Yes, Private Companies Can be Subject to The First Amendment


In the last few years, a lot of people who previously would have hated Libertarian ideas — such as the idea that private organizations should be relatively free from government interference — are now quite happy with them, at least the ones that now allow their team to restrict the free expression of the opposite team.

Most often, this takes the form of an argument that private companies are not subject to the First Amendment. The counter argument is that our country is worse off regardless of who is censoring speech, and even if private interests can curtail speech they don’t like, they shouldn’t.
However, the Supreme Court has often ruled that not only shouldn’t they, they can’t.

In Marsh v Alabama in 1946, the court ruled “that the more an owner opens his property up to the public in general, the more his rights are circumscribed by the statutory and constitutional rights of those who are invited in, ” so a private company town could not rid itself of Jehovah’s Witnesses. This principle could clearly be applied to Twitter and Facebook.

The Supreme Court has also ruled that the government is not allowed to privatize censorship. So if, for instance, the Senate were to call Facebook to a hearing and threaten it with regulation if it does not remove otherwise protected posts, the Court would likely consider that sort of undue influence a violation of the Constitution, because the government has deputized the private company. ( Feel free to read “were to” as “already has” )

The government routinely acts to restrict private interests when there is a compelling public interest. For instance, the government restricts free association in preventing many forms of discrimination, and it prevents the free exercise of economic contracts with minimum wage laws. The 1934 “Equal Time” rule required radio and television stations to sell air time equally to political candidates, and the 1949 Fairness Doctrine required that broadcasters allow contrasting opinions.

Private interests are the foundation of our society and government, but our founders also understood how societies can go wrong; this is why we have a Republic and not a popular Democracy. The optimal form of society and government is neither anarchy nor oppressive control, but one in which personal freedoms are balanced by minimal restriction and regulation. The goal is to find the optimal balance between an oppressive government and an oppressive ruling mob. I still have a generally libertarian view of private media, but I also think that private censorship is just as harmful — but more pervasive — than public censorship.

You may recall how enthusiastic Democrats were about requiring access to media with the Fairness Doctrine during Rush Limbaugh’s heyday, or about regulating corporate speech after Citizen’s United; I think nearly all of the “private interests” arguments I see are just thinly veiled schadenfreude, driven more by tribal politics than by principle. There are some really important issues for us to work through on the role of private corporations in promoting or restricting speech, but tribalism isn’t the way to do it.

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