Freedom of expression and private property | News, Sports, Jobs
By JUDGE ANDREW P. NAPOLITANO
Former President Donald J. Trump recently filed a lawsuit in Miami Federal District Court against Big Tech companies who denied him a platform. He targeted Twitter and Facebook, whose media platforms he had used with spectacular success before and during his presidency to advance his ideas and attack his opponents.
Trump has perfected the art of communicating directly with the American public, thus avoiding the mainstream media, as the primary means of reaching voters. When Twitter and Facebook denied him access earlier this year, he launched his own digital platform. When that was unsuccessful, he sued those who denied him access to theirs.
The theory of its dispute is that “The Internet is the new public place. So, he argues, not only should all forms of speech be tolerated on the Internet, but the courts – the judicial arm of government – should compel owners of Internet platforms to broadcast speech that they hate or fear. Can the courts do this?
Here is the backstory.
The First Amendment prohibits the government from interfering with freedom of speech and of the press. The principles underlying these prohibitions are that freedom of expression is a natural right that derives from our humanity, freedom of the press is an extension of freedom of expression, and we are free to use both as good to us. The government does not grant these freedoms; the Constitution forbids him to interfere.
So we can think as we want, say what we think and publish what we say. In terms of speaking and posting opinions about the government, there are literally almost no limits.
The Supreme Court has repeatedly ruled that caustic, robust, broad, open, even inflammatory speech is a predicate for making free political choices in a free society.
The corollary of freedom of expression is the right to remain silent. So the courts have ruled that the same First Amendment that keeps the government at bay when you say anything you want to say about it also prohibits the government from forcing you to speak.
These prohibitions apply only to government because the clear meaning of the words of the First Amendment only restricts Congress; and after the ratification of the 14th Amendment, it retains any government. On the other hand, there is no clause in the Constitution that prevents individuals or private entities on their own property from infringing on the freedoms of others while they are on that property.
So the Post can’t kick me out of its buildings because of my political views or the color of my polo shirt, but you can kick me out of your garden party for one reason or another.
As you are free to invite me to your private property, you are free to exclude me. The legal definition of private property has three branches: the right to use it as it sees fit, the right to alienate it (sell, rent or pledge) and the right to exclude everyone, even the government. Without the right of exclusion, property is not really private.
The platforms that Trump has pursued are unquestionably private. So they – like you at your garden party – are free to invite whoever they want and to exclude whomever they want. Trump’s lawyers know this because it is deeply rooted and well established in our history, our law and our values.
Although the government has encroached on private property, it has not done so in modern times with respect to speech; and he has never done it so successfully when it comes to forced speech. In other words, the government has never forced a private landlord to allow speeches on his property that he disapproves of. If I sued you and asked a judge to make you admit me to your garden party to proselytize, you would win and I would end up paying your legal fees.
To get around this barrier to private property, Trump’s lawyers have used a rarely used tool called state action. This doctrine can impose on a private owner the same constraints imposed on the government when the government and the private owner are in a symbiotic relationship.
Under the law, a symbiotic relationship exists when the government and the private owner have a mutually beneficial financial relationship, or a relationship where it is impossible to say who is pulling the strings – the government or the private owner.
The classic case of a symbiotic relationship is that of a private food vendor who rents space in a government-owned stadium also leased to a sports team. If a Yankee Stadium vendor denies me service for wearing a MAGA cap, state action doctrine would place the same restrictions on the vendor as on the government because the vendor is on government property and the vendor and government (and the Yankees) all simultaneously interact with each other for their own financial benefit.
But state action only applies when there is a mutually beneficial financial relationship. Such a relationship simply does not exist between the government and Big Tech. Trump’s lawyers have argued that because some Democrats in Congress have welcomed Trump’s ban from Big Tech, Big Tech is bidding the government. But that argument confuses a handful of members of the government voicing their personal political views with the government itself, which derives no financial benefit from Trump’s ban.
Using the courts to force political discourse is a most dangerous proposition. The whole point of the First Amendment is to keep the government out of the business of speaking. If the government can force Facebook to carry Trump’s denunciations, can it force Fox to carry Senator Bernie Sanders’ exhortations?
The answer is obvious.