In Marsh v. Alabama, a Jehovah’s Witness was arrested and convicted of trespassing for proselytizing on a public sidewalk that nonetheless was, like everything else in the “company town,” privately owned. The Court reversed, holding that the First and Fourteenth Amendments applied against a private actor if it exercised all the powers and responsibilities traditionally associated with a government—policing, utilities, and traffic control, for example. Writing for the majority, Justice Black declared, “The more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it.”
The line of cases stretching back to Marsh all involved access to privately owned physical spaces. The rise of the internet has created new quandaries. Is the internet akin to a privately owned shopping space open to the public? Or is it that the modern public forum is, at the very least, a “digital company town,” and thus where constitutional protections apply?
This Note argues that the social media companies fit into the historical exception to the state action doctrine established in Marsh, such that the largest social media companies, given their power, should be considered public forums despite their private ownership. Therefore, those companies, though private, could be subject to First and Fourteenth Amendment claims of violating the right of free speech. Part I of this Note surveys the history of the public forum element of the state action doctrine in free speech cases. Part II will look at the scope of the social media companies’ role in speech and why it should thus be subject to free speech protections. Part III will consider some objections to this proposed extension of the law.
De Facto State: Social Media Networks and the First Amendment,
Notre Dame L. Rev.
Available at: https://scholarship.law.nd.edu/ndlr/vol95/iss2/8