Final draft research paper

Running Head: FORUM DOCTRINE AND SOCIAL MEDIA

Forum Doctrine and Social Media

An Analysis of Online Free Speech Protections

By Phil Ruhe

[email protected]

This research paper was written for a Communication & Policy course in summer 2018.

The author is a political science undergraduate major in the College of Arts and Sciences,

University of Nebraska at Omaha.

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Forum Doctrine and Social Media

An Analysis of Online Free Speech Protections

In the last ten years, the number of Americans using social media has jumped from 21 percent to

69 percent. For many of these Americans, checking social media is a daily habit (Pew Research

Center, 2018). Rebecca MacKinnon notes that “the Internet holds immense potential to help

citizens improve democratic governance” and offers a global platform for public discourse on

matters of sovereignty and consent.” (2012, Chapter 1) Does the First Amendment in turn

protect internet and social media speech because of their status as “modern public squares” and

“vast democratic forums?” (Packingham v. North Carolina 2017, p. 1737; Reno v. ACLU, 1997,

p. 868). One argument for this thesis is a recent court decision that President Trump’s

viewpoint-based blocking of Twitter users is unconstitutional, declaring immediate interactions

with @realDonaldTrump a public forum (Herrman & Savage, 2018). On the other hand,

companies retain extensive control over their platforms. YouTube demonetizes channels

(Farokhmanesh, 2018), Facebook is accused of content-based censorship (Robertson, 2018), and

social media companies increasingly act as arbiters of speech (Roose & Mozur, 2018). Most

importantly, “the First Amendment with its free speech guarantee only applies to the

government. So any private sector entity…is not constrained by constitutional free speech

guarantees” (Sanders, 2018, quoting Nadine Strossen). This research paper will seek to explore

to what extent the public forum doctrine applies to the internet in general, social media in

particular, and how the First Amendment is protected online.

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A Brief History of First Amendment Interpretation

The First Amendment to the U.S. Constitution is arguably the most litigated constitutional issue

in the U.S. legal system. While the First Amendment is not supreme to other constitutional

protections, it holds a more revered place in the nation’s psyche. This is partially because the

First Amendment is nearly synonymous with the American values of individualism and

representative democracy. The First Amendment guarantees five (5) protections: religion,

speech, press, assembly, and petition (Olson, 2018, p. 25). The English natural right philosopher

John Locke and legal scholar William Blackstone heavily influenced the Founding Fathers

(Olson, 2018). Throughout the 19th Century, the nation wrestled with the extent of federal

power. In Gitlow v. New York (1925), the Court expanded the application of First Amendment

protections to states through the equal protection clause of the Fourteenth Amendment (Olson,

2018, p. 29). The two amendments “actively intersect with one another” and “broaden the scope

and potential power” of the First Amendment (Zick, 2017, pp. 817-818).

In the 20th Century, the U.S. Supreme Court also established a number of tests to

adjudicate the application of First Amendment rights and limitations. First, the Court applied the

bad tendency test in Patterson v. Colorado (1907) to determine constitutional limitations of First

Amendment protections (205 U.S. 454). Second, the Court added the clear and present danger

test in Schenck v. United States (1919) (Olson, 2018, p. 28). Third, the Court evolved the clear

and present danger test in Brandenburg v. Ohio (1969) to limit First Amendment restrictions to

“imminent danger of incitement of illegal activity” based on the speaker and likelihood of action

(Olson, 2018, pp. 28-29). Fourth, the Court clarified in Spence v. Washington (1974) that

expressive conduct “intent[ed] to express a message” and for which there is a “likelihood” to be

“understood by a witness” is considered speech (Hopkins, 2018, p. 38). Fifth, in Texas v.

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Johnson (1989) and O’Brien v. United States (1967), the Court further defined that content-based

restrictions of expression must pass the strict scrutiny test and that content-neutral restrictions

must pass the intermediate scrutiny test, also called the O’Brien test (Hopkins, 2018, pp. 39-41).

Sixth, the Court, in Chaplinsky v. New Hampshire (1942) and Terminiello v. Chicago (1949),

denied First Amendment protections to so-called fighting words that “tend to incite an immediate

breach of the peace” and are “aimed directly at an individual.” (Hopkins, 2018, p. 43; citing from

Chaplinsky v. New Hampshire, 1942). However, the highest level of protected expression is

reserved to political speech that is “directly related to public debate” (Olson, 2018, p. 31).

Different First Amendment protections exist based on where the expression occurs.

Perry Education Association v. Perry Local Educators’ Association (1983) stated that there are

three (3) types of fora: 1) traditional public fora (e.g. streets and parks); 2) limited public fora

(e.g. public meetings); and 3) nonpublic fora (e.g. public employee’s mailbox) (460 U.S. 37, 45-

50; Lipschultz, 2018, p. 241). Speakers in public fora receive the strongest First Amendment

protections because any content-based restrictions must pass the strict scrutiny test. Speakers in

limited public fora receive less protections, however restrictions must still pass the intermediate

scrutiny test (460 U.S. 37, 55; Kozlowski & Goodman, 2018, pp. 125-126; Lipschultz, 2018, p.

243). For such protections to be affected, “a speaker must seek access to public property or to

private property devoted to public use” (Cornelius v. NAACP Legal Defense & Education Fund,

1985, p. 801).

The advent of the Internet presented additional questions for First Amendment

interpretation: “should the Internet be regulated like broadcasting, or…enjoy the same First

Amendment freedoms as print?” (Olson, 2018, p. 32). In Reno v. ACLU (1997), the Court

clarified that the factors necessitating broadcast regulation “are not present in cyberspace” (p.

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868). Consequently, the Internet “has been viewed as similar to print media with respect to the

First Amendment” (Lipschultz, 2018, p. 239). The Court has upheld the requirement that laws

governing Internet speech must be narrowly tailored and show compelling government interest in

subsequent cases (Lipschultz, 2018, p. 239). In United States v. American Library Association

(2003), the Court revisited the forum doctrine with respect to public library internet access. The

Court argued that the provision of internet service in a public library cannot be considered a

public forum or limited public forum, because “the doctrines surrounding traditional public

forums may not be extended to situations where such history is lacking” (p. 206).

Statute

Starting with the Telecommunications Act of 1996, Congress enacted a number of laws curbing

online speech. The laws aimed at curbing children’s access to and the overall proliferation of

indecent and obscene online material. These include the Child Online Protection Act (COPA) of

1998; Child Pornography Prevention Act (CPPA) of 1996; and the Children’s Internet

Protection Act (CIPA) of 2000. All acts but CIPA were found to be unconstitutional by the

Supreme Court (Lipschultz, 2018, pp. 238-245). In United States v. American Library

Association (2003), the Court specifically rejected claims of libraries constituting public forums.

On April 11, 2018, President Trump signed into law the Allow States and Victims to

Fight Online Sex Trafficking Act of 2017. The act seeks to punish acts to “promote or facilitate

the prostitution of another person” using “interactive computer services” (Section 3). The

authors clarified that section 230 of the Telecommunications Act of 1996 was “never intended to

provide legal protection to websites that unlawfully promote and facilitate prostitution and

websites that facilitate traffickers in advertising the sale of unlawful sex acts with sex trafficking

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victims” (115 P.L. 164). The Act thereby places a content-based restriction on section 230’s

liability exemption.

The Telecommunications Act of 1996 authorizes the Federal Communications

Commission (FCC) to regulate interstate communications, specifically broadband (i.e. Internet)

communications. Section 223 of the Telecommunications Act of 1996 prohibits the “making,

creation, solicitation” of “obscene or child pornography,” including the knowing transmission of

such material to recipients under 18 years of age (47 USCS § 223). At the same time, the Act

carved out a liability exemption called the “Good Samaritan” provision that treats “no provider

or user of an interactive computer service…as the publisher or speaker of any information

provided by another information content provider” (47 USCS § 230). Providers are given

latitude to “voluntarily…restrict access to or availability of material that the provider or user

considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise

objectionable, whether or not such material is constitutionally protected” (47 USCS § 230).

On the other hand, employers are given less authority to regulate the online speech of

their employees. The National Labor Relations Board (NLRB) decided in 2014 that employee

social media rules at Kroger’s grocery stores were “unduly burdensome, well beyond any

legitimate interest of the employer, and will have a tendency to chill legitimate…speech.”

(Kroger Co. of Michigan v. Granger, 2014, p. 11). The NLRB further clarified that “online

speech can be no more limiting than that of traditional written and oral speech” (p. 11).

The General Statutes of North Carolina (2018) declare that “it is unlawful for a sex

offender…to access a commercial social networking Web site where the sex offender knows that

the site permits minor children to become members or to create or maintain personal Web pages“

(§ 14-202.5). The statutes further assert that companies that do not pre-screen users or otherwise

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make “reasonable efforts to prevent a sex offender…from accessing its Web site” may be civilly

liable (§ 14-202.5A). The following section outlines the U.S. Supreme Court’s approach to this

statute in Packingham v. North Carolina (2017).

Recent Case

In Packingham v. North Carolina (2017), the Supreme Court reviewed a North Carolina law

barring sex offenders from accessing social networks to which minors have access. The Court’s

argument referenced Ashcroft v. Free Speech Coalition (2002) and Reno v. ACLU (1997). The

Court stated that the law did not pass the intermediate scrutiny test because it was not narrowly

tailored. The North Carolina law “enacts a prohibition unprecedented in the scope of the First

Amendment” by using “one broad stroke” that does not account for other, legitimate uses of

social media and thus “prevent[s] the user from engaging in the legitimate exercise of First

Amendment rights.” North Carolina “has not…met its burden to show that this sweeping law is

necessary or legitimate to serve” the purpose of “keeping convicted sex offenders away from

vulnerable children” (p. 1737). The Court stressed the importance of social network

communication in society, calling it a “modern public square” similar to the “quintessential

forum” of a park or street (p. 1733). Consequently, the Court urged “extreme caution” in

providing only “scant protection for access [to social networks]” (p. 1737).

In Knight First Amendment Institute at Columbia University v. Trump (2018), the United

States District Court for the Southern District of New York reviewed the blocking of users from

interacting with President Donald Trump’s Twitter account. The Court adjudicated that such

practice violated the First Amendment rights of the blocked users. First, the Court established

that the @realDonaldTrump Twitter account was used to “communicate and interact with the

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public about his administration.” (2018 U.S. Dist. LEXIS 87432, 11) Second, the Court clarified

that such blocking prohibited the plaintiffs from 1) viewing and replying to the President’s

tweets, and 2) fully engaging in the resulting online debate (2018 U.S. Dist. LEXIS 87432, 11-

16). Third, the Court held that the plaintiff’s speech was protected under the First Amendment

and that the interactive space of President Trump’s Twitter account met the definition of a public

forum. A public forum must be “owned or controlled by the government,” can be “absent legal

ownership” by the government, but must be “public property or…private property dedicated to

public use” (pp. 38-43, citing from Perry Education Association v. Perry Educators’

Association, 1983). Whereas Twitter is a private business, the government controls the particular

forum on the social network to which the plaintiffs sought access – the ability to directly respond

to the President’s tweets in an interactive space (2018 U.S. Dist. LEXIS 87432, 44-57). The

Court concluded that “the blocking of the individual plaintiffs as a result of the political views

they have expressed is impermissible under the First Amendment” in a designated public forum

(2018 U.S. Dist. LEXIS 87432, 63-70).

Review Analysis

Jackson (2014) explores the limits of First Amendment protections on social networks due to the

state action doctrine, associated dangers to expression, the widespread use of social networks in

public discourse, and potential solutions to protect freedom of expression on these platforms.

Social networks – Facebook in particular – aid “pre-existing, so called real-world social

relationships,” that extend public dialogue and other activities to the digital realm (Jackson,

2014, p. 123). Jackson (2014) asserts that as private, for-profit entities, social networks face

pressures to censor speech on their platforms. This may include cooperation with “repressive

and authoritarian regimes,” accommodation of cultural norms, broad legal compliance (e.g.

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national security and copyright), and controversial speech (e.g. political, religious, and criticism

of the company) (pp. 127-131). Jackson (2014) outlines three (3) problems with such censorship

on social networks: 1) lack of online and physical alternatives for free expression; 2) ability to

isolate and suppress particular expressions; and 3) extension of online censorship to real-world

censorship (pp. 132-233). Government-imposed restrictions to free speech on social network

would be subject to the Supreme Court’s strict scrutiny test (Hopkins, 2018, p. 40). Jackson

(2014) argues that, given the importance of social networks, free speech restrictions imposed by

social networks themselves should be considered “state action subject to First Amendment

scrutiny” (p. 134).

Jackson (2014) notes that the state (action) doctrine is understood to exclude private

conduct with exceptions created for public function and entwinement (pp. 139-142). The public

function exception introduced in Marsh v. Alabama (1946) curbs the government-like exercise of

power by private entities. Jackson (2014) argues that social networks are a large-scale public

space analogous to town squares regulated by government (public forum doctrine) and that

“social network websites may be privately owned, but they are sufficiently public…in nature to

be treated as state actors” and should therefore “be limited in some of the ways in which

governments are limited” (pp. 144-148). The entwinement exception introduced in Lugar v.

Edmonson Oil Co. (1982) curbs state-sanctioned private party conduct. Jackson acknowledges

that there is a more tenuous applicability of the entwinement doctrine with respect to social

networks but points to national security-related censorship and the protection of children from

sexual predators. However, Jackson (2014) offers several reasons why courts may be unwilling

to grant these exceptions and apply the state (action) doctrine to social networks: 1) preservation

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of property rights; 2) the town square metaphor is mostly antiquated; and 3) access to

alternatives (p. 154).

Jackson (2014) in turn offers several alternatives to judicial action: 1) state constitutional

law; 2) complementary state and federal legislation; 3) and federal media access regulations by

the FCC (pp. 157-165). Neither alternative is particularly likely in Jackson’s interpretation.

Jackson (2014) concludes that social networks are both “open and tolerant venues for

expression” and “constitution-free zones where the threat of censorship… looms large” (p. 166).

Conclusion: Interpretation, Limitation, and Future Research

The contours of First Amendment protections for religion, speech, press, assembly, and petition

have been and continue to be heavily debated. While the settings for speech may change – town

square and newspapers to social media and blogs – its continued protection ensures the “free

trade in ideas” (Abrams v. United States, 1919, p. 630).

This paper sought to explore the protection of online First Amendment protections via the

forum and state action doctrines. This issue is of increasing importance because “the Supreme

Court clearly views the Internet and now social media sites as at the core of First Amendment

protection by virtue of their place as modern-day public square.” However, “it is

unclear…whether the Court will extend this view beyond the reach of government state action in

a criminal law context” (Lipschultz, 2018, p. 253). Packingham v. North Carolina (2017)

suggests that forum doctrine applies to non-narrowly tailored access restrictions that do not take

into account the public’s widespread use of social media communications. Knight First

Amendment Institute at Columbia University v. Trump (2018) suggests that the state action

doctrine narrowly applies to some social media use by public officials. Absent an extension of

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the public exemption function to the state action doctrine as introduced in Marsh v. Alabama

(1946) and advocated by Jackson (2014), “the lines between what is private and what is public”

remain “blurry” (Sanders, 2018). Social media platforms will continue to face the dichotomy of

being “open and tolerant venues for expression” and “constitution-free zones where the threat of

censorship… looms large” (Jackson, 2014, p. 166).

The conclusions reached in this research paper are limited by: 1) the rapid changes in

social media use and platform policies; 2) the lack of definitive legal precedence on the subject;

and 3) volatile public opinion about social media.

Social media’s increasing influence in public discourse, the workplace, and all aspects of

culture and civic life elevate the topic’s future research potential. Future research may explore

the technical aspects of online free speech. This may include the impact of algorithms and

artificial intelligence monitoring and policing of speech. Future research may further explore

corporate decision-making as it relates to terms of service and community guidelines. In

addition, research may examine state legislation and administrative law regulating online free

speech and social media platforms. Such legislation-focused research could further scrutinize

balancing considerations between the private property rights of social media companies and the

public interest as raised by Wheatley (2017). Finally, research may scrutinize workplace

limitations of online speech as adjudicated in Kroger Co. of Michigan v. Granger (2014).

In closing, online free speech protections are a continuously evolving topic that challenge

the traditional meanings of the forum and state action doctrines. The exact contours of social

media access and free speech will become more pronounced as the courts hear relevant cases in

the coming years.

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