LAWRENCE — In a society in which our public speech increasingly takes place online via private companies like Facebook and Twitter, the gold standard of protecting speech — the First Amendment — may or may not apply. A University of Kansas professor has authored a study exploring whether the First Amendment has any role to play in the private sector as Internet companies continue to create and enforce their own content rules and community guidelines.
Jonathan Peters, assistant professor of journalism and affiliate scholar at the KU Information & Telecommunication Technology Center, has completed research analyzing whether the First Amendment can be used to constrain the policies and practices of online content hosts. For example, if Facebook restricts a user’s speech under one of its content rules, could the user bring a First Amendment claim against Facebook?
At the heart of the study, to be published shortly in the William & Mary Bill of Rights Journal, is the “state action doctrine.” It tells the federal government that generally it lacks the power to regulate the policies and practices of private entities under the Constitution. A media law scholar, Peters wanted to know how the doctrine distinguishes the public and private spheres, and whether it forecloses the First Amendment’s application to privately owned content hosts that operate in some respects as public forums.
“Many people have assumed away the state action doctrine and its application to sites like Facebook and Twitter, simply assuming that the doctrine sweeps the First Amendment off the table,” Peters said. “It seemed a good time to give that issue more scholarly attention, because many of the ongoing Internet policy discussions, worldwide, are focusing on the extent to which private intermediaries are acting as arbiters of free speech — and we need to understand the First Amendment’s role here, if any.”
In the study, Peters discusses the development of new spaces online for public speech, and, focusing on content hosts, he observes that some offer free access and a platform dedicated to all manner of speech activities — and thus they can look and act the part of virtual public forums. But then there is the issue of ownership: Companies like Facebook and Twitter are nongovernmental entities, a fact that complicates the state action analysis.
Peters looks at two lines of cases addressing the application of free speech protections to private spaces — lines that produced varied results based on different conceptions of what makes a space public under the state action doctrine: the nature of a space’s ownership or its use. According to the first line, private ownership alone is enough to foreclose the First Amendment’s application. According to the second line, ownership is not the key — rather, it’s the space’s similarity to traditional public forums, again a fatal blow for content hosts because such forums are pieces of real property.
For those reasons, Peters concludes that the state action doctrine does not permit the First Amendment’s application to privately owned content hosts. However, he goes on to devise a state action theory that he says is suitable for a digital world in which title and public use overlap less frequently.
“As online communication continues to evolve, and as various content hosts continue for many people to be their principal means of public communication, a state action theory that fails to protect free speech [principles] in digital spaces is problematic,” Peters writes. “It is problematic in light of the nation’s history of protecting discourse in the spaces where it actually occurs.”
The state action theory that Peters articulates would balance the rights of property owners with those of property users and allow judges to make case-by-case decisions that take into account the fast-changing attributes of online spaces. He draws from the U.S. Supreme Court case Marsh v. Alabama, a First and 14th amendments case decided in 1946, to develop the balancing test. The justices ruled in that case that a citizen’s rights were violated when he was barred from distributing religious materials in a privately owned town. The case planted the seeds for the idea that privately owned spaces can take on public attributes and even be subject to constitutional limits.
Peters frames all of this against the background of historical analysis of the state action doctrine and its traditions and values. He believes the biggest challenge today of applying the doctrine — at a time when platforms like Facebook and Twitter are engaging in private regulation of public speech — lies at the juncture where private and public spheres meet.
“My theory attempts to ensure that as the public becomes more private, and the private becomes more public, the state action doctrine’s contours will align with those of our fundamental rights,” Peters said.