communications—telegraph and telephone, email, or social media—can also substantially restrict public debate.

Some negative theories of the First Amendment, under which “justifications for the freedom of speech focus not on any special value of free speech, but on the special dangers presented by government regulation of that right,” might not apply to private speech restrictions. The Moody majority opinion may take that view when it comes to restrictions on the curated feeds:

On the spectrum of dangers to free expression, there are few greater than allowing the government to change the speech of private actors in order to achieve its own conception of speech nirvana. That is why we have said in so many contexts that the government may not “restrict the speech of some elements of our society in order to enhance the relative voice of others.”

But even under such negative theories, one might conclude that restrictions imposed by certain kinds of private entities likewise present their own “”special dangers.” And one might conclude that the First Amendment allows restrictions that do not aim “to stop private actors from speaking as they wish and preferring some views over others,” but aim only to stop private actors from restricting others’ speech, at least when “the mandated access” wouldn’t materially “alter or disrupt” the private actor’s “own expressive activity.”

Of course, the U.S. Constitution by its terms protects only against government restrictions. But legislatures have considerable authority to forbid private restrictions—much as legislatures have done in the equal protection context, for instance, by implementing statutory antidiscrimination rules that in some measure adapt Equal Protection Clause principles to private entities.

[2.] Political History.—As Douek and Lakier have pointed out, these concerns about private power have historically been associated with the political and judicial Left, though today they are more commonly heard on the political and judicial Right.

Human nature being what it is, this likely partly reflects whose ox is being gored. When corporate power was associated with conservatives, the main concern about it stemmed from liberals and progressives. But now that many important employers and media platforms have embraced some causes of the Left, conservatives have unaccustomedly shifted away from their earlier “laissez-faire” position while “progressives, traditional skeptics of corporate power,” have unaccustomedly embraced it. And though those progressives may well view the power here “as a necessary means of protecting the public against lies and deception, and vindicating the rights of women and minorities online,” human nature suggests that people more commonly see “lies and deception” in statements that oppose their ideological worldview than in ones that fit it. (Consider, for example, the calls—largely endorsed on the Left—to suppress the story about Hunter Biden’s laptop as being supposed Russian disinformation, though the laptop ultimately proved authentic. Or consider the suppression of claims that COVID-19 may have stemmed from a Chinese lab leak, claims that are now generally believed to be at least plausible.)

But perhaps part of the reason for the political shift is that both sides have learned valuable lessons over time. “[A] conservative is a liberal who has been mugged”; “[a] liberal is a conservative who has been arrested.” The experience of seeing conservative speech suppressed may have opened conservatives’ eyes to the perils that liberals had seen all along. The experience of seeing big businesses protecting values that liberals found important, and that the government was unable to protect, may have opened liberals’ eyes to the value of private ordering. And of course there have long been both liberals skeptical of governmental attempts to restrict private power over speech and conservatives open to some such restrictions.

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