Thursday, May 28, 2020

If the Government Bans Social Media Platforms Viewpoint Discrimination, That Would Also Protect Pro-Terrorist Content

By Eugene Volokh - May 28, 2020 at 02:18PM

There's been a good deal of talk, in President Trump's "Preventing Online Censorship" draft Executive Order as well as elsewhere, about forbidding viewpoint discrimination by social media platforms. (Some call for that outright, while others suggest using the threat of increased liability to pressure platforms to stop such viewpoint discrimination.) I don't think that's consistent with current law (more on that soon), but I can certainly imagine Congress enacting some such statute.

Platforms could respond that they have a First Amendment right not to host speech they disapprove of, much like newspapers may refuse to publish items they disapprove of (see Miami Herald Co. v. Tornillo). But it's possible that they would be treated more like cable systems; the Supreme Court rejected (by a 5-4 vote) a First Amendment challenge to facially content-neutral "must-carry" statute requiring cable systems to carry broadcast channels (see Turner Broadcasting Sys. v. FCC).

But, as I understand it, social media platforms routinely engage in one form of broadly accepted viewpoint discrimination: They try to block and to remove pro-terrorist speech (see, e.g., this general Facebook policy). This isn't limited to speech by known terrorist organizations, nor is it limited to constitutionally unprotected incitement of imminent terrorist activity, or solicitation of specific terrorist acts. Even speech that is protected by the First Amendment from governmental punishment, such as a lone-wolf American urging people to generally engage in jihadist violence, or praising people who had recently engaged in jihadist attacks, gets blocked. What's more, as I understand it, the federal government has long appreciated such actions (though it couldn't constitutionally require them).

If Congress were to indeed require social media platforms to be viewpoint-neutral (or content-neutral) in dealing with user-generated content, then they would have to stop blocking content that expresses a pro-terrorist-violence viewpoint. Likewise, if the federal government stops advertising on platforms that impose "viewpoint-based speech restrictions" or "Violate Free Speech Principles," it would have to limit online platform advertising to groups that don't discriminate against pro-terrorist speech, either. (I quote here from sec. 3 of the draft Executive Order, which seems to contemplate stopping advertising on such platforms, though it doesn't on its face prohibit such advertising.)

Likewise, sec. 4 of the draft Order says that "It is the policy of the United States that large social media platforms, such as Twitter and Facebook, as the functional equivalent of a traditional public forum, should not infringe on protected speech." Again, though, much pro-terrorist advocacy (including of the sort that social media platforms try to stop) is protected speech under the Supreme Court's precedents.

Nor do I think that the draft Order could be revised to just have a "but not pro-terrorist viewpoints" limitation. To the extent that Congress can indeed impose limits on social media platforms' editing, those limits must themselves be viewpoint-neutral (and perhaps even content-neutral). Certainly Turner Broadcasting, which upheld Congress's power to require cable systems to carry channels they didn't want to carry, stressed the content-neutrality of that rule. Likewise with PruneYard Shopping Center v. Robins (cited by the draft executive order), which upheld a state's power to require shopping centers to carry speech they didn't want to carry.

The government isn't allowed to discriminate based on viewpoint when it uses its own property to promote a diversity of private ideas. (See, e.g.Rosenberger v. RectorMatal v. TamIancu v. Brunetti.) By the same logic, it can't discriminate based on viewpoint when it tries to promote a diversity of private ideas on private property, either. Such a grant of immunity from private restraint is as much a government-provided benefit as a grant of money to a wide range of university student groups (Rosenberger) or a grant of trademark protection to a wide range of trademark owners (Matal and Iancu).

The matter is not completely certain, as I discuss at pp. 375-77 of this article; for instance, in Ralphs Grocery Co. v. United Food & Commercial Workers Union Local 8 (Cal. 2012), the California Supreme Court upheld a content-based law that allowed union picketing but not other picketing on employers' private property. In practice, though, even that content-based rule wasn't really viewpoint-based because employers of course could all along speak out in opposition to the union speech on their own property. And in Waremart Foods v. NLRB (D.C. Cir. 2004), the D.C. Circuit held that a similar rule would be unconstitutional precisely because it was content-based. The Supreme Court's plurality opinion in Pacific Gas & Elec. v. Pub. Util. Comm'n (1986) likewise generally condemns "content-based grant[s] of access to private property." (In Turner Broadcasting, the majority seem to endorse the plurality's condemnation of content-based grants of access, by stressing that, "unlike the access rules struck down in [Pacific Gas & Elec.], the must-carry rules are content neutral in application.") And, as I noted above, the general prohibition on viewpoint discrimination in programs aimed at promoting a diversity of private views is broad and strong.

Of course, if a government rule were indeed to require content neutrality—the rule in traditional public fora—and not just viewpoint neutrality, then even more platform restrictions (including some pretty popular ones) would be forbidden. Consider, for instance, some platforms' deleting material (especially on user request) for being pornographic (at least unless they're constitutionally unprotected hard-core "obscenity"), containing nonlibelous personal insults, containing vulgarities, and so on.

Now of course one possible response is that platforms indeed shouldn't be allowed to ban pro-terrorist speech, because the platforms really are "the functional equivalent[s] of a traditional public forum," and the solution for bad speech—on the platforms as well as on sidewalks and in parks—is counterspeech. Another response might be that platform exclusion of pro-terrorist speech is good on its own, but on balance it's better to sacrifice that in order to ban viewpoint discrimination by platforms more broadly. There is much to be said for these sorts of arguments.

But here I just wanted to note that requiring viewpoint neutrality by platforms would indeed invalidate platforms' attempts to suppress pro-terrorist advocacy, and that requiring viewpoint neutrality but excluding some viewpoints would likely be unconstitutional—a result that would make such viewpoint neutrality mandates much less plausible politically.

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