People think in such binaries now that they become confused as to how the Right can both affirm freedom of association for a baker who does not want to roast up a gay cake, and also criticize social media for its biased censorship of conservatives?
Their binary view prevents them from looking deeply into the nature of these services. A bakery making custom cakes is one store of many and is selling a non-essential product; people can simply go elsewhere. However, social media fits in with businesses that are more like utilities, creating products that are all required to use.
We can see some analogies in the world around us, starting with what happens when a street is privately owned:
The city’s tax office auctioned off the property in 2015 in order to recover the unpaid back taxes, penalties, and interest. Cheng and Lam quickly moved on the land in April of that year.
The street—a block-long, private, and oval-shaped with a round-the-clock guard—is home to what the Chronicle calls “35 megamillion-dollar mansions.”
Now let us consider that one of those homes belongs to someone who has Right-wing political views. Would anyone out there consider it acceptable that the owners of the street block passage through their land to someone who owns a house that is only accessible through that land?
In that case, the business of those who own the land would be to rent access to land that others own. It would have nothing to do with who they were, because they would already have been selected by having bought the property nearby. If they were excluded from that land, an unworkable situation would result.
In the cake shop, we have a highly specialized business where there are no conversations open to both sides because there are no conversations except about what he sells, as a means to conduct transactions. In the rental block, we have a platform designed for communication, sort of like a phone network (remember those?) or a public speaking hall.
The first case involves a business which is one of many options; the second involves a single option through which one accesses many businesses and people. The second is more like a utility, while the former is more like a bazaar, where one booth can be easily bypassed for a competitor.
When a business controls the vast majority of traffic in a field, and being represented there is necessary to be found by others, it more resembles a utility like a telephone carrier, a necessary contact like a telephone book (back when those were a thing), or a public space like a shopping mall, pub, toll road, or park.
In the past, government has recognized the need for free speech in public spaces even when owned by private entities:
The requirement that appellants permit appellees to exercise state-protected rights of free expression and petition on shopping center property does not amount to an unconstitutional infringement of appellants’ property rights under the Taking Clause of the Fifth Amendment, appellants having failed to demonstrate that the “right to exclude others” is so essential to the use or economic value of their property that the state-authorized limitation of it amounted to a “taking.”
…The shopping center, by choice of its owner, is not limited to the personal use of appellants, and the views expressed by members of the public in passing out pamphlets or seeking signatures for a petition thus will not likely be identified with those of the owner. Furthermore, no specific message is dictated by the State to be displayed on appellants’ property, and appellants are free to publicly dissociate themselves from the views of the speakers or handbillers.
The legal reasoning behind this seems sound: if you open a place up to the public for no specific single type of transaction, for example selling your custom-made cakes, then you cannot restrict those who are exercising free speech on topics unrelated to your business.
Consider the similar language in the American Renaissance suit against Twitter:
Judge Kahn recognized Taylor’s claim under California’s Unfair Competition Law (UCL) that Twitter could be, in effect, guilty of false advertising by holding itself out as a public forum for free speech while reserving the right to ban the expression of ideas with which it disagrees.
This case has not yet been decided, but this opening salvo means that the judge sees merit in the claim. Twitter is a public space with no single type of transaction, and since it has made itself a public meeting ground, it cannot regulate speech unrelated to its primary business.
Other courts have held that Donald Trump using Twitter as a public platform creates a constitutional right to be able to follow and reply to him:
President Trump’s decision to block his Twitter followers for their political views is a violation of the First Amendment, a federal judge ruled Wednesday, saying that Trump’s effort to silence his critics is not permissible because the digital space in which he engages with constituents is a public forum.
…The decision marks a victory for free-speech activists representing seven Twitter users who alleged that their rights had been infringed after they tweeted at Trump critiquing his policies. Trump blocked them on Twitter, preventing them from seeing his tweets from their account or interacting with them.
…Importantly, the ruling identifies only parts of Trump’s account as a public forum subject to First Amendment protections, not the entire account nor the rest of Twitter.
The Leftspeak of the last paragraph may be premature, since what this case does is to establish that Twitter is a public forum since it is being used by public figures. This means that, constitutionally, these figures cannot block others from participating, but it also has other implications.
If we combine the view of these three cases, we see that a new form of law is evolving to deal with privately-owned entities that act as public forums. In other words, they do not need public ownership to serve a public role, and if they do, they have an obligation to uphold speech rights.
In fact, some of the oldest legal reasoning on the topic suggests that private spaces which act like public spaces are beholden to the same rules as actual public spaces:
The town, a suburb of Mobile, Alabama, known as Chickasaw, is owned by the Gulf Shipbuilding Corporation. Except for that it has all the characteristics of any other American town.
…The town and the surrounding neighborhood, which can not be distinguished from the Gulf property by anyone not familiar with the property lines, are thickly settled, and according to all indications the residents use the business block as their regular shopping center. To do so, they now, as they have for many years, make use of a company-owned paved street and sidewalk located alongside the store fronts in order to enter and leave the stores and the post office. Intersecting company-owned roads at each end of the business block lead into a four-lane public highway which runs parallel to the business block at a distance of thirty feet. There is nothing to stop highway traffic from coming onto the business block and upon arrival a traveler may make free use of the facilities available there. In short the town and its shopping district are accessible to and freely used by the public in general and there is nothing to distinguish them from any other town and shopping center except the fact that the title to the property belongs to a private corporation.
…From these decisions it is clear that had the people of Chickasaw owned all the homes, and all the stores, and all the streets, and all the sidewalks, all those owners together could not have set up a municipal government with sufficient power to pass an ordinance completely barring the distribution of religious literature.
…Ownership does not always mean absolute dominion. 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.
…Since these facilities are built and operated primarily to benefit the public and since their operation is essentially a public function, it is subject to state regulation.
…We do not think it makes any significant constitutional difference as to the relationship between the rights of the owner and those of the public that here the State, instead of permitting the corporation to operate a highway, permitted it to use its property as a town, operate a “business block” in the town and a street and sidewalk on that business block.
In other words, if it acts like a public space, it is a public space as far as Constitutional rights are concerned. The interesting argument here translates into the question, “If this business concern were to make itself a municipality, what rules would it be forced to obey?”
If Twitter — which one accesses from public internet, including some subsidized by government in libraries and schools — were a municipality, it could not recklessly ban conservatives. Since there is no public equivalent, and Twitter acts like a public virtual space, speech rights apply there.
The same applies to Facebook, Reddit, YouTube, Google, and other market leaders who not only act as public spaces, but through their dominance of the market, have effectively excluded other competition from offering the same “network effects” that they do, mainly because “everyone” is already on these platforms.
In this way, these social media sites are more like a toll road or a phone service than other type of business. They are a means through which people reach other people. They are de facto required in order to reach these people directly, much as a telephone line is.
History shows us that our law developed “common carrier” status for telecommunications businesses in order to ensure universal access to communications:
Network neutrality means applying well-established “common carrier” rules to the internet in order to preserve its freedom and openness. Common carriage prohibits the owner of a network that holds itself out to all-comers from discriminating against information by halting, slowing, or otherwise tampering with the transfer of any data (except for legitimate network management purposes such as easing congestion or blocking spam).
The ACLU confuses this with another issue, which is traffic prioritization, which becomes an issue when some firms — like the big social media sites — use more traffic than others, and so smaller firms demand they pay a higher rate for traffic than others.
If the ACLU were thinking clearly, they would see that this analogizes to a telecommunications firm charging by the minute, instead of what common carrier rules are meant to protect, which is deliberate manipulation of content or markets unrelated to congestion.
Another wrinkle to consider: common carriers are those who carry the signals of others:
The term “common carrier” or “carrier” means any person engaged as a common carrier for hire, in interstate or foreign communication by wire or radio or interstate or foreign radio transmission of energy, except where reference is made to common carriers not subject to this chapter; but a person engaged in radio broadcasting shall not, insofar as such person is so engaged, be deemed a common carrier.
This distinction shows us a common thread of law going back to the 1940s: if your business does one thing alone, you control that; if your business consists of public interactions not of your origin, it behaves more like a municipality and therefore free speech rights kick in.
If we lived in a purely free market, this would make no sense: you could do whatever you wanted with your own property. However, the social model that produced Twitter did not come from a free market, nor is the market that regulates this in any way “free”; it is mostly a regulatory creation.
In the best scenario, we have free markets under the influence of culture and wise local aristocrats. These would probably take one look at Twitter, Facebook, Reddit, Amazon, Google, and Apple and immediately ban them from their districts. Clearly nothing good comes from carnies (entertainment companies) having this much power.
When companies such as these have monopolies, the consumer has no power because boycotts only hurt the consumer, who needs services like Twitter to reach other consumers because they in turn rely on this service. This means that the free market has no recourse to fix the problem.
How did Twitter become such a monopoly? In part through government action: most government agencies release their latest press information through Twitter. This makes it a public space in which those who are inclined toward politics must participate.
Situations like this call for exceptional law to address what otherwise are exceptions to the norm. If you run a regular bakeshop, you should not be forced to bake that cake; if you dominate a communications medium, you should not be allowed to force others off for merely mentioning the cake.
The Left will not understand this, of course, because they are one-step thinkers whose depth is limited to understanding broad categories of “scary” or “safe.” When we look deeper into the legal history of public services, however, we find this interesting argument that social media should not be able to censor us.