Volume 44 Issue 1 Spring

Spring 2014

Censorship and Freedom of Expression in the Age of Facebook

Benjamin F. Jackson

Recommended Citation Benjamin F. Jackson, Censorship and Freedom of Expression in the Age of Facebook, 44 N.M. L. Rev. 121 (2014). Available at: https://digitalrepository.unm.edu/nmlr/vol44/iss1/6

This Article is brought to you for free and open access by The University of New Mexico School of Law. For more information, please visit the New Mexico Law Review website: www.lawschool.unm.edu/nmlr 33996-nmx_44-1 Sheet No. 66 Side A 02/06/2014 10:11:19 121 INTRODUCTION Benjamin F. Jackson* Benjamin IN THE AGE OF FACEBOOK IN THE This article argues that federal courts can and should extend First This article argues that federal courts protections can be extended Part II explains how First Amendment For hundreds of millions of people, hardly a day goes by without at millions of people, hardly a day goes For hundreds of *to thank his parents and his J.D., Harvard Law School. The author would like CENSORSHIP AND FREEDOM OF EXPRESSION OF FREEDOM AND CENSORSHIP M K least a brief visit to a social network website, such as Facebook. Social to a social network website, such least a brief visit politics across the play a major role in social life and network websites and how political individuals interact with each other globe, shaping how at large. While, and communicate with the public movements organize open and free websites have served as relatively thus far, social network and internal pressures they face a number of external forums for speech, censorship by social network websites to censor content. The prospect of unclear whether the First Amendment is especially troubling because it is on social network websites. provides any protections for communications websites, are ordinarily shielded from Privately owned spaces, like these state action doctrine. First Amendment scrutiny by the on social network websites Amendment protections to communications have assumed as forums for speech due to the importance these websites background on social network web- and public discourse. Part I provides of social network websites in con- sites. Part I.A discusses the importance Part I.B explores the pressures that temporary social life and politics. to censor content, as well as the po- might lead social network websites tential implications of such censorship. websites in order to mitigate this to communications on social network aside the threshold issue of state ac- threat of censorship. Part II.A sets public communications on social net- tion in order to demonstrate that of First Amendment protection, work websites are especially deserving the three First Amendment freedoms because they simultaneously invoke can of speech, press, and association. Part II.B then argues that courts state and should deem censorial acts by social network websites to be action under the public function exception to the state action doctrine brother for their tireless support, Mr. John G. Palfrey for his exceptional guidance, and Prof. Susan P. Crawford for her insightful comments. \\jciprod01\productn\N\NMX\44-1\NMX104.txt unknown Seq: 1 4-FEB-14 13:06 C Y 33996-nmx_44-1 Sheet No. 66 Side A 02/06/2014 10:11:19 A 02/06/2014 66 Side Sheet No. 33996-nmx_44-1 33996-nmx_44-1 Sheet No. 66 Side B 02/06/2014 10:11:19 1 M K see C Y EWS- N [Vol. 44 , available (Nov. 15, NTERNET I EW P 210, 211 (2008), . , OMM C Social Network Sites: Definition, His- Facebook, the world’s most popular 3 EDIATED -M OF CENSORSHIP OMPUTER has over 800 million users worldwide and can has over 800 million users worldwide 4 NEW MEXICO LAW REVIEW J. C Why Americans Use Social Media Mark Zuckerberg’s 650 Million Friends (and Counting) , 13 (Mar. 6, 2011, 12:00 AM), http://mag.newsweek.com/2011/03/06/ (Mar. 19, 2010), http://blog.nielsen.com/nielsenwire/global/global-audi- danah m. boyd & Nicole B. Ellison, WEEK AGAZINE IELSEN See I. WEBSITES AND THE THREAT SOCIAL NETWORK Because courts may cite the availability of alternative paths to pro- alternative paths availability of courts may cite the Because In recent years, social network websites such as Facebook, In recent years, social network N M and many users of the most popular social network websites make and many users of the most popular , 2 3. 4. Katie Baker, 1. Facebook is currently the most widely known and paradigmatic ex- Because 2. Aaron Smith, http://onlinelibrary.wiley.com/doi/10.1111/j.1083-6101.2007.00393.x/pdf (noting that http://onlinelibrary.wiley.com/doi/10.1111/j.1083-6101.2007.00393.x/pdf 2011), http://pewinternet.org/Reports/2011/Why-Americans-Use-Social-Media.aspx. social network website, tory, and Scholarship at these sites into their daily practices”); many users of social networks “integrated More a Month on Social Networks than Last also Global Audience Spends Two Hours Year mark-zuckerberg-s-650-million-friends-and-counting.html. While Facebook is by far mark-zuckerberg-s-650-million-friends-and-counting.html. While Facebook is the most popular social network website in the United States and in most countries, in some other social networks dominate particular countries’ markets, such as Orkut ence-spends-two-hours-more-a-month-on-social-networks-than-last-year.html (detail- ence-spends-two-hours-more-a-month-on-social-networks-than-last-year.html ing the results of a 2010 survey that indicated that across 10 countries, the average on the Facebook user logged into the site 19 times per month, spending nearly 6 hours site). visits to such sites a near-daily ritual. ample of a social network website, this Article will primarily use Facebook to illus- ample of a social network website, this trate its points. tection of communications on social network websites as a rationale for websites as a on social network communications tection of examines II.B, Part III briefly for by Part the route argued not taking and federal federal legislation, law, state and state constitutional whether protections for might also be able to provide media access regulations III demonstrates that on social network websites. Part communications than court-rec- is less viable and less desirable each of these alternatives on social net- protections for communications ognized First Amendment work websites. Twitter, and YouTube have be- Google+, Instagram, Myspace, Tumblr, online landscape. Currently, two-thirds come a prominent feature of the are users of a social network web- of all Americans with internet access site, and, where possible, the entwinement exception to the state action the state to exception the entwinement possible, where and, doctrine. \\jciprod01\productn\N\NMX\44-1\NMX104.txt unknown122 Seq: 2 4-FEB-14 13:06 A. Life and Politics Websites in Contemporary Social Social Network 33996-nmx_44-1 Sheet No. 66 Side B 02/06/2014 10:11:19 B 02/06/2014 66 Side Sheet No. 33996-nmx_44-1 33996-nmx_44-1 Sheet No. 67 Side A 02/06/2014 10:11:19 R 123 UL- to C see also want available AND at 213–14. , Id. Andreas Wimmer OMMUNITY Second, social net- 6 As one federal court , C 7 see also 210, 211 (2008), 1137, 1152–60 (ex- (2009) . . 5 EV OMM 583, 603 (2010) (noting that “pic- DENTITY . C L. R : I OC Id. Social Network Sites: Definition, His- ELF While some relationship-focused OWA I S 10 . J. S EDIATED M A , 94 -M , 116 39, 43 (Zizi Papacharissi ed., 2011). note 6. ETWORKED Facebook F8: Redesigning and hitting 800 million Facebook F8: Redesigning and hitting ITES OMPUTER supra Aside from personal information, users of social Aside from personal A N S 8 in J. C , Social Network Sites as Networked Publics: Affordances, Dy- Social Network Sites as Networked Publics: Saving Facebook , 13 ETWORK CENSORSHIP AND FREEDOM OF EXPRESSION OF FREEDOM AND CENSORSHIP (Sept. 22, 2011, 2:55 PM), http://latimesblogs.latimes.com/technol- 9 N Beyond and Below Racial Homophily: ERG Models of a Friendship at 221 (“[T]he available research suggests that most [social network IMES OCIAL boyd & Ellison, danah m. boyd & Nicole B. Ellison, TURE ON S See See See id. L.A. T Relationship-focused social network websites, such as Facebook, Relationship-focused social network Social network websites differ from other kinds of websites for two kinds of websites from other websites differ Social network , 7. boyd, danah m. 9. 8. Facebook, Inc., 798 F. Supp. 2d 1090, 1092 (N.D. Cal. 2011); Cohen v. 6. 5.Olivarez-Giles, Nathan 10. M K http://onlinelibrary.wiley.com/doi/10.1111/j.1083-6101.2007.00393.x/pdf. Individual http://onlinelibrary.wiley.com/doi/10.1111/j.1083-6101.2007.00393.x/pdf. work websites allow their users to message one another and share online their users to message one another work websites allow typically through users to whom they are connected, content with other tools and stream-based updates. public commenting share information—often about themselves—and to obtain information of persons they and among groups and subgroups about others, within through using [so- with whom they become acquainted already know or cial network websites].” has noted, social network websites “exist[has noted, social ] because [their] users namics, and Implications at in terms of “visibility and access” as social network websites may vary considerably all share this common trait. well as “their features and user base,” but plaining that Facebook enables its members to present an image of themselves to the plaining that Facebook enables its members to present an image of themselves and world, to deepen their relationships with others, to establish their social position, to build social capital). networking websites may also share music, images, videos, and links to networking websites may also share other websites. James Grimmelmann, ogy/2011/09/facebook-f8-media-features.html. tory, and Scholarship have a third distinguishing characteristic: they support pre-existing, so- have a third distinguishing characteristic: called real-world social relationships. main reasons. First, the user experience on a social networking website is a social networking experience on First, the user main reasons. network web- users. All social with other towards connections oriented profile public or semi-public (1) construct a individuals to sites “allow with whom list of other users (2) articulate a bounded system, within a their list of connec- and (3) view and traverse they share a connection, by others within the system.” tions and those made & Kevin Lewis, Network Documented on Facebook websites] primarily support pre-existing social relations.”); Brazil, Ozone and Renren in China, Mixi in Japan, Cyworld in Korea, VKontakte and Brazil, Ozone and Renren in China, Mixi Odnoklassniki in Russia, and Zing in Vietnam. users receive upwards of 500 million site visits a day. site visits million of 500 upwards receive \\jciprod01\productn\N\NMX\44-1\NMX104.txt unknown 2014] Spring Seq: 3 4-FEB-14 13:06 C Y 33996-nmx_44-1 Sheet No. 67 Side A 02/06/2014 10:11:19 A 02/06/2014 67 Side Sheet No. 33996-nmx_44-1 33996-nmx_44-1 Sheet No. 67 Side B 02/06/2014 10:11:19 R R , M K 11 ITS C Y 13 B [Vol. 44 IMES See generally N.Y. T , Individual citizens note 2 (“Roughly two 15 293–94 (2010) (“Barack supra FFECT (John Allen Hendricks & Lynda E and how companies sell their and how companies 12 ACEBOOK F AMPAIGNING HE C T note 6, at 221; Smith, , note 14, at 293 (noting that the 2008 Obama cam- Obama and Twitter: White House Social-Networking supra NEW MEXICO LAW REVIEW supra Half of America Is Using Social Networks , RESIDENTIAL IRKPATRICK P K As Barack Obama’s 2008 presidential campaign demon- As Barack Obama’s 2008 presidential AVID IRKPATRICK Michael Sherer, 14 K D boyd & Ellison, OLITICS IN See P See See See These unique features have enabled social network websites to be- network websites enabled social features have These unique social lives, so websites have transformed our Just as social network (May 6, 2009), http://www.time.com/time/politics/article/0,8599,1896482,00.html. 15. 13. Somini Sengupta, 11. 12. White House maintains a Twitter feed, and at least thirty govern- The Obama 14. ECHNO IME goods and services. Social network websites serve a variety of purposes: Social network websites serve goods and services. tabs on suspects; and to vet nannies; police, to keep parents use Facebook natural disasters. authorities, to prepare for even federal government Obama’s 2008 presidential campaign used Facebook masterfully.”). Obama’s 2008 presidential campaign Lee Kaid eds., 2011) (discussing use of new social media to reach voters). strated, social network websites allow politicians to communicate with strated, social network websites a single day and enable their support- millions of their supporters within online groups, which can be used to ers to connect with each other and efforts. help plan rallies or support get-out-the-vote come part of the fabric of social life for hundreds of millions of people of millions social life for hundreds of the fabric of come part how individ- have transformed websites world. Social network around the how authorities govern, uals communicate, States and abroad, politics. In both the United too have they transformed tool for political have become an important social network websites and debate. Sev- protests, political expression, campaigning, mobilizing eral American politicians—including Palin, and Barack Obama, Sarah Scott Brown—extensivelyduring recent used social network websites campaigns. T cam- paign had “a large Facebook page, which gathered millions of fans during the to join paign,” and also that “local and regional Obama campaigns invited supporters en their own Facebook groups, which allowed them to mobilize local supporters politi- masse.”). Google has also pitched its social networking website, Google+, at use to cians, explaining on one promotional webpage how the site’s features can be of tures on Facebook represent and document, on the aggregate, ‘real life’ relationships tures on Facebook represent and document, that are socially meaningful. . . .”). in touch with current friends and family thirds of social media users say that staying sites, while half say that connecting with old members is a major reason they use these major reason behind their use of these friends they’ve lost touch with is a technologies.”). through Facebook and other social network ment agencies communicate to the public websites. T (Aug. 26, 2011, 7:30 PM), http://bits.blogs.nytimes.com/2011/08/26/half-of-america-is- using-social-networks/. social network websites do exist primarily to help strangers connect based connect strangers to help primarily do exist websites network social are con- of these websites most part users interests, for the on shared network. extended social already part of their people who are nected to \\jciprod01\productn\N\NMX\44-1\NMX104.txt unknown124 Seq: 4 4-FEB-14 13:06 33996-nmx_44-1 Sheet No. 67 Side B 02/06/2014 10:11:19 B 02/06/2014 67 Side Sheet No. 33996-nmx_44-1 33996-nmx_44-1 Sheet No. 68 Side A 02/06/2014 10:11:19 R 125 N.Y. , , Nov. IMES N.Y. T , , Feb. 21, 2011, at 14, Occupy Wall Street’s Media EWSWEEK Facebook has also become Facebook has also N 20 , Turmoil in Egypt: The Secret Rally That A Blogger at Arab Spring’s Genesis 17 From a Single Hashtag, a Protest Circled the From a Single Hashtag, a Protest Circled Alysia Santo, , https://www.google.com/+/learnmore/politics/ and Egypt. + 19 (June 15, 2009, 9:36 PM), http://www.huffing Occupy’s supporters have used Facebook, supporters have Occupy’s (Jan. 12, 2011), http://www.ethanzuckerman.com/ (Oct. 7, 2011, 11:57 AM), http://www.cjr.org/the_ 16 . , Feb. 11, 2011, at A9 (protesters announced demon- What if Tunisia Had a Revolution, But Nobody What if Tunisia Had a Revolution, But OST see also EV OOGLE . J. P CCRA T G R S Tunisia, , A Iran Election, Uprising Tracked on Twitter as Government Iran Election, Uprising Tracked on Twitter 18 Protesters Look for Ways to Feed the Web Ben Berkowitz, ALL SIN ’ note 16; W The Facebook Freedom Fighter , UFFINGTON CENSORSHIP AND FREEDOM OF EXPRESSION OF FREEDOM AND CENSORSHIP EART see also H OURNALISM (Oct. 17, 2011, 4:54 PM), http://www.reuters.com/article/2011/10/17/ supra , H . J Y http://mag.newsweek.com/2011/02/13/the-facebook-freedom-fighter.html; M Ethan Zuckerman, , EUTERS OLUM See R Charles Levinson & Margaret Coker, C See Google+ Politics , (Oct. 12, 2011), http://www.nytimes.com/2011/10/13/world/africa/a-blogger-at- Looking outside the United States brings social network websites’ the United States brings social network Looking outside , 16. Preston, Jennifer 19. 18. Santana, Rebecca 17. Preston, 20. Mike Giglio, M K IMES a force for political mobilization in Latin America. In 2008, activists in mobilization in Latin America. a force for political the paramilitary to organize marches against Colombia used Facebook World 25, 2011, at A28; Sparked an Uprising see also available at Tumblr, Twitter, and YouTube to mobilize support and organize protests. support and organize to mobilize Twitter, and YouTube Tumblr, pages with than 400 Facebook counted more the movement At its height, 100 Twitter accounts the world, as well as over 2.7 million fans around of followers. with tens of thousands T index.html (last visited Jan. 6, 2012). tonpost.com/2009/06/15/iran-election-uprising-tr_n_215914.html (noting how support- tonpost.com/2009/06/15/iran-election-uprising-tr_n_215914.html Mousavi and the Green Movement ers of Iranian presidential candidate Mir-Hossein in light of government censorship of the used Twitter to communicate and organize traditional media). blog/2011/01/12/what-if-tunisia-had-a-revolution-but-nobody-watched/ (noting that blog/2011/01/12/what-if-tunisia-had-a-revolution-but-nobody-watched/ many Tunisians “turn[ed] to YouTube and during the 2011 Tunisian Revolution especially Facebook” to keep up-to-date on DailyMotion videos, to blogs, Twitter and the news in their country); Kristen McTighe, news_frontier/occupy_wall_streets_media_team.php?page=all (explaining that Oc- news_frontier/occupy_wall_streets_media_team.php?page=all cupy website gets 500,000 “hits” per day). Watched? stration locations on internet). Censors Media us-wallstreet-protests-social-idUSTRE79G6E420111017. potential as a tool for political mobilization into even sharper relief. For for political mobilization into even potential as a tool in the Arab Spring, websites played a key role example, social network state censorship in organize protests and circumvent helping citizens to Iran, such countries as arab-springs-genesis.html (noting that “protesters were able to break the media black- arab-springs-genesis.html (noting that “protesters were able to break the media social out by spreading video, information and commentary through the Internet and media operations”). Team them. and groups, meanwhile, have also used social network sites to mobilize sites to network social also used have meanwhile, groups, and network web- States social in the United support. For example, political which “be- Movement, role in the Occupy played an important sites have Twitter experiment.” gan as a \\jciprod01\productn\N\NMX\44-1\NMX104.txt unknown 2014] Spring Seq: 5 4-FEB-14 13:06 C Y 33996-nmx_44-1 Sheet No. 68 Side A 02/06/2014 10:11:19 A 02/06/2014 68 Side Sheet No. 33996-nmx_44-1 33996-nmx_44-1 Sheet No. 68 Side B 02/06/2014 10:11:19 R R R M K C Y [Vol. 44 (Feb. 26, IME Dec. 6, 2011, T ( , ACEBOOK F , and YouTube’s homepage and YouTube’s 23 or eliminate the necessity, at times, of old- or eliminate the necessity, at times, No doubt many readers of this article have No doubt many readers 25 24 note Wall Street or- 16 (noting that many Occupy and in 2011 thousands of young Nicaraguans thousands of and in 2011 21 note 14, at 4. NEW MEXICO LAW REVIEW supra Like My Status: Memology 2011 supra The fact remains, though, that social network web- The fact remains, though, that social , 26 Mideast Unrest Spreads to Nicaragua — Virtually , http://www.youtube.com/channels (last visited Oct. 12, 2013) , http://www.youtube.com/channels (last 22 , Preston, UBE note 20. T , https://www.facebook.com/notes/facebook/like-my-status-memology-2011/ IRKPATRICK OU ) See, e.g. K Y supra Of course, the role of social network websites in politics should not of social network websites in politics Of course, the role Aside from their use as a campaigning and mobilization tool, social mobilization tool, campaigning and their use as a Aside from 23. Chang, Jonathan 25. 24. 21. 22. Tim Rogers, 26. a key role in organizing While social network websites undoubtedly played lists “News & Politics” and “Nonprofits & Activism” as two of its eigh- and “Nonprofits & Activism” lists “News & Politics” channels. teen primary video 2011), http://www.time.com/time/world/article/0,8599,2055679,00.html. 9:01 PM fashioned political communication tactics like distributing fliers and door- fashioned political communication to-door advocacy. be overstated, as several participants in social media-fueled protest move- several participants in social media-fueled be overstated, as websites are at best one campaigning ments have noted. Social network protest can yet replace the impor- tool in a set of many, and no online tance of boots on the ground personal experience with political statements by friends in their Facebook with political statements by friends personal experience news feed. used Facebook to protest the re-election bid of Nicaraguan President bid of Nicaraguan the re-election to protest used Facebook Daniel Ortega. sites have clearly become a powerful tool for political mobilization and sites have clearly become a powerful forum for political speech and de- organization, as well as an important bate around the globe. (“Causes & Non-profits” and “News & Politics” listed among top video channels). (“Causes & Non-profits” and “News & 10150391956652131. network websites have also become prominent forums for political ex- forums for become prominent websites have also network in Libya was the The United States’ military action pression and debate. (though most of the about topic on Facebook in 2011 ninth most-talked win and the death such as the Packers’ Super Bowl other top ten topics, anything but political), of Steve Jobs, were ganizers and social media experts have stated that while the online component to the ganizers and social media experts have stated that while the online component protests was critical, the protest movement was unsustainable without a physical presence). protests during the 2011 Egyptian Revolution, protest organizers also made distribut- as ing fliers in working-class districts of Cairo a key element of their publicity strategy, & the internet and Facebook were not as widely used in those districts. Levinson Coker, organization FARC that drew 10 million participants in Colombia and 2 and Colombia in participants 10 million drew FARC that organization worldwide, million more \\jciprod01\productn\N\NMX\44-1\NMX104.txt unknown126 Seq: 6 4-FEB-14 13:06 33996-nmx_44-1 Sheet No. 68 Side B 02/06/2014 10:11:19 B 02/06/2014 68 Side Sheet No. 33996-nmx_44-1 33996-nmx_44-1 Sheet No. 69 Side A 02/06/2014 10:11:19 , 31 127 YSPACE NGELS OF M But even , A 30 ETTER B Facebook also says Facebook HE 27 T , See Learn More INKER P (2011). Critics of technological deter- , http://peace.facebook.com/ (last visited TEVEN , http://www.facebook.com/principles.php S , https://transparency.twitter.com (last visited , https://transparency.twitter.com (last ECLINED See , http://www.facebook.com/facebook?sk=info D ACEBOOK which it claims will “create greater under- claims will “create which it F ACEBOOK 28 WITTER , F T , , ACEBOOK F , IOLENCE HAS V Myspace, however, has made no such commitments, conceiving of Myspace, however, has made no such commitments, CENSORSHIP AND FREEDOM OF EXPRESSION OF FREEDOM AND CENSORSHIP HY Id. W : and decrease violent conflict throughout the world. and decrease violent 29 See Peace on Facebook Facebook—Info Facebook Principles Transparency Report ATURE External pressures on social network websites to censor content or External pressures on social network Most of the major social network websites have publicly committed websites the major social network Most of N 30. 31.recognition of the maxim “if Some repressive regimes, however, in apparent 28. 29. 27. 1. Censorship External Pressures to Engage in M K UR if one grants that social network websites have a good track record thus social network websites have a good if one grants that trust them—they follow that one should blindly far, it does not then are, financial interests. companies that pursue their own after all, for-profit and the free exchange commitments to openness Despite their ostensible internal pressures to websites face external and of ideas, social network a troubling situation block particular users’ access, censor content or assumed in contempo- social network websites have given the importance life. rary social and political block access are most obvious in repressive and authoritarian regimes, block access are most obvious in a Communist party or a theocracy: particularly those that are run by that its “mission is to give people the power to share and make the world to share and make people the power is to give that its “mission and connected,” more open https://myspace.com/learnmore (last visited Oct. 9, 2013). https://myspace.com/learnmore (last visited standing” minism, however, might oppose this claim. to you cannot beat them, join them,” have instead turned to social network websites spec- keep tabs on their political opponents. For instance, several commentators have to ulated that the now-deposed Tunisian dictator Zine El Abidine Ben Ali’s decision Dec. 13, 2013) (aimed at decreasing world conflict through facilitating connections Dec. 13, 2013) (aimed at decreasing world Such lofty aspirations may not be as between individuals from diverse backgrounds). as the technologies that have made ideas and far-fetched as they might at first seem, people aware of the perspectives of other people increasingly mobile and that make in individuals who are unlike themselves may be a major factor in recent declines intrastate violence and interstate war. (last visited Dec. 13, 2013). Facebook has also identified “Freedom to Share and Con- (last visited Dec. 13, 2013). Facebook has “Fundamental Equality” as some of its ten nect,” “Free Flow of Information,” and core principles. share and connect” to music, design and itself primarily as a method to “[d]iscover, or societal good. culture rather than a force for political Dec. 13, 2013). (last visited Jan. 6, 2012). O themselves to the ideals of openness and transparency. Twitter has com- Twitter openness and transparency. to the ideals of themselves exchange of information.” to “the open mitted itself B. Websites Network Social on of Censorship Threat The \\jciprod01\productn\N\NMX\44-1\NMX104.txt unknown 2014] Spring Seq: 7 4-FEB-14 13:06 C Y 33996-nmx_44-1 Sheet No. 69 Side A 02/06/2014 10:11:19 A 02/06/2014 69 Side Sheet No. 33996-nmx_44-1 33996-nmx_44-1 Sheet No. 69 Side B 02/06/2014 10:11:19 R , M K C Y ALL N.Y. 35 , W http:// VGENY YDNEY Twitter [Vol. 44 (2011) , S E , note 19. Simi- ‘Any Normal REEDOM available at , Dec. 23, 2010, at F and Iranian au- and Iranian supra 34 . J. T See generally S (Dec. 6, 2011, 7:35 AM), and also blocks Twit- also blocks and NTERNET 32 ALL NK I I W , NDIA IDE OF I S http://online.wsj.com/news/articles/SB IMES ARK Saudi Prince Invests $300 Million in Twitter D N.Y. T HE , available at : T ‘Chilling’ Impact of India’s April Internet Rules (International Edition), June 14, 2010, NEW MEXICO LAW REVIEW ELUSION (Dec. 19, 2011, 5:13 AM), http://dealbook.nytimes.com/2011/ Vietnam Internet Users Fear Facebook Blackout Vietnam Internet Users Fear Facebook Iran’s Wet Blankets Put a Damper on Water-Park Fun Iran’s Wet Blankets Put a Damper on Water-Park Mr. Zuckerberg Goes to China D , (Nov. 17, 2009), http://news.smh.com.au/breaking-news-technol- ET EWSWEEK The United States has also witnessed governmental and has also witnessed governmental The United States (Dec. 7, 2011, 4:39 AM), http://india.blogs.nytimes.com/2011/12/07/ 36 N N , http://online.wsj.com/news/articles/SB1000142405274870381480457603 NK EALBOOK HE I ERALD T D Heather Timmons, , H NDIA See IMES I , Aug. 31, 2011, at A1, Democracies have seen their fair share of such pressure as well. In- such pressure as fair share of have seen their Democracies Vietnam has also taken steps to block Facebook; has also taken Vietnam available at 33 32. Chao, Loretta 33. M. Rusli & Mark Scott, Evelyn 34. Ben Stocking, 35. Farnaz Fassihi, 36. . J. OROZOV ORNING IMES T thorities are so fearful of the use of social network websites as an network websites of the use of social are so fearful thorities a stop to any lengths to put will go to great tool that they organizing fights. water gun networks, including organized on social gatherings ter; (discussing potential dangers of the internet and social media negatively impacting (discussing potential dangers of the internet global democracy). B1, 5143409583806. http://india.blogs.nytimes.com/2011/12/06/any-normal-human-being-would-be-offend ed/. T political pressure to censor content on social network websites. In the to censor content on social network political pressure diplomatic cables, release of classified United States wake of WikiLeaks’ Twitter to turn over Justice obtained a court order for the Department of mag.newsweek.com/2010/06/07/twitter-a-tool-for-spies.html. These developments mag.newsweek.com/2010/06/07/twitter-a-tool-for-spies.html. that the rise of communications on social have led some commentators to conclude democracy and prop up authoritarian network websites is just as likely to undermine and freedom. regimes as it is to promote democracy 12/19/saudi-prince-invests-300-million-in-twitter/. ogy/vietnam-internet-users-fear-facebook-blackout-20091117-iki0.html. chilling-impact-of-indias-april-internet-rules/; Heather Timmons, Human Being Would be Offended’ dia’s government, for example, has recently made several pushes to cen- for example, has recently made dia’s government, social media websites network websites, calling on sor content on social the content is “dis- if individuals formally complain that to censor content “sensibilities” of or if it offends the cultural paraging” or “harassing,” Indian people. 10001424053111904823804576502342250845116. S M N.Y. T M open up Tunisia to Facebook subsequent to his initial decision to block the site was open up Tunisia to Facebook subsequent to keep tabs on those who were using made in the hopes of “us[ing] that openness and organize.” McTighe, Facebook and Twitter to communicate Chavez encouraged citizens to denounce larly, the late Venezuelan strongman Hugo Twitter. Mac Margolis & Alex Marin, enemies of his Bolivarian movement on China has blocked Facebook entirely since 2009 entirely Facebook has blocked China a Tool for Spies \\jciprod01\productn\N\NMX\44-1\NMX104.txt unknown128 Seq: 8 4-FEB-14 13:06 33996-nmx_44-1 Sheet No. 69 Side B 02/06/2014 10:11:19 B 02/06/2014 69 Side Sheet No. 33996-nmx_44-1 33996-nmx_44-1 Sheet No. 70 Side A 02/06/2014 10:11:19 41 129 See L.A. , Jan. (Jan. , . J. T IME T Editorial, S , http://www. First Privacy, http://online. See ALL W , Weiner Fails to Quell available at available at which, while not cen- while which, , http://www.nytimes.com/ 37 available at , June 2, 2011, at A6, , June 17, 2011, at A34, . J. T IMES S , http://online.wsj.com/news/articles/SB10001424052748 Rules to Stop Pupil and Teacher From Getting Too So- 42 ALL N.Y. T W , , , Dec. 18, 2011, at A1, U.S. Presses Twitter for Data on WikiLeaks ), and British security minister Pauline Neville-Jones, ), and British security 40 IMES available at CENSORSHIP AND FREEDOM OF EXPRESSION OF FREEDOM AND CENSORSHIP YouTube Is Letting Users Decide on Terrorism-Related Videos YouTube Is Letting Users Decide on Terrorism-Related YouTube has faced challenges from Senator Lieberman, Rep- from Senator has faced challenges YouTube N.Y. T 39 , Paul Sonne, Jennifer Preston, Twitter has also faced challenges from Senator Joe Lieberman, from Senator has also faced challenges Twitter 38 Id. See See (Dec. 12, 2010), http://articles.latimes.com/2010/dec/12/nation/la-na-youtube- Social network websites also face internal pressures to censor their also face internal pressures Social network websites 38. eventually won a motion to lift the order. Jerry Brito, Twitter 39. 40.was forced to resign from Congress after he was caught sending lewd Weiner 41. initially complied with the politicians’ demands but ultimately back- YouTube 37. 42. 2. to Engage in Censorship Internal Pressures M K IMES sorship itself, assumedly had a chilling effect on WikiLeaks-related had a chilling itself, assumedly sorship tweets. 704482704576072081788251562. to Stand Up for Its Users’ Rights? Now Censorship: Will Twitter Continue 10, 2011, at A13, 2, 2012), http://techland.time.com/2012/01/02/privacy-and-censorship-will-twitter-con- tinue-to-stand-up-for-its-users-rights-this-year/. through his Twitter account. photos of himself to a young woman Anthony Weiner Resigns T wsj.com/news/articles/SB10001424052702304563104576359970261287018. that such videos would be screened out. tracked and decided not to guarantee Brian Bennett, Controversy Over Photo nytimes.com/2011/06/17/opinion/17fri4.html; Devlin Barrett, nytimes.com/2011/06/17/opinion/17fri4.html; who called for YouTube to remove a long list of pro-terrorism videos. to remove a long list of who called for YouTube 2011/12/18/business/media/rules-to-limit-how-teachers-and-students-interact-online. html (noting that school districts are “imposing strict new guidelines that ban private conversations between teachers and their students on cellphones and online platforms like Facebook and Twitter”). resentative Anthony Weiner (who perhaps had good reason to fear social had good reason (who perhaps Anthony Weiner resentative network websites who led an effort to have Twitter block pro-Taliban accounts and pro-Taliban Twitter block an effort to have who led messages. terror-20101213. information about its WikiLeaks-related accounts, WikiLeaks-related its about information taken steps to limit the United States have also School districts around may engage in on that students and teachers the kinds of communications social network websites. \\jciprod01\productn\N\NMX\44-1\NMX104.txt unknown 2014] Spring Seq: 9 4-FEB-14 13:06 cial Online content or block particular users’ access. Certain forms of such censorship particular users’ access. Certain forms content or block ends, while only mini- legitimate and largely apolitical may serve several interests. First, social net- mally affecting legitimate First Amendment in order to prevent convicted work websites may censor communications C Y 33996-nmx_44-1 Sheet No. 70 Side A 02/06/2014 10:11:19 A 02/06/2014 70 Side Sheet No. 33996-nmx_44-1 33996-nmx_44-1 Sheet No. 70 Side B 02/06/2014 10:11:19 R M K C Y [Vol. 44 48 YouTube , Nov. 16, ]. Id. . J. 61, 62 (2009) T . Second, the Second, (May 5, 2009), § 1.03 (2011). S or to prevent or to 44 EV 43 IME ALL T Statement EDIA , , W (Apr. 26, 2011), http:// , M B.U. L. R Fourth, such censorship 46 OCIAL , 89 ACEBOOK S ACEBOOK F F , note 43. RADY ON G How Prisoners Harass Their Victims Using C supra M , , (June 9, 2010), http://www.youtube.com/t/terms. . Cyber Civil Rights R UBE , J T OU Statement NEW MEXICO LAW REVIEW RADY Y , Facebook Slammed by Porn Attack , G Such censorship does, of course, have the potential Such censorship (Nov. 21, 2011, 11:45 AM), http://www.cbsnews.com/8301- C 47 EWS D. M (Feb. 18, 2010), http://www.time.com/time/business/article/0,8599, ACEBOOK F Third, such censorship may be necessary to prevent harm to may be necessary to prevent Third, such censorship 45 IME AUL P T C.B.S. N Tom Loftus, Statement of Rights and Responsibilities Danielle Keats Citron, , , Terms of Service See Cf. See See Inmates Using Facebook, Cell Phones to Harass Their Victims, Accusers, See Inmates Using Facebook, Cell Phones However, social network websites might censor content for more network websites might censor content However, social The Downside of Friends: Facebook’s Hacking Problem The Downside of Friends: Facebook’s Hacking 47. 48. 44. Statement of Rights and Responsibilities, for example, asks users Facebook’s 46. 45. asks users not to post “pornographic” materials, or those which “in- Facebook 43. censorship of pornographic or violent materials may help to create and may help or violent materials of pornographic censorship and sensi- of as many ages acceptable to users an environment maintain serve as a fo- site’s ability to broadening the possible, thereby bilities as its value to and increasing and discourse, communications rum for public advertisers. certain users from harassing or intimidating other users. or intimidating from harassing certain users may be necessary to comply with copyright and trademark laws and laws to comply with copyright and trademark may be necessary governing publicity. 2011, at B4 (noting that Facebook suffered a “coordinated spam attack” that resulted 2011, at B4 (noting that Facebook suffered images on users’ news feeds); Claire Sud- in the posting of pornographic and violent dath, (arguing that civil rights lawsuits against speech on social network websites that at- (arguing that civil rights lawsuits against speech on social network websites that tacks “women, people of color, and members of other traditionally disadvantaged they classes” promote rather than undermine First Amendment values because and “help[] preserve vibrant online dialogue and promote a culture of political, social, economic equality”). http://content.time.com/time/business/article/0,8599,1895740,00.html (noting that in http://content.time.com/time/business/article/0,8599,1895740,00.html of 4,500 hacking and phishing attacks recent years, Facebook has suffered upwards per year). www.facebook.com/legal/terms?ref=pf [hereinafter www.facebook.com/legal/terms?ref=pf [hereinafter not to “bully, intimidate, or harass any user” or post content that is “hateful” or not to “bully, intimidate, or harass any “threatening.” to be abused or to be applied overinclusively, but one would think that a be applied overinclusively, but one to be abused or to to maintaining these kinds of censorship is necessary certain amount of the first place. attracts users to such sites in the atmosphere that 504083_162-57328739-504083/inmates-using-facebook-cell-phones-to-harass-their-vic- tims-accusers-witnesses/; Meg Handley, Facebook the website due to hacking and phishing attacks. the website due to 1964916,00.html. Additionally, convicted sex offenders are forbidden from using 1964916,00.html. Additionally, convicted Facebook. similarly censors pornographic and obscene content, and reserves the right to “at any similarly censors pornographic and obscene discretion, remove such content and/or termi- time, without prior notice and in its sole material in violation” of YouTube’s terms of nate a user’s account for submitting such service. troubling reasons. For example, they might discriminate against view- For example, they might discriminate troubling reasons. cite[ ] violence” or “contain[ ] nudity or graphic or gratuitous violence.” Witnesses criminals from preying on victims, accusers, or witnesses, or accusers, on victims, preying from criminals \\jciprod01\productn\N\NMX\44-1\NMX104.txt unknown130 Seq: 10 4-FEB-14 13:06 33996-nmx_44-1 Sheet No. 70 Side B 02/06/2014 10:11:19 B 02/06/2014 70 Side Sheet No. 33996-nmx_44-1 33996-nmx_44-1 Sheet No. 71 Side A 02/06/2014 10:11:19 ] 131 LAIN Side- P ECULAR , S , Virtual Liberty 1, 22 (2004) (argu- . EV N.Y.U. L. R , http://cyber.law.harvard.edu/is02/ , 79 ]; Molly Shaffer Van Houweling, 2043, 2093 (2004) [hereinafter Balkin, Digital Speech . EV Digital Speech and Democratic Culture: A Theory of Free- Digital Speech and Democratic Culture: Virtual Liberty: Freedom to Design and Freedom to Play in Virtual Liberty: Freedom to Design and Further, social network websites might censor con- might censor social network websites Further, MySpace Deletes Site for Atheists, Founder Says 50 . L. R (Feb. 2, 2008, 9:41 PM), http://www.secularstudents.org/node/ A V CENSORSHIP AND FREEDOM OF EXPRESSION OF FREEDOM AND CENSORSHIP MySpace Atheist and Agnostic Group Restored (Sort Of) , 90 LLIANCE Jack M. Balkin, Jack M. Balkin, filtering out viewpoints that are critical of their business that are critical out viewpoints filtering This incident serves as an example of how social network web- as an example of how social This incident serves A (Cleveland), Jan. 31, 2008, at E1. Myspace later restored the group without 49 51 Cf. Cf. Why should we care about censorship on social network websites? Why should we care about censorship 50. 51. David Briggs, 49. 3. on Users of Social Network The Potential Effects of Censorship M K EALER TUDENT ing that “businesses that control telecommunications networks will seek to limit forms ing that “businesses that control telecommunications that are inconsistent with their economic in- of participation and cultural innovation terests”) [hereinafter Balkin, readings/stateaction-shaffer-van-houweling.html (last visited Dec. 13, 2013) (expres- readings/stateaction-shaffer-van-houweling.html competition will prevent their subscrib- sing the fear that “ISPs who face only limited that competes with content offered by the ers from easily accessing Internet content that is critical of them”). ISP or its corporate affiliates, or content walks, Sewers, and State Action in Cyberspace Virtual Worlds tent in order to promote specific political agendas or in response to promote specific political agendas tent in order to Myspace twice from certain sets of users. For example, political pressure Group,” the first time “Atheist and Agnostic deleted its 35,000-member users who op- campaign from conservative Christian after an organized attack by Christian and the second time following an posed the group, renamed it “Jesus is the group’s material and hackers who deleted Love.” (arguing that owners of virtual worlds “have countervailing incentives to (1) censor (arguing that owners of virtual worlds the space; (2) censor speech it thinks will speech critical of how the owner is running and (3) censor speech that it believe custom- offend and hence scare customers away; owner ers will (fairly or unfairly) associate with the game owner or blame the game for allowing in the space”). 1942. sites can be used to impair individuals’ ability to freely express them- to impair individuals’ ability to sites can be used online. selves and associate Websites seems likely to occur sooner or later, After all, even if such censorship owned and exist primarily to earn a social network websites are privately practices or those of their partners, or that they think will offend and they think will partners, or that or those of their practices also suppress They might or business partners. certain users scare away the social net- be attributed to could wrongly that they believe statements itself. work website public comment, but banned several of the previously regular contributors from join- public comment, but banned several of the previously regular contributors from ing the group. dom of Expression for the Information Society D S points on matters of public concern that interfere with their business in- their business with interfere that public concern of on matters points terests, \\jciprod01\productn\N\NMX\44-1\NMX104.txt unknown 2014] Spring Seq: 11 4-FEB-14 13:06 C Y 33996-nmx_44-1 Sheet No. 71 Side A 02/06/2014 10:11:19 A 02/06/2014 71 Side Sheet No. 33996-nmx_44-1 33996-nmx_44-1 Sheet No. 71 Side B 02/06/2014 10:11:19 R R M K C Y OM- C Net- [Vol. 44 56 LARA C (May 20, 2010), which means 53 ANTA IME S T , Power Laws, Pareto Dis- , 21 , http://oz.stern.nyu.edu/io/ Further, users may hesi- 55 323, 334 (2005). HYSICS Network Effects . P ONTEMP C In other words, not all social network websites In other words, not all social network 54 note 52. NEW MEXICO LAW REVIEW 845, 850 (2005) (discussing the costs of switching between How Facebook is Redefining Privacy , 46 note 4. supra . L.J. Arun Sundararajan, Speech Showdowns at the Virtual Corral supra ECH T IGH Dan Fletcher, Baker, PUTER These network effects “often lead to an equilibrium in which a effects “often lead to an equilibrium These network See See generally See 52 & H There are three reasons that censorship of communications on social communications censorship of three reasons that There are 53. Sundararajan, 56. 52. 54. 55.an alternative social network website is available, the costs of switch- Even if Eric Goldman, one major relationship-focused social network website will typically dom- one major relationship-focused social inate in a given country. tate to provoke the ire of a particularly dominant relationship-focused tate to provoke the ire of a particularly due to a fear of losing access to social network website such as Facebook as well as the many digital me- an important means of communication, by that social network website. mentos of their social life stored http://content.time.com/time/magazine/article/0,9171,1990798,00.html (noting how http://content.time.com/time/magazine/article/0,9171,1990798,00.html (noting of the when the author’s account was deactivated by Facebook for violating the rules [his] site, he lost “all [his] photos, all [his] messages and all [his] status updates from of senior year of high school through the first two years of college,” erasing years “digital mementos” that he “still miss[es]”). are created equal, and being shut out of a dominant one could drastically are created equal, and being shut for a speaker’s message (perhaps reduce the size of the online audience nonexistent). to the point where it is practically competing virtual world websites). single firm or product dominates an industry segment,” single firm or product network.html (last visited Jan. 9, 2012). Websites are also generally characterized by network.html (last visited Jan. 9, 2012). effects means that “the top 20% of web power laws, which even aside from network M.E.J. Newman, sites get about two-thirds of all web hits.” tributions and Zipf’s Law may nevertheless be exceedingly high. ing from one social network website to another Cf. network websites should make us seriously worried. First, individual worried. First, make us seriously websites should network social net- on a dominant have been censored whose messages speakers their commu- venue for meaningful alternative may lack a work website the importance and network websites have diminished nications. Social speech, like public of traditional physical venues for the effectiveness such as traditional forms of political communication, parks, as well as shut out of a domi- At the same time, an individual pamphlets and fliers. alternative social website may have no comparable nant social network case because social to express their views. This is the network in which the more users a are characterized by network effects: network websites website becomes to its has, the more valuable that social network website users. profit. One could argue that any beneficial social effects of the sites are at of the sites effects social beneficial that any argue One could profit. for their owners. consideration most a subsidiary \\jciprod01\productn\N\NMX\44-1\NMX104.txt unknown132 Seq: 12 4-FEB-14 13:06 33996-nmx_44-1 Sheet No. 71 Side B 02/06/2014 10:11:19 B 02/06/2014 71 Side Sheet No. 33996-nmx_44-1 33996-nmx_44-1 Sheet No. 72 Side A 02/06/2014 10:11:19 R R 133 60 236 (2006). 2.0 This could make 59 ERSION 226 (2007) (“Networks have Facebook Again in Spotlight : V WAN ODE S note Facebook has even devel- 56. C , LACK supra B ESSIG HE L T , Fletcher, note 14, at 288. ALEB See AWRENCE T L supra , , June 8, 2011, at B1. See Social network websites and individuals who have ac- Social network websites and individuals . J. ICHOLAS 58 T N S CENSORSHIP AND FREEDOM OF EXPRESSION OF FREEDOM AND CENSORSHIP Nodal organization also makes it easier to identify individu- also makes it easier to identify Nodal organization ALL 57 IRKPATRICK ASSIM W K N , See See Third, political commitments on social network websites are often on social network websites Third, political commitments In sum, the threat of censorship on social network websites is real: In sum, the threat of censorship on Second, networks tend to organize themselves around certain partic- around certain organize themselves tend to Second, networks 58. 60. websites from the rest of the These characteristics distinguish social network 59. information on individual Social network websites typically possess personal 57. M K cooperation between social network websites and government or political cooperation between social network dangerous, as it raises the possibility of actors to censor content especially offline harassment or intimidation. online censorship translating into a natural tendency to organize themselves around an extremely concentrated archi- a natural tendency to organize themselves others barely so. . . . This seems to tecture: a few nodes are extremely connected; to most parts of the network will not be make networks more robust: random insults a poorly connected spot. But it also makes consequential since they are likely to hit what would happen if there is a problem networks more vulnerable. . . . Just consider with a major node.”). cess to them typically possess an extraordinary ability to personally iden- cess to them typically possess an extraordinary and viewpoints. tify supporters of particular messages very public. Saying something on a political subject in anything other something on a political subject very public. Saying necessarily involves on a social network website than a private message to other people—asexposing one’s views has noted, one commentator in a crowd and group on Facebook is unlike standing “[j]oining a protest do in terms of conve- at a protest. It may be easier to holding up a sign like signing a peti- more public commitment. It’s more nience, but it is a in a way that many others can tion with our name and address immediately see.” als belonging to a particular group, making it easier to harass them and a particular group, making it easier als belonging to their speech. prospectively censor internet, which is generally characterized by relative anonymity, decentralized distri- internet, which is generally characterized by relative anonymity, decentralized real- bution, multiple points of access, and no simple system for linking content to world people or places. social network websites face numerous pressures, both external and inter- social network websites face numerous users and groups to espouse cer- nal, to abridge the ability of particular and such censorship can easily tain political viewpoints on their websites, users at a very granular level. on Privacy oped technology that can recognize individual users’ faces in photographs posted on oped technology that can recognize individual users’ faces in photographs posted its website. Geoffrey A. Fowler & Christopher Lawton, ularly well-connected nodes. When the operator of a social network cen- of a social When the operator nodes. ularly well-connected a node, it representing such of a user or group communications sors the form of com- message or impact on a particular a devastating could have munication. work effects thus heighten the likelihood that censorial acts by social acts censorial that likelihood the thus heighten effects work on expression. chilling effects websites will have network \\jciprod01\productn\N\NMX\44-1\NMX104.txt unknown 2014] Spring Seq: 13 4-FEB-14 13:06 C Y 33996-nmx_44-1 Sheet No. 72 Side A 02/06/2014 10:11:19 A 02/06/2014 72 Side Sheet No. 33996-nmx_44-1 33996-nmx_44-1 Sheet No. 72 Side B 02/06/2014 10:11:19 M K C Y [Vol. 44 1371 (2011–12) . EV N.C. L. R , 90 Part I.B. Some might argue that this 61 Social Networks, Privacy, and Freedom of See supra Peter Swire, NEW MEXICO LAW REVIEW see ACTIONS OF SOCIAL NETWORK WEBSITES OF SOCIAL ACTIONS This Part will then explore how the public function exception to the This Part will then explore how the This Part begins by setting aside the threshold issue of state action This Part begins by setting aside If a governmental actor, such as Congress, a federal agency, or a actor, such as Congress, a federal If a governmental II. TO THE SCRUTINY FIRST AMENDMENT EXTENDING 61. will not take a stance on what level of scrutiny is appropriate for This Article (detailing several different possible approaches to the level of scrutiny to be applied to the regulation of privacy on social network websites). state action doctrine can allow First Amendment scrutiny to be extended state action doctrine can allow First to argue that protecting communications on social network websites to argue that protecting communications values, as communications on so- would promote core First Amendment invoke the three First Amendment cial network websites simultaneously Some might argue that con- freedoms of speech, press, and association. before the threshold state action ducting this First Amendment analysis that is precisely the point: to show analysis gets things backwards, but of the state action doctrine how a narrow and formalist construction that so vigorously em- could prevent the protection of communications body First Amendment values. assessing the constitutionality of content-based restrictions on communications on so- assessing the constitutionality of content-based topic to be addressed by future articles. cial network websites, leaving this fascinating may have several legitimate reasons for en- As established, social network websites gaging in content-based discrimination. lead to important real-world consequences. It is frightening to imagine to is frightening It consequences. real-world to important lead go largely websites could by these great power wielded that the unchecked. \\jciprod01\productn\N\NMX\44-1\NMX104.txt unknown134 Seq: 14 4-FEB-14 13:06 militates toward applying some form of intermediate scrutiny to content-based re- militates toward applying some form of intermediate scrutiny to content-based this strictions on communications on social network websites; others might argue that merely means that when strict scrutiny is applied it will be relatively easy to establish a dis- that such restrictions serve a compelling interest. For an example of what such cussion might look like, state government, were to directly censor content on a social network were to directly censor content state government, network website were to coerce an operator of a social website, or if they to First Amendment censorial act would be subject into doing so, this network website happens when an operator of a social scrutiny. But what that, in light of the on its own? This Part argues acts to censor content and political life, network websites in modern social importance of social on social network fact that protecting communications and in light of the courts can and core First Amendment values, websites would promote social network websites are state action should hold that censorial acts by subject to First Amendment scrutiny. Association: Data Protection vs. Data Empowerment 33996-nmx_44-1 Sheet No. 72 Side B 02/06/2014 10:11:19 B 02/06/2014 72 Side Sheet No. 33996-nmx_44-1 33996-nmx_44-1 Sheet No. 73 Side A 02/06/2014 10:11:19 135 may sup- 66 69 burning a military 63 Indeed, for similar 67 Reno v. ACLU and burning a large cross 65 68 wearing a black armband, 62 CENSORSHIP AND FREEDOM OF EXPRESSION OF FREEDOM AND CENSORSHIP burning an American flag, 64 Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288 (1984). Clark v. Cmty. for Creative Non-Violence, Dist., 393 U.S. 503 (1969). Tinker v. Des Moines Indep. Cmty. Sch. (1968). United States v. O’Brien, 391 U.S. 367 Texas v. Johnson, 491 U.S. 397 (1989). Virginia v. Black, 538 U.S. 343 (2003). See See See See See Further, the Supreme Court’s reasoning in Further, the Supreme Court’s reasoning Public communications by users of social network websites deserve by users of social network Public communications With respect to freedom of speech, the Court has read the First freedom of speech, the Court has With respect to 62. 63. 64. 65. 66. 67. Although few cases have yet addressed this issue, the Eastern District of Ar- 68. 2013). Bland v. Roberts, 730 F.3d 368, 385-86 (4th Cir. 69. 521 U.S. 844 (1997). 1. on Social Network Websites Freedom of Speech M K ports treating communications on social network websites as constitution- ports treating communications on trigger some form of First Amendment scrutiny. Since communications trigger some form of First Amendment traditional modes of speech such as on social network websites can mimic even more closely than these al- public speaking and pamphleteering they almost certainly merit protec- ready-protected expressive activities, Speech Clause. tion under the First Amendment’s draft card, reasons the Fourth Circuit recently held that clicking the “like” button on reasons the Fourth Circuit recently Facebook is protected speech. kansas recently found that an individual’s Facebook status updates were protected No. speech that touched on a matter of public concern. Mattingly v. Milligan, 4:11CV00215 JLH, 2011 WL 5184283, at *4 (E.D. Ark., Nov. 1, 2011). The Eastern consti- District of Virginia, however, concluded that “liking” a Facebook page was not state- tutionally protected speech because it did not involve the making of “actual ments.” Bland v. Roberts, 857 F. Supp. 2d 599, 604 (E.D. Va. 2012). First Amendment protection because they simultaneously invoke three of protection because they simultaneously First Amendment of speech, free- by the First Amendment: freedom the interests protected and freedom of association. dom of the press, to the conduct of social network websites. This Part will then show how a how then show Part will This websites. network of social conduct to the the public has protected under that the Court of the spaces consideration this Part will Then, bolsters this conclusion. further forum doctrine doctrine to the state action exception how the entwinement demonstrate by social net- of censorship certain instances protect against could also nevertheless why courts may Part will explain Lastly, this work websites. state actors. hold social network websites to be be disinclined to A. for First Amendment Protections The Basic Case \\jciprod01\productn\N\NMX\44-1\NMX104.txt unknown 2014] Spring Seq: 15 4-FEB-14 13:06 Amendment’s textual reference to “speech” quite broadly to cover a Amendment’s textual reference even such expressive nonverbal con- wide range of expressive activities; duct as sleeping in a park, C Y 33996-nmx_44-1 Sheet No. 73 Side A 02/06/2014 10:11:19 A 02/06/2014 73 Side Sheet No. 33996-nmx_44-1 33996-nmx_44-1 Sheet No. 73 Side B 02/06/2014 10:11:19 R M K 71 C Y ANIEL [Vol. 44 D note 70, at 13. see also ; supra they merit protec- , See id. 73 ARBER F 222 (3d ed. 2010). Court’s articulation of a broad rationale for pro- Court’s articulation of a broad rationale , the Court stated that there is “no basis for “no basis there is that Court stated , the Therefore, so long as communications on Therefore, so long as communications 72 Reno Reno NEW MEXICO LAW REVIEW MENDMENT Id. A , 558 U.S. at 326. IRST Although the Court’s references to these relics of an in- references to these relics of Although the Court’s F 70 HE T , Ariz. Free Enter. Club’s Freedom Club PAC v. Bennett, 131 S. Ct. 2806, Ariz. Free Enter. Club’s Freedom Club at 870. Despite the See Citizens United Id. Public communications on social network websites are also similar Public communications on social ARBER 73. to violence, libel, ob- Some categories of unprotected speech are incitement 71. 72. 70. 2. Network Websites Freedom of the Press on Social for each category, the Court has created rules detailing the boundaries of permissible tion under the Speech Clause. to traditional publishing and deserve similar protection under the Press to traditional publishing and deserve a public communication on a so- Clause of the First Amendment. Issuing dissemination of a written message to cial network website involves the much like the publication of several different individuals simultaneously, social network websites do not fall within a category of speech that is social network websites do not fall Amendment, traditionally unprotected by the First scenity, fighting words, and commercial advertising. 2816–17 558 U.S. 310, 339–40 (2011); Citizens United v. Fed. Election Comm’n, (2010). ternet era long since passed might now strike us as rather quaint, the passed might now strike us ternet era long since on social applies with equal force to communications Court’s reasoning public statements; like which, like chat rooms, involve network websites, same time; and like reach many individuals at the mail exploders, can to those individuals messages broadcast primarily newsgroups, involve on which it is to the speaker through the network who are connected network websites political communications on social published. Further, protection, as especially strong First Amendment also appear to merit protections, at the heart of the First Amendment’s political speech lies tecting internet speech, the Court took a contextual approach to internet speech that tecting internet speech, the Court took less restrictive alternatives were available as carefully considered the extent to which at issue in the case. well as the scope of the statutory language A. F Speech falling within these categories is only unprotected to some degree, of course— government regulation. and the Court has “decline[d] to draw . . . constitutional lines based on and the Court has “decline[d] to used to disseminate political speech the particular media or technology from a particular speaker.” ally protected speech. In speech. ally protected be applied that should Amendment scrutiny the level of First qualifying person with of chat rooms, any the use since “[t]hrough to [the internet],” farther a voice that resonates a town crier with line can become a phone use of Web “[t]hrough the and since from any soapbox,” than it could can become a same individual newsgroups, the exploders, and pages, mail pamphleteer.” \\jciprod01\productn\N\NMX\44-1\NMX104.txt unknown136 Seq: 16 4-FEB-14 13:06 33996-nmx_44-1 Sheet No. 73 Side B 02/06/2014 10:11:19 B 02/06/2014 73 Side Sheet No. 33996-nmx_44-1 33996-nmx_44-1 Sheet No. 74 Side A 02/06/2014 10:11:19 R 137 dis- 75 The Jaycees failed to 79 Roberts v. United States Jaycees Roberts v. United Additionally, families are characterized 77 note 207. The enforcement against publish- 70, at Cohen v. Cowles Media Co., 501 U.S. 663, 669–70 supra , See Thus, “[d]etermining the limits of state authority Thus, “[d]etermining the limits of 78 ARBER 76 F CENSORSHIP AND FREEDOM OF EXPRESSION OF FREEDOM AND CENSORSHIP should therefore also extend to some degree to users of social to some degree also extend should therefore 74 at 619–20. at 620. at 617–18. Id. Id. Id. Id. A strong case can also be made that the First Amendment right to also be made that the First Amendment A strong case can The “personal affiliations that exemplify” this intrinsic feature of the The “personal affiliations that exemplify” 79. 78. 77. 74. the Press Clause specifies that publishers may not be singled out For example, 75. 468 U.S. 609 (1984). 76. 3. on Social Network Websites Freedom of Association M K tinguished two different features of the First Amendment right to different features of the First tinguished two feature. The “in- feature and the “instrumental” associate: the “intrinsic” that “choices to enter the right to associate establishes trinsic” feature of must be secured certain intimate human relationships into and maintain role of such relation- by the State because of the against undue intrusion freedom that is central to our consti- ships in safeguarding the individual tutional scheme.” by “relative smallness, a high degree of selectivity in decisions to begin by “relative smallness, a high degree from others in critical aspects and maintain the affiliation, and seclusion of the relationship.” over an individual’s freedom to enter into a particular association there- over an individual’s freedom to enter assessment of where that relationship’s fore unavoidably entails a careful a spectrum from the most intimate to objective characteristics locate it on attachments.” the most attenuated of personal network websites when they are issuing public communications. are issuing public websites when they network associate protects public communications on social network websites. Jus- public communications on social associate protects opinion in tice Brennan’s majority right to associate are those “that attend the creation and sustenance of a right to associate are those “that attend and commitments to the neces- family,” which involve “deep attachments one shares not only a special com- sarily few other individuals with whom and beliefs but also distinctively munity of thoughts, experiences, personal aspects of one’s life.” for special burdens. ers of a general law that burdens speech is not subject to stricter First Amendment ers of a general law that burdens speech other scrutiny than that which would be applied to the enforcement of the law against persons or organizations. a free newspaper or newsletter. Public communications on social network on social communications Public or newsletter. newspaper a free and other role as newspapers the same social also often serve websites up-to-date on keeping readers media, namely traditional print forms of for limited protections The Press Clause’s and politics. current events publishers \\jciprod01\productn\N\NMX\44-1\NMX104.txt unknown 2014] Spring Seq: 17 4-FEB-14 13:06 (1991). C Y 33996-nmx_44-1 Sheet No. 74 Side A 02/06/2014 10:11:19 A 02/06/2014 74 Side Sheet No. 33996-nmx_44-1 33996-nmx_44-1 Sheet No. 74 Side B 02/06/2014 10:11:19 M K C Y 80 [Vol. 44 This right 82 83 In these cases, the Court has recognized a cases, the Court In these 81 NEW MEXICO LAW REVIEW at 622. at 618. at 620–21. Id. Id. Id. Id. Where communications on social network websites do not represent Where communications on social network The “instrumental” feature of the right to associate, meanwhile, ex- associate, meanwhile, of the right to feature The “instrumental” invoke both of on social network websites can Communications 83. 82. 81. 80. was “plainly implicated” in the Jaycees’ case. was “plainly implicated” right to “associate with others in pursuit of a wide variety of political, with others in pursuit of a wide right to “associate ends.” educational, religious, and cultural social, economic, the sharing of private thoughts or musings with one’s intimate friends or the sharing of private thoughts or they might take the form of supporting less-than-intimate acquaintances, or religious group, or of mobilizing or the aims of a particular political a political group might try to coordinating group action. For instance, its Facebook page, and it might rally or mobilize its supporters through messages. Members of the group communicate with them through private group on the group’s Facebook page, might also express support for the group’s cause by posting supportive or they might try to advance the that the messages show up in other statements on their timeline, such in users’ news feeds. Such communications would differ from pure speech that they involve coordinated action amongst numerous group members ists “for the purpose of engaging in those activities protected by the First protected in those activities the purpose of engaging ists “for Amendment—speech, of grievances, for the redress petition assembly, of religion.” and the exercise to the intrinsic fea- the right to associate. With respect these features of instances such com- to associate, it is clear that in some ture of the right user can attest is the sharing (or, as any Facebook munications represent beliefs, and the of thoughts, experiences, often the case, over-sharing) select group of other aspects of one’s life with a distinctively personal an individual chooses the individual is connected. When users with whom their friend on Facebook, the former is to invite another individual to be them through the sharing of public or inviting the latter to associate with timeline posts, private messages, semi-public messages, such as Facebook such a relationship is surely more im- photos, music, or videos. Though at the far end of Justice Brennan’s personal than the familial relations greater degree of intimacy spectrum, it certainly involves a significantly like the Jaycees. Some commu- than membership in a large organization therefore display the distinctive nications on social network websites that are protected by the intrinsic fea- characteristics of those activities ture of the right to associate. qualify because membership in their organization was, for the most part, for the most was, their organization in membership because qualify was largely impersonal. organization and their national unselective, \\jciprod01\productn\N\NMX\44-1\NMX104.txt unknown138 Seq: 18 4-FEB-14 13:06 33996-nmx_44-1 Sheet No. 74 Side B 02/06/2014 10:11:19 B 02/06/2014 74 Side Sheet No. 33996-nmx_44-1 33996-nmx_44-1 Sheet No. 75 Side A 02/06/2014 10:11:19 86 139 right to associ- their 519–21 (4th ed. 2011). conduct, like that of social AW 85 L Thus, some individuals’ messages on individuals’ Thus, some 84 ONSTITUTIONAL C , Rumsfeld v. Forum For Academic Institutional Rights, Inc., 547 Rumsfeld v. Forum For Academic Institutional CENSORSHIP AND FREEDOM OF EXPRESSION OF FREEDOM AND CENSORSHIP Cf. HEMERINSKY C RWIN E The state action doctrine provides that only the acts of the govern- The state action doctrine provides Public communications on social networks can therefore be seen as on social networks can therefore Public communications 84. of social network websites could try to argue that being forced to Operators 85. distinction (which con- This article takes the stance that the “private”/“public” 86. M K network websites, beyond the purview of the Constitution’s protections. network websites, beyond the purview ment or those acting on its behalf are subject to constitutional scrutiny, ment or those acting on its behalf which ordinarily leaves nongovernmental simultaneously invoking three of the interests protected by the First three of the interests protected simultaneously invoking press, and freedom of of speech, freedom of the Amendment: freedom action, then, the case aside the threshold issue of state association. Setting communications ap- Amendment protections to such for extending First such communications to be quite strong. Despite this, pears at first glance network website oper- unless censorial acts by social will not be protected which this article will of as state action, an issue to ators can be conceived now turn. B. The State Action Doctrine social network websites may be protected by the intrinsic feature of the by the intrinsic be protected websites may social network to associ- feature of the right the instrumental whereas right to associate, of group as speech in support by groups, as well messages ate may protect activities. serve as a forum for viewpoints with which they disagree violates serve as a forum for viewpoints with which in support of a particular goal or set of goals. In this sense, these commu- these this sense, goals. In or set of goal a particular of in support to associate, of the right instrumental feature would invoke the nications did. Jaycees’ message just as the \\jciprod01\productn\N\NMX\44-1\NMX104.txt unknown 2014] Spring Seq: 19 4-FEB-14 13:06 ate, citing such cases as Hurley v. Irish-American Gay, Lesbian, and Bisexual Group, ate, citing such cases as Hurley v. Irish-American America v. Dale, 530 U.S. 640 (2000). Com- 515 U.S. 557 (1995), and Boy Scouts of are easily distinguishable from those that take munications on social network websites that are made by the leaders of an organiza- place in the context of a parade or those for the message of the operator tion, in that few would mistake such communications reader would almost surely conclude of the social network website itself; a reasonable viewpoint of the speaker only. Users of social that such communications represent the intuitively analogous to “outsiders” than to network websites appear much more [a] member[those who come onto the site to “become its “expressive associa- ]” of order to promote its messages and its over- tion,” that is, who come onto the site in arching mission. recruiter’s presence on a law school campus U.S. 47 (2006) (holding that a military does not violate the law school’s right to associate). large) cerns the openness and accessibility of a given thing or space to the public at and the “governmental”/“nongovernmental” distinction (which concerns the owner- it ship of a space or the identity of an actor) are separate and distinct concepts, though bears mentioning that the imprecise use of these terms has caused much confusion regarding the state action doctrine. C Y 33996-nmx_44-1 Sheet No. 75 Side A 02/06/2014 10:11:19 A 02/06/2014 75 Side Sheet No. 33996-nmx_44-1 33996-nmx_44-1 Sheet No. 75 Side B 02/06/2014 10:11:19 R R R R , M K C Y Vir- it is 91 87 [Vol. 44 , 1543 (6th ed. 2009). 1248, 1310–11 (ar- (2010) . AW EV L Cyberspace and the State Action Although from the 1940s to from the 1940s Although 49 (2009) (noting the “near-com- 89 . L. R . Developments in the Law—State Ac- Thus, while the state action doc- Thus, while the state United States v. Cruikshank United States ARV and “a central principle of consti- and “a central principle 90 . H 92 REEDOM F ONSTITUTIONAL note 86, at 530 (describing the development of note 86, at 530 (describing the development , 123 note 86, at 523–25 (arguing that the Fourteenth the note 86, at 523–25that (arguing C , . stating that there is an “essential dichotomy . . . stating that there is an “essential dichotomy supra IRTUAL supra , ), the state action doctrine may render their ), the state action , V 94 , note 86, at 521. note 91, at 1305 (noting that on the internet “one uses NEW MEXICO LAW REVIEW TONE ET AL The Civil Rights Cases The Civil supra supra , 1263, 1267 (2000) (“the state action doctrine rests on the often 1263, 1267 (2000) (“the state action doctrine . UNZIATO HEMERINSKY R. S HEMERINSKY EV N and C C 88 93 , , AW N . L. R D EOFFREY HEMERINSKY see also OLO G C 419 U.S. 345, 349 (1974) ( See See, e.g. As social network websites are privately owned (as are nearly all websites are privately owned (as As social network 93. 92. 94. 87.542, 554 (1875) (“The fourteenth amendment prohibits a State from 92 U.S. 88. 313, 318 (1879) (“The provisions of the Fourteenth Amendment. . .all 100 U.S. 89. 3, 13 (1883) (“[T]he prohibitions of the [Fourteenth Amendment] are 109 U.S. 90. 91. Jackson v. Metropolitan Edison Co Jackson v. Metropolitan U. C ginia v. Rives now a constitutional “commonplace” now a constitutional the 1960s the Court expanded the applicability of the Constitution to of the Constitution the applicability the Court expanded the 1960s of the expansive interpretation by adopting an conduct nongovernmental racial desegregation, in part to aid the process of state action doctrine, through such cases narrowing the doctrine ever since the Court has been as trine has been roundly and justly criticized on a number of grounds, and justly criticized on a number trine has been roundly tutional law.” guing that the Court’s focus on who owns the space in which speech takes place as guing that the Court’s focus on who owns the space in which speech takes place opposed to the character and nature of that space has the perverse result of insulating spaces widely perceived to be “public” in nature from constitutional scrutiny). plete shift in cyberspace from public to private ownership of forums and conduits for plete shift in cyberspace from public to private ownership of forums and conduits expression”); Berman, between deprivation by the State, subject to [constitutional] scrutiny under its provi- between deprivation by the State, subject which the Fourteenth Amendment offers no sions, and private conduct . . . against shield”); illusory hope that we can draw a clear and coherent line between what constitutes illusory hope that we can draw a clear Note, public as opposed to private behavior”); tion and the Public/Private Distinction online forums for speech online forums for depriving any person of life, liberty, or property, without due process of law; but this depriving any person of life, liberty, or as against another.”). adds nothing to the rights of one citizen and not to any action of private have reference to State action exclusively, individuals.”). state authority.”). against state laws and acts done under the state action doctrine). to government inaction in the face of private Amendment might be read as applying to government action itself, and that the state rights violations as forcefully as it does because it permits the violation of action doctrine “sacrifices individual freedom or chilled just as much through private sanc- rights” and because “[s]peech can be lost Berman, tions as through public ones”); Paul Schiff Constitutional Norms to ‘Private’ Regulation Debate: The Cultural Value of Applying 71 The state action doctrine has a long constitutional pedigree, with its ori- with pedigree, a long constitutional has doctrine state action The of the passage on the heels that followed Court decisions gins in Supreme such as Amendment, of the Fourteenth \\jciprod01\productn\N\NMX\44-1\NMX104.txt unknown140 Seq: 20 4-FEB-14 13:06 33996-nmx_44-1 Sheet No. 75 Side B 02/06/2014 10:11:19 B 02/06/2014 75 Side Sheet No. 33996-nmx_44-1 33996-nmx_44-1 Sheet No. 76 Side A 02/06/2014 10:11:19 R R R R R 141 . & See 98 CI supra , . L.J. S LB Some might UNZIATO A 95 N One might also , , 21 97 See, e.g. Don’t Be Evil: The Fourth Amendment in the Don’t Be Evil: The Fourth Amendment in note 60, at 245–47. note 94, at 102 (arguing that internet service providers note 94, at 102 (arguing that internet service supra , note 91, at 1307 & n.171 (arguing that “applying the Con- supra , ESSIG supra L CENSORSHIP AND FREEDOM OF EXPRESSION OF FREEDOM AND CENSORSHIP See UNZIATO note 61. N Berman, Cf. Cf. as well as their expressive marketing activities. as well as their supra 153, 186 (2011) (“[I]n today’s dynamic world new technologies are replacing 153, 186 (2011) (“[I]n today’s dynamic These private property-based arguments are ultimately unconvinc- arguments are ultimately These private property-based 96 . 96. 98. 97.even if the First Amendment is Lawrence Lessig, however, has suggested that 95. believe that the state action doctrine would serve to insulate Most scholars M K ECH welcome this situation. After all, subjecting social network website own- social network all, subjecting this situation. After welcome restrict their necessarily scrutiny would to constitutional ers’ actions website from to protect the with their ability rights, interfering property harm prefer leaving decisions about what communications are permissible on about what communications prefer leaving decisions which generally have to the websites themselves, social network websites rather than leaving announced policies on this issue, clear and publicly tests by courts. the ad hoc application of balancing such decisions to note 94, at 114; Andrew William Bagley, T ing in the case of social network websites. Subjecting social network web- social network websites. Subjecting ing in the case of is crucial given their of constitutional scrutiny sites to some degree their unique charac- social and political life, importance to contemporary For one, social incentives for engaging in censorship. teristics, and their property given their openness and network websites are not truly private Further, the fact that network ef- the role they now play in our society. dominant social network website of fects often cause there to be only one network websites to have natural mo- a given type causes certain social justify restricting their private property nopoly power, which may further common telecommunications carriers rights (as natural monopolists like to their public functions). Al- are often subject to regulations relating traditional functions, such as mail delivery, with expansive communication platforms traditional functions, such as mail delivery, of exclusive state functions.”). One scholar not contemplated by traditional notions true of social network websites as well. has gone so far as to suggest this may be Swire, should not be conceptualized as state actors because of their unique needs with re- should not be conceptualized as state actors spect to protecting their property from harm). those applied to virtual spaces, regulations of pornography and spam messages in in spaces are likely to be held constitutional given the long history of such regulation physical spaces. being stitution more broadly could result in a far greater number of legal disputes resolved through the ad hoc application of a vague balancing calculus”). privately-owned browsers to access privately-owned online service providers, with privately-owned browsers to access privately-owned routers to privately-owned web sites”). messages traveling over privately-owned scrutiny. internet speech regulators from constitutional Papers and Effects Age of Google, National Security, and Digital actions immune to First Amendment scrutiny, despite the fact that they the fact despite scrutiny, Amendment to First immune actions to censor have more power spaces, and they senses public are in many actors. many governmental than public communications \\jciprod01\productn\N\NMX\44-1\NMX104.txt unknown 2014] Spring Seq: 21 4-FEB-14 13:06 C Y 33996-nmx_44-1 Sheet No. 76 Side A 02/06/2014 10:11:19 A 02/06/2014 76 Side Sheet No. 33996-nmx_44-1 33996-nmx_44-1 Sheet No. 76 Side B 02/06/2014 10:11:19 M K C Y 129, Al- . 99 [Vol. 44 EV on the 104 , 318 F.3d at . L. R E M Green , 60 103 The Corporation as Sovereign NEW MEXICO LAW REVIEW 101 these cases can be grouped into two exceptions to the be grouped into two exceptions these cases can The public function exception serves as a check against the The public function exception serves 100 102 Allison D. Garrett, See Courts have thus far been hostile to claims that the acts of privately Courts have thus far been hostile Courts can and should extend First Amendment scrutiny to the acts scrutiny to First Amendment and should extend Courts can “the exercise by a private en- Under the public function exception, 99. assumes that the Bill of Rights is not merely a limit on govern- This argument 1. Exception The Public Function 104. Cir. 2003); Noah v. AOL Green v. America Online, 318 F.3d 465, 472 (3rd 100. v. Leesville Concrete Co., 500 U.S. 614, 632 (1991). Edmonson 101. exception is also sometimes referred to as the “nexus” The entwinement 102. (1974) (citations omitted). Jackson v. Metro. Edison Co., 419 U.S. 345, 352 103. though the Court has admitted that the “cases deciding when private ac- has admitted that the “cases deciding though the Court been a model of that of the state have not tion might be deemed consistency,” 130–32, 141–63 companies now “act similarly to tradi- (2008) (arguing that private tional nation–states power, establish in some ways. They have tremendous economic in- security forces, engage in diplomatic, adjudicatory and ‘legislative’ activities, and fluence monetary policy.”). Time Warner, Inc., 261 F. Supp. 2d 532, 546 (E.D. Va. 2003) (citing state action doctrine: the “public function exception” and the “entwine- the “public function exception” state action doctrine: ment exception.” abuse of power by private companies and corporations, which have in abuse of power by private companies powers and duties that have histori- recent years assumed many of the cally been the province of the state. owned internet companies constitute state action under the public func- owned internet companies constitute and two federal district courts have re- tion exception. The Third Circuit (AOL) is a state actor jected the claim that America Online ment behavior, but also serves to affirmatively promote and effectuate our constitu- ment behavior, but also serves to affirmatively social network websites can be held to be tional values. This article also assumes that while at the same time exempting them state actors when engaging in censorship, the First Amendment context. This is, of from constitutional scrutiny outside of and exploring its defensibility is beyond the course, a major assumption to make, scope of this article. exception. of social network websites by invoking one of the exceptions to the state websites by invoking one of the of social network actors can be under which acts by nongovernmental action doctrine, purposes. to state action for constitutional found to be equivalent though social network websites must retain a great degree of control over of control degree a great must retain websites network social though of apply- argues in favor consideration merely property, this their private network acts by social of scrutiny to censorial deferential level ing a more websites—notconstitutional scrutiny them from for exempting altogether. \\jciprod01\productn\N\NMX\44-1\NMX104.txt unknown142 Seq: 22 4-FEB-14 13:06 tity of powers traditionally exclusively reserved to the State” constitutes tity of powers traditionally exclusively state action. 33996-nmx_44-1 Sheet No. 76 Side B 02/06/2014 10:11:19 B 02/06/2014 76 Side Sheet No. 33996-nmx_44-1 33996-nmx_44-1 Sheet No. 77 Side A 02/06/2014 10:11:19 143 However, social 107 Federal district courts have Federal 105 prerogative, of the State,” and of the State,” prerogative, exclusive , a Jehovah’s Witness came onto the prem- , a Jehovah’s Witness came onto the Marsh 110 , 948 F. Supp at 441–42. In 108 . Marsh v. Alabama, 326 U.S. 501 (1946). They have also rejected the claim that a private domain They have also rejected CENSORSHIP AND FREEDOM OF EXPRESSION OF FREEDOM AND CENSORSHIP which implies that the company town had the power to which implies that the company 106 a. Generally The Public Function Exception 111 at 503–504. Cyber Promotions, Inc. v. America Online, Inc., 948 F. Supp. 436, 437 Cyber Promotions, Inc. v. America Online, The Court reversed the conviction, holding that the private The Court reversed the conviction, Island Online, Inc. v. Network Solutions, Inc., 119 F. Supp. 2d 289, 306 at 503. at 509. 109 Id. Id. See id. See See generally Cyber Promotions The public function exception originates from the seminal case of The public function exception originates The Court thus effectively treated the company-owned town like a The Court thus effectively treated see also 111. 109. 110. 106. C-09-03007 RMW, 2009 WL Estavillo v. Sony Computer Entm’t Am., No. 107. 108. 105. M K network websites differ considerably from the websites and networks that differ considerably from the websites network websites much more closely considered. Social network websites these courts have chosen to protect in spaces the Supreme Court has resemble the public doctrine jurispru- exception and public forum both its public function article will now consider in turn. dence, which this Marsh v. Alabama also rejected the claim that Sony’s PlayStation 3 Network is a state actor 3 Network is Sony’s PlayStation the claim that also rejected to interact forum for people solely as a that it “serves on the grounds for entertain- contractual terms” and exists primarily subject to specific ment purposes. ises of a company–owned town and distributed religious literature against leading to a criminal conviction for the wishes of the town’s management, trespass. name registrant is a state actor on the grounds that both “the Internet” a state actor on the grounds that name registrant is “by no stretch of the of Internet domain names” are and “registration and exclusive public functions. imagination” traditional property rights of the company did not “justify the State’s permitting a property rights of the company did of citizens so as to restrict their fun- corporation to govern a community damental liberties. . . .” state actor. It based this holding on three rationales. First, the company- state actor. It based this holding on from any other municipality “ex- owned town was essentially no different the property belong[ed] to a private cept [for] the fact that the title to corporation,” 472); grounds that AOL “exercises absolutely no powers which are in any way are in which no powers absolutely AOL “exercises that grounds the let alone the prerogative, which allow companies many private online “merely one of AOL is the Internet. . . .” access to [their] members \\jciprod01\productn\N\NMX\44-1\NMX104.txt unknown 2014] Spring Seq: 23 4-FEB-14 13:06 3072887, at *1–2 (N.D. Cal. Sept. 22, 2009). (E.D.N.Y. 2000). (E.D. Pa. 1996). C Y 33996-nmx_44-1 Sheet No. 77 Side A 02/06/2014 10:11:19 A 02/06/2014 77 Side Sheet No. 33996-nmx_44-1 33996-nmx_44-1 Sheet No. 77 Side B 02/06/2014 10:11:19 R R R M K C Y Marsh [Vol. 44 is con- But just 117 Marsh 225 (2007) (arguing for Second, because the because Second, Third, holding the com- Third, holding 112 . L. 113 ONST . J. C A The Ultimate Company Town: Wading in note 94, at 52 (arguing that under U. P supra , , 10 In combination, these three rationales suggest these three In combination, note 92, at 1597. Court’s rationales for the public function excep- Court’s rationales UNZIATO Jason S. Zack, NEW MEXICO LAW REVIEW 114 N Cf. supra , . Court’s reasoning to Second Life, an online virtual world). Marsh , 326 U.S. at 503–506 for his advantage, (“The more an owner, see also text accompanying notes 14–24. Marsh at 508 (noting that “[m]any people in the United States live in com- at 508 (noting that “[m]any people in In sum, social network websites may be privately owned, but In sum, social network websites Third, with respect to self-governance, in our country social to self-governance, in our country Third, with respect 116 TONE ET AL 115 S See Marsh See id. See supra Each of the One could attempt to counter these arguments by pointing out that One could attempt to counter these 117. websites do provide An argument could be made that some social network 112. 113. 114. 115. Such terms of service are admittedly speech-restricting. 116. town and its shopping district were accessible to and freely used by the to and freely were accessible its shopping district town and function serving a public was undoubtedly general, the town public in by the state. traditionally exercised akin to that pany-owned town constitutionally accountable would foster better demo- would foster accountable town constitutionally pany-owned cratic self-governance. extending the tion applies to social network websites. First, with respect to the power to network websites. First, with respect tion applies to social more power to curb social network websites enjoy undermine freedom, in Alabama—if than small company-owned towns individual freedom it of over 800 million could severely curb the ability wanted to, Facebook their friends and ac- particular political messages to users to espouse social network web- with respect to openness, most quaintances. Second, by their terms of almost anyone willing to abide sites are open to service. that the public function exception is rather expansive in scope. exception is rather expansive that the public function social network websites do not perform core government functions like social network websites do not perform or police departments. operating public thoroughfares, parks, they are sufficiently public, at least in the sense with which they are sufficiently public, at least state actors, and as they do some of the cerned, in nature to be treated as be limited in some of the ways in things that governments do, they should which governments are limited. network websites are important tools for political communication and network websites are important between the government and mobilization, as well as for communication citizens. such services, as they may maintain public infrastructure, provide for security, and such services, as they may maintain public infrastructure, provide for security, enforce property rights. opens up his property for use by the public in general, the more do his rights become opens up his property for use by the public rights of those who use it.”). circumscribed by the statutory and constitutional citizens they must be informed,” and that pany-owned towns,” that “[t]o act as good be properly informed their information must therefore “[i]n order to enable them to be uncensored”); “the dispositive inquiry is whether the speech regulations by the powerful regulator at “the dispositive inquiry is whether the speech of communication essential for individuals to issue interfere with the open channels participate meaningfully in democratic self-government.”). undermine freedom as effectively as the state. as as effectively freedom undermine \\jciprod01\productn\N\NMX\44-1\NMX104.txt unknown144 Seq: 24 4-FEB-14 13:06 the Digital Marsh of Second Life 33996-nmx_44-1 Sheet No. 77 Side B 02/06/2014 10:11:19 B 02/06/2014 77 Side Sheet No. 33996-nmx_44-1 33996-nmx_44-1 Sheet No. 78 Side A 02/06/2014 10:11:19 R R 125 145 , the “it was Gulf Jackson prerogative of trespass prose- In addition, al- Marsh 122 state’s exclusive the Court held that the the Court held that 120 Thus, under Hudgens v. Nat’l Labor Re- 121 It would seem rather odd to seem rather odd It would Lloyd Corp. Ltd. v. Tanner remains persuasive, it appears in 118 note 86, at 534. supra Marsh , note 49 (arguing that in Therefore, one can persuasively claim Therefore, one can 119 supra Logan Valley Amalgamated Food Emps. Union Local 590 v. Amalgamated Food Emps. Union ’s scope has been significantly narrowed by sub- ’s scope has been Rendell–Baker v. Kohn, 457 U.S. 830, 842 (1982) (reaf- HEMERINSKY C reasoning that shopping centers are open to the reasoning that shopping centers , 123 , Marsh see also , the acts of social network websites to censor speech , the acts of social Jackson v. Metro. Edison Co. Jackson v. Metro. See, e.g. CENSORSHIP AND FREEDOM OF EXPRESSION OF FREEDOM AND CENSORSHIP While the rationale for at 317–19. at 352. at 357; Marsh 126 . Hudgens v. NLRB, 424 U.S. 507, 518–21 (1976). Shaffer Van Houweling, See id. See id. 419 U.S. 345 (1974). See See See id. Id. , it appears that it was not Gulf Shipbuilding’s maintenance of the maintenance Gulf Shipbuilding’s that it was not , it appears Nevertheless, the Court quickly reversed course in the Court quickly reversed course “exclusively” provided for by the State. “exclusively” provided 124 125. owned shopping center 407 U.S. 551, 570 (1968) (holding that a privately 123. owned shopping center 391 U.S. 308, 325 (1968) (holding that a privately 124. 122. 126. 118. 121. 119. 120. M K though the Court extended the public function exception to privately though the Court extended the owned shopping centers in Logan Valley Plaza exception only encompasses public functions that are both “traditionally” public functions that are exception only encompasses and focus a First Amendment analysis on municipal services that have noth- services that analysis on municipal Amendment focus a First outcome in a case and one would hope that the ing to do with speech, “controlled by the ab- of speech claim would not be involving a freedom cyberspace.” sence of sewers in actions of a private utility that enjoys a state-granted monopoly do not utility that enjoys a state-granted actions of a private governments have historically constitute state action, because although also commonly exist. run utilities, privately run utilities sequent cases. In sequent cases. In that under function exception. as state action under the public can be construed public and functionally the same as the commercial center of a municipal- public and functionally the same as ity, could exclude anti–Vietnam War protesters from distributing literature on its prem- consti- ises). Some commentators believe the case is difficult to defend as a matter of tutional doctrine. the State.’” (citations omitted)). could not exclude striking laborers from picketing a store within the shopping center). firming the importance of exclusivity to the public function exception, and stating that firming the importance of exclusivity to performs a public function but rather the question is not just whether a party ‘traditionally the “whether the function performed has been lations Bd cution problematic”). and then formally overruled Shipbuilding’s control of sidewalks—not sewers—that made the because the performance of such functions is sufficient to satisfy the pub- to satisfy is sufficient functions of such the performance because to do so. In it is necessary not mean that exception does lic function Marsh its control of but rather so troubled the Court, system that town’s sewer sidewalks. speak on the town’s who could \\jciprod01\productn\N\NMX\44-1\NMX104.txt unknown 2014] Spring Seq: 25 4-FEB-14 13:06 C Y 33996-nmx_44-1 Sheet No. 78 Side A 02/06/2014 10:11:19 A 02/06/2014 78 Side Sheet No. 33996-nmx_44-1 33996-nmx_44-1 Sheet No. 78 Side B 02/06/2014 10:11:19 R M K C Y [Vol. 44 operating 127 line of cases, note 43. supra , for that purpose, and that for that purpose, Logan Valley In other words, social network In other words, social Statement , 131 designated ACEBOOK F that is 130 purpose of serving as a forum for public com- purpose of serving NEW MEXICO LAW REVIEW 129 primary to the public at large. or providing for “education, fire and police protection, fire and police for “education, or providing , 326 U.S. at 506 (“The more an owner, for his advantage, opens up 128 Marsh v. Alabama, 326 U.S. 501, 506 (1946). Marsh v. Alabama, 326 U.S. 501, 506 Evans v. Newton, 382 U.S. 296, 301–302 (1966) (operating a previously 163–64 Flagg Bros., Inc. v. Brooks, 436 U.S. 149, (1978) (implying that the See See See See Marsh Even this more narrow conception of the public function exception of the more narrow conception Even this completely open 127. 128. 129. 130. on social network websites are not necessarily fully public, Communications 131. a public park, a public websites are like public squares and meeting places—indeed,websites are like one might the town squares of that social network websites are go so far as to say the twenty-first century—anddesignated for they are both designed and the shopping malls in the this purpose, unlike and commercial activ- foremost dedicated to shopping which are first and forum for speech is merely incidental ity, and whose ability to serve as a a building that houses multiple retailers to the design features required by to provide a pleasurable window- in a relatively small space and seeks public squares and meeting places shopping experience. Since managing been done by the government, social is something that has traditionally a public function that has traditionally network websites therefore serve been the province of the state. is and tax collection.” can still permit social network websites to be viewed as state actors. So- network websites to be viewed can still permit social function: providing a do serve an important public cial network websites space that has the munication and expression, public park that is “open to every white person” is a public function). public park that is “open to every white would not allow state and local govern- privatization of these government functions Amendment”). ments to escape “the strictures of the Fourteenth the ability to limit who is able to receive as many social network websites offer users to send private messages, and listeners can particular messages, as well as the ability hear. However, real-world public spaces are often choose from whom they wish to to construing a town square as a “public often no different; no one would object through the square could choose to ignore a place” just because an individual strolling individual was able to have a private con- speech being given there, or because that versation with a friend in the middle of the square. his property for use by the public in general, the more do his rights become circum- net- scribed by the statutory and constitutional rights of those who use it.”). Social to be work websites have generally pursued a policy of openness, allowing all comers to members unless they violate the site’s terms of service. Some sites restrict access certain small groups of individuals—Facebook,allow convicted for example, does not sex offenders to access its website. unlikely that the Court would extend the public function exception to exception function the public extend would the Court that unlikely functions core government they perform actors unless nongovernmental and railroads,” ferries, turnpikes “bridges, such as operating \\jciprod01\productn\N\NMX\44-1\NMX104.txt unknown146 Seq: 26 4-FEB-14 13:06 33996-nmx_44-1 Sheet No. 78 Side B 02/06/2014 10:11:19 B 02/06/2014 78 Side Sheet No. 33996-nmx_44-1 33996-nmx_44-1 Sheet No. 79 Side A 02/06/2014 10:11:19 R R R 147 exclusively been the prov- exclusively been note 50, at 2081 (“[T]here is no and In the past, only governments In the past, supra 132 note 94, at 72–73 (arguing that the public forum traditionally The public function exception and the public The public function exception and supra 134 both , b. Doctrine The Public Forum note 7, at 54 (“While there are limits to how many people can note 7, at 54 (“While there are limits to UNZIATO CENSORSHIP AND FREEDOM OF EXPRESSION OF FREEDOM AND CENSORSHIP N supra been the province of the state. At the same time, because been the province of the state. At See 133 boyd, Cf. The case for treating social network websites as state actors under social network websites as state The case for treating Social network websites are also able to accommodate millions upon millions accommodate able to are also websites network Social 132. 133. do exist, but common sense sug- Privately owned streets, sidewalks, and parks 134. owned or operated by the The public forum doctrine applies only to spaces M K were able or willing to offer spaces that are even remotely comparable in even remotely comparable spaces that are or willing to offer were able spaces like privately owned large. While large by the public at size for use rarely been exist, they have malls do airports, and shopping stadiums, comers. In this sense, speech or open to virtually all dedicated to public previously “exclu- provide a service that was social network websites therefore serve a by the State. Social network websites sively” provided has public function that actors even under and therefore can be held to be state ince of the State, the public function exception. a narrow view of the public function exception is further strengthened by comparing them exception is further strengthened the public function spaces that the to the government-owned and government-controlled Amendment public forum doctrine. Court has protected under the First websites strongly resemble the In both form and function, social network traditional public forums, such as pub- spaces the Court has identified as essentially the same role of pro- lic streets, sidewalks, and parks, serving discussion, and debate of important viding a space for free expression, resemblance between social net- social and political issues. This strong forums thus further clarifies how so- work websites and traditional public that has both traditionally and cial network websites serve a function exclusively promoting speech in public forums promotes First Amendment values, promoting speech in public forums network websites strongly resemble and because public forums and social it follows that protecting communi- each other in both form and function, would promote First Amendment val- cations on social network websites doctrine would not apply to social ues as well, even if the public forum network websites per se. millions more speakers and listeners at once than almost any public space than almost any listeners at once more speakers and millions memory. ever existed in human that has be in one physical space at a time, networked publics support the gathering of much be in one physical space at a time, networked larger groups, synchronously and asynchronously.”). to the gests that they are quite uncommon. The existence of these minor exceptions a find- general rule of government ownership and control of such spaces would defeat ing of exclusivity only through the operation of a narrow and unthinking technicality. government. doctrine does not apply to the internet); Balkin, ‘traditional public forum’ for virtual spaces.”). Government-managed Facebook \\jciprod01\productn\N\NMX\44-1\NMX104.txt unknown 2014] Spring Seq: 27 4-FEB-14 13:06 C Y 33996-nmx_44-1 Sheet No. 79 Side A 02/06/2014 10:11:19 A 02/06/2014 79 Side Sheet No. 33996-nmx_44-1 33996-nmx_44-1 Sheet No. 79 Side B 02/06/2014 10:11:19 R M K see C Y , 58 ERKE- 1975, Perry . [Vol. 44 B which EV 136 , , 20 141 Courts and 137 1, 9 (1998). . Hague v. Com- Hague v. EV B.U. L. R 149, 169 (1998); . in which the Court , 91 142 ECH . L. R , OLO Further, providing for access Further, providing U. C Schneider v. Irvington 138 . J.L. & T , 69 and it also ensures that “in public ARV 140 H and Public Forum 2.0 135 established the basic form of the public established the basic form of the , 12 Sidewalks in Cyberspace: Making Space for Public Fo- , 307 U.S. at 515–16(Roberts, J., concurring). A Funny Thing Happened on the Way to the Cyber Fo- The Death of the Public Forum in Cyberspace NEW MEXICO LAW REVIEW Schneider note 94, at 42. Lyrissa Lidsky, Hague and See supra , Reopening the Public Forum — From Sidewalks to Cyberspace 1115, 1147 (2005). at 163; 1535, 1538–39 (1998). Hague . L.J. LEY UNZIATO . L.J. T See id. N ECH While Under the public forum doctrine, restrictions on speech in public on speech in doctrine, restrictions public forum Under the as well as undervalued speech, S T 139 138. 135. 496 (1939). 307 U.S. 136. 147 (1939). 308 U.S. 137. 141. Noah D. Zatz, Note, 140. David J. Goldstone, 142. 460 U.S. 37 (1983). 139. Dawn C. Nunziato, HIO established that the First Amendment protects speech in spaces that have First Amendment protects speech established that the discussion and the as forums for the purpose of public traditionally served parks. information, particularly streets and dissemination of commentators have since established several convincing rationales for since established several convincing commentators have that “even if all one, protecting such spaces ensures this doctrine. For against the owners were permitted to discriminate private property publicly owned places there would remain some speech of their choosing, preserve as open purposes that the state must conducive to expressive discussion and debate.” spaces for public delineated three categories of spaces that receive differing levels of scru- delineated three categories of spaces The first category is the traditional tiny under the public forum doctrine. long tradition or by government fiat,” public forum, which may arise “by to public forums helps to subsidize the speech of poorly financed speak- to public forums helps to subsidize ers places people may be confronted with speech they would rather avoid,” places people may be confronted and empathy and prevents our which promotes cultural understanding factionalism and conflict. political life from degenerating into 1976–77 (2011). Steven G. Gey, rums in the Electronic Environment forum doctrine, the contemporary doctrine largely derives from forum doctrine, the contemporary Education Ass’n v. Perry Local Educators’ Ass’n Education Ass’n v. Perry Local Educators’ rum: Public vs. Private in Cyberspace Speech O mittee for Industrial Organization mittee for Industrial some form of public forum protected by the pages, however, might be conceived of as First Amendment. spaces that have traditionally served as a venue for free expression and venue for free expression served as a have traditionally spaces that public forum scrutiny. The constitutional subject to special debate are the late 1930s, two cases from owes its origin to doctrine forum doctrine therefore dovetail neatly in making the case for extending case for the in making neatly dovetail therefore doctrine forum websites. of social network to the actions scrutiny federal constitutional \\jciprod01\productn\N\NMX\44-1\NMX104.txt unknown148 Seq: 28 4-FEB-14 13:06 33996-nmx_44-1 Sheet No. 79 Side B 02/06/2014 10:11:19 B 02/06/2014 79 Side Sheet No. 33996-nmx_44-1 33996-nmx_44-1 Sheet No. 80 Side A 02/06/2014 10:11:19 R 148 149 149 The 147 Thus, 144 The Court 143 public forums , Frisby v. Shultz, 151 and parks. 146 150 See, e.g. sidewalks, United States v. Kokinda, 497 U.S. 145 But see note 70, at 184. CENSORSHIP AND FREEDOM OF EXPRESSION OF FREEDOM AND CENSORSHIP supra Schenck v. Pro-Choice Network of W. N.Y., 519 U.S. 357, 377 (1997) Schenck v. Pro-Choice Network of W. , , Jamison v. Texas, 318 U.S. 413, 417 (1943); Schneider v. Irvington, , Jamison v. Texas, 318 U.S. 413, 417 (1943); , Ark. Educ. Television Comm’n v. Forbes, 523 U.S. 666, 676 (1998) , Hague v. Comm. for Indus. Org., 307 U.S. 496, 515 (1939). , Hague v. Comm. for Indus. Org., 307 at 46. Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983). Perry Educ. Ass’n v. Perry Local Educators’ (citation omitted). at 45. It should be noted, however, that the Court is willing to uphold time, at 45. It should be noted, however, that ARBER See, e.g. See Id. See, e.g., See, e.g. See id. F See, e.g. Id. While the Court has generally been reluctant to designate spaces has generally been reluctant to While the Court 151. 148. 150. 147. 144. 149. 146. 145. 143. M K second category is the limited public forum, which is property that has which is property public forum, is the limited second category by the government. forum for public communication been opened as a traditional public forums include streets, public forums traditional typically describes traditional public forums as resembling “outdoor areas as resembling “outdoor public forums describes traditional typically facilities.” with government not intimately connected that are need not be physical spaces—for example, the Court has held the array of public university to be a limited public student organizations funded by a (televised presidential candidate debates); Int’l Soc’y for Krishna Consciousness, Inc. (televised presidential candidate debates); Int’l Soc’y for Krishna Consciousness, De- v. Lee, 505 U.S. 672, 695 (1992) (airport terminal); Cornelius v. NAACP Legal fense & Educ. Fund, 473 U.S. 788, 805–806 fundraising drive con- (1985) (annual for ducted in federal offices); Members of the City Council of L.A. v. Taxpayers Vincent, 466 U.S. 789, 814 (1984) (utility poles); Heffron v. Int’l Soc’y for Krishna v. Consciousness, 452 U.S. 640, 655 (1981) (state fairgrounds); U.S. Postal Serv. Greenburgh Civic Ass’ns, 453 U.S. 114, 133 (1981) (home mailbox). 720, 727 (1990) (holding by plurality that a sidewalk connecting a post office to a 720, 727 (1990) (holding by plurality that parking lot is not a traditional public forum). place, and manner restrictions in traditional public forums. place, and manner restrictions in traditional ordinance prohibiting residential picketing 487 U.S. 474, 481 (1988) (upholding an of a particular residence). that focuses on and takes place outside 308 U.S. 147, 163 (1939). public forum); Boos v. Barry, 485 U.S. (asserting that sidewalks are a “prototypical” and sidewalks[312, 318 (1988) (observing that “public streets ] [are] traditional public 171, 183 (1983) (holding that sidewalks fora”); United States v. Grace, 461 U.S. outside courthouse were public forums). other than streets, sidewalks, and parks as public forums, other than streets, sidewalks, and and in which the government may not engage in content regulation or regulation in content engage may not the government in which and interest. compelling governmental forum without a close the public forums so long are treated like traditional Limited public forums forums in that the to the public, but differ from public as they are open if it wishes to do so. close off access to them entirely government may property that is not by is the nonpublic forum, which is The third category Access to a forum for public communication. tradition or designation so long as the may be regulated by the government nonpublic forums expression merely and not an effort to suppress regulation is “reasonable oppose the speaker’s view.” because public officials \\jciprod01\productn\N\NMX\44-1\NMX104.txt unknown 2014] Spring Seq: 29 4-FEB-14 13:06 C Y 33996-nmx_44-1 Sheet No. 80 Side A 02/06/2014 10:11:19 A 02/06/2014 80 Side Sheet No. 33996-nmx_44-1 33996-nmx_44-1 Sheet No. 80 Side B 02/06/2014 10:11:19 R R R M K 156 C Y 335 Sev- [Vol. 44 154 L.J. The Public ASTINGS H , 46 , Justice Kennedy stated that the in- Reno 155 , at 383. Admittedly, however, courts have thus , at 383. Admittedly, however, courts have supra 439, 494 (exploring the use of physical metaphors to . Cyberspace as Place and the Tragedy of the Digital An- note 141, at 179–87 (comparing physical spaces to in- note 141, at 1618–19; David J. Goldstone, EV NEW MEXICO LAW REVIEW supra note 139, at 1161–64. Goldstone, however, only proposes that supra . L. R Transcript of Oral Argument at 17–18,at Argument Oral of Transcript Reno v. ACLU, 521 U.S. Goldstone, supra See ALIF , Gey, , Zatz, , Denver Area Educ. Telecomms. Consortium v. FCC, 518 U.S. 727, , Denver Area Educ. Telecomms. Consortium C See Some Justices, notably Justice Kennedy, have suggested that a suggested that Kennedy, have notably Justice Some Justices, Rosenberger v. Rector & Visitors of the Univ. of Va., 515 U.S. 819, 829–30 Rosenberger v. Rector & Visitors of the (citing public forum doctrine Reno v. ACLU, 521 U.S. 844, 870, 880 (1997) , 91 153 The Court has recognized that speech in online spaces may spaces in online that speech has recognized Court The 152 See See See, e.g. See, e.g. See, e.g. Spaces on the internet can easily be analogized to physical spaces. can easily be analogized to physical Spaces on the internet 152. 153. 154. 155. 156. eral scholars share Justice Kennedy’s view, and some have been willing to Justice Kennedy’s view, and some eral scholars share the public forum doc- Court in arguing for extending go further than the online spaces. trine to all or some (1995); Nunziato, describe cyberspace and contending that “courts and commentators have adopted the describe cyberspace and contending that “courts and commentators have adopted cyberspace as place metaphor”). more functional approach to designating spaces as public forums might spaces as public to designating approach more functional the decreas- developments and technological given recent be appropriate expression. sidewalks, and parks for public ing relevance of streets, strongly resemble certain forms of speech in spaces traditionally pro- in spaces traditionally forms of speech resemble certain strongly in a pub- as pamphleteering doctrine, such the public forum tected under lic place. (1995). distribution mechanisms to pamphleteering). case law to compare the use of internet for Additionally, during the oral argument because anyone with a computer can get on ternet is “a pretty public place, though, so it is much like . . . a street corner or a line . . . and convey information and images, park, in a sense.” 844 (1997) (No. 96-511). 802–803 J., concurring in part, concurring in the judgment in part, (1996) (Kennedy, changed in streets and parks as they once and dissenting in part) (“Minds are not significant interchanges of ideas and shaping were. To an increasing degree, the more electronic media. The extent of public enti- of public consciousness occur in mass and communication may be changed as technolo- tlement to participate in those means of gies change. . . .” (citation omitted)). ternet spaces); Dan Hunter, ticommons Forum Doctrine in the Age of the Information Superhighway Forum Doctrine in the Age of the Information internet spaces should be considered government-owned or government-controlled public forums. For instance, two federal district courts have far been skeptical of such arguments. engine is a public forum. Langdon v. rejected the argument that Google’s search v. Google, Inc., 474 F. Supp. 2d 622, 632 (D. Del. 2007); Kinderstart.com, LLC Google, Inc., No. C 06-2057 JF (RS), 2007 WL 831806, at *14–15 (N.D. Cal. Mar. 16, 2007). Indeed, if any spaces on the internet share a similarity in form or function on the internet share a similarity Indeed, if any spaces have been designated sidewalks, and parks that to the public streets, share the strongest re- forums, social network websites traditional public can very much sim- In terms of form, using Facebook semblance to them. forum. \\jciprod01\productn\N\NMX\44-1\NMX104.txt unknown150 Seq: 30 4-FEB-14 13:06 33996-nmx_44-1 Sheet No. 80 Side B 02/06/2014 10:11:19 B 02/06/2014 80 Side Sheet No. 33996-nmx_44-1 33996-nmx_44-1 Sheet No. 81 Side A 02/06/2014 10:11:19 R R 151 note 94, ACEBOOK F , supra , UNZIATO N than they are a public than they are a cf. 158 In scrolling down your news feed, you come down your In scrolling 157 Rethinking Information Diversity in Networks note 7, at 45 (“Through mundane comments[ ] [on social net- CENSORSHIP AND FREEDOM OF EXPRESSION OF FREEDOM AND CENSORSHIP supra boyd, Eytan Bakshy, See See Therefore, in both form and function, social network websites Therefore, in both form and function, Facebook also serves many of the same functions as traditional pub- many of the same functions as Facebook also serves 159 157. 158. Schneider v. Irvington, 308 U.S. 147, 163 (1939); 159. M K street or park. Although our tradition of physically protesting in public our tradition of physically street or park. Although network websites and well, Facebook and similar social spaces is still alive at a very low cost and to a allow speakers to disseminate information to fewer strangers than one might fairly broad audience (though perhaps forum). Further, audiences on such come across in a traditional public speech that they would otherwise websites are often confronted with image of the online echo cham- avoid or not hear, contrary to the popular ber. lic forums. Today’s citizens are probably more likely to view an online citizens are probably more likely lic forums. Today’s and proper place[ like Facebook as a “natural social network website ] for of information and opinion” the dissemination across both close friends and acquaintances, seeing what they are up to by seeing what they acquaintances, close friends and across both to chat with even stopping afar, or perhaps them silently from observing conversation. a private on a posting or through a comment them through some you do including a group of individuals, also come across You might commenting on some a social or political issue by not know, discussing come across a protest has posted. You could even material that someone or by one of the issued either by one of your friends or a call to action, you subscribe to. groups whose updates strongly resemble those spaces that have traditionally been open to pub- strongly resemble those spaces that government. This strong resemblance lic expression and debate by the traditional public forums further so- between social network websites and public function exception to social net- lidifies the case for extending the time clarifying how protecting work websites, while at the same websites would promote First Amend- communications on social network ment values. work websites], participants are acknowledging one another in a public setting, similar work websites], participants are acknowledging to the way in which they may greet each other if they were to bump into one another on the street.”). town at 85 (arguing that the Internet is “the functional equivalent of the public square”). (Jan. 17, 2012, 11:00 AM), http://www.facebook.com/notes/facebook-data-team/re- thinking-information-diversity-in-networks/10150503499618859. ulate the experience of strolling down a public street or through a public through street or a public down strolling of the experience ulate a small town. square in \\jciprod01\productn\N\NMX\44-1\NMX104.txt unknown 2014] Spring Seq: 31 4-FEB-14 13:06 C Y 33996-nmx_44-1 Sheet No. 81 Side A 02/06/2014 10:11:19 A 02/06/2014 81 Side Sheet No. 33996-nmx_44-1 33996-nmx_44-1 Sheet No. 81 Side B 02/06/2014 10:11:19 R R M K 161 C Y In State 166 . L. & [Vol. 44 UB and the 163 Brentwood Thus, “pri- J. P 160 see also AMLINE H , 27 In general, government li- In general, government 162 165 note 94, at 99; Jennifer Arnette-Mitchell, Note, note 86, at 529. NEW MEXICO LAW REVIEW supra supra , , , Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 52 (1999); Jackson v. , Am. Mfrs. Mut. Ins. Co. v. Sullivan, 526 UNZIATO N Evans v. Newton, 382 U.S. 296, 301 (1966). Gilmore v. City of Montgomery, 417 U.S. 556, 569 (1974) (stating that HEMERINSKY unless the purpose of that financial support is to undermine the of that financial support is to unless the purpose C See See, e.g. See See 164 Some commentators have argued that in light of the federal govern- Some commentators have argued The public function exception is, of course, but one of two excep- but one of two is, of course, function exception The public 2. Exception Entwinement The 160.v. Edmonson Oil Co., 457 U.S. 922, 937 (1982); Lugar 162. 163. 164. in Rendell-Baker v. Kohn, 457 U.S. 830, 832, 841–42 For example, (1982), the 165. 166. 161. same is true for government financial support of a nongovernmental government financial support of same is true for party, vate conduct must comply with the Constitution if the government has comply with the Constitution vate conduct must conduct,” or facilitated the unconstitutional authorized, encouraged, censing or regulation is insufficient for a finding of state action, is insufficient for a finding of censing or regulation protection of constitutional rights. protection of constitutional ment’s involvement in the creation of the internet and its goal in doing so ment’s involvement in the creation the free exchange of information, the of fostering communication and as sufficiently entwined with the federal government should be viewed all internet actors as state actors. internet to justify treating some or Metro. Edison Co., 419 U.S. 345, 350 (1974); Columbia Broad. Sys. v. Democratic Metro. Edison Co., 419 U.S. 345, 350 Lodge No. 107 v. Irvis, 407 U.S. 163, 177 Nat’l Comm., 412 U.S. 94, 140 (1973); Moose (1972). over 90 percent of its funds from the Court held that a private school that received actions were not “compelled or even influ- state was not a state actor so long as its enced by any state regulation.” government may not support private schools with racially discriminatory admissions policies); Norwood v. Harrison, 413 U.S. 455, 467–68 (stating that Mississippi (1973) may not aid private schools that practice racial discrimination). Action Doctrine Reborn Again: Why the Constitution Should Act as a Checking Mech- Action Doctrine Reborn Again: Why the Constitution Should Act as a Checking anism for ICANN’s Uniform Dispute Resolution Policy for example by giving the nongovernmental party the authority to man- the nongovernmental party for example by giving that the nongov- property with the knowledge age a publicly accessible property in an will restrict access to the ernmental party discriminatory manner. unconstitutionally \\jciprod01\productn\N\NMX\44-1\NMX104.txt unknown152 Seq: 32 4-FEB-14 13:06 tions to the state action doctrine. Under the entwinement exception, a the entwinement doctrine. Under the state action tions to he has ac- state actor “because be deemed a actor may nongovernmental officials, or aid from state obtained significant with or has ted together to the State.” chargeable his conduct is otherwise because Acad. v. Tenn. Secondary Sch. Athletic Ass’n, 531 U.S. 288, 295 (2001) (citation omit- Acad. v. Tenn. Secondary Sch. Athletic if, there is such a ‘close nexus between the ted) (“[S]tate action may be found . . . only seemingly private behavior ‘may be fairly State and the challenged action’ that treated as that of the State itself.’”); Auth., 365 U.S. Burton v. Wilmington Parking 715, 724 (1961). 33996-nmx_44-1 Sheet No. 81 Side B 02/06/2014 10:11:19 B 02/06/2014 81 Side Sheet No. 33996-nmx_44-1 33996-nmx_44-1 Sheet No. 82 Side A 02/06/2014 10:11:19 R 153 See , 50 Wrong Such claims are likely to continue to Such claims are 169 as well as the argument that Google (which as well as the argument 168 167 CENSORSHIP AND FREEDOM OF EXPRESSION OF FREEDOM AND CENSORSHIP note 13. Thus, at the moment, social network websites would almost Thus, at the moment, social network McNeil v. Verisign, Inc., 127 Fed. App’x 913, 914 (9th Cir. 2005) (ICANN McNeil v. Verisign, Inc., 127 Fed. App’x 2010 WL 4269304, at Young v. Facebook, Inc., No. 5:10-cv-03579-JF/PVT, supra 17, 113–25 that it is at least plausible that ICANN can be (2000) (arguing 170 See See Courts have also thus far rejected claims that social network web- that social network rejected claims also thus far Courts have 307, 342–46 that the Internet Corporation for Assigned Names (2006) (arguing L.J. Y ’ 167. 168. 169. 631 (D. Del. 2007); Kinder- Langdon v. Google, Inc., 474 F. Supp. 2d 622, 170. some foreign governments This claim applies only to the United States, as M K UKE OL be unavailing given the rather minimal nature of the contacts between the the rather minimal nature of the be unavailing given federal, and local websites: at the moment, state, State and social network network websites merely as a basic governments appear to use social not have any special relationship with communication tool, and they do the sites. operates the social network websites Google+ and YouTube) is entwined network websites Google+ and operates the social digital librar- Google is working on a collaborative with the State because universities. ies project with state certainly not be classified as state actors under the entwinement certainly not be classified as exception. Sengupta, considered a state actor under existing Supreme Court precedents). considered a state actor under existing it was first established by agencies of the is not a state actor, despite the fact that the internet domain name system); Murawski United States government to administer 2007) (Yahoo! was not “transformed into v. Pataki, 514 F. Supp. 2d 577, 588 (S.D.N.Y. public funding of the development of the a state actor because it benefited from early Solutions, Inc., 119 F. Supp. 2d 289, 307 internet”); Island Online, Inc. v. Network that the government was entwined in the (E.D.N.Y. 2000) (rejecting the argument registrant). obscenity policy of a private domain name *3 (N.D. Cal. Oct. 25, 2010). at Start.com v. Google, Inc., No. C 06-2057 JF (RS), 2007 U.S. Dist. LEXIS 22637, *42–44 (N.D. Cal. Mar. 16, 2007) (unpublished decision). net- have been more active in involving themselves in the censorial conduct of social work websites, as is the case with several foreign governments and Twitter. sites or their parent companies have relationships with the government companies have relationships sites or their parent state action. Federal entwinement to demonstrate that show sufficient a state actor because the argument that Facebook is courts have rejected allow the agencies to government agencies, which of its contracts with Facebook, operate pages on and Numbers (“ICANN”) should be viewed as a state actor since it is a delegatee of and Numbers (“ICANN”) should be viewed regulate the internet and because its policies the federal government’s authority to A. Michael Froomkin, are in part the result of government encouragement); Around the APA and the Constitution Turn in Cyberspace: Using ICANN to Route P D its broadest form this argument proves too much, as it could be used to could be as it too much, proves argument this form its broadest and in its nar- as a state actor, internet actor virtually any justify treating the govern- websites, which to social network it does not apply row form consistently courts have in creating. Moreover, not have a hand ment did such arguments. rejected \\jciprod01\productn\N\NMX\44-1\NMX104.txt unknown 2014] Spring Seq: 33 4-FEB-14 13:06 C Y 33996-nmx_44-1 Sheet No. 82 Side A 02/06/2014 10:11:19 A 02/06/2014 82 Side Sheet No. 33996-nmx_44-1 33996-nmx_44-1 Sheet No. 82 Side B 02/06/2014 10:11:19 R M K C Y [Vol. 44 Lastly, 171 , 521 U.S. 844 (1997), the Supreme Court rejected court, the existence of such alternatives was disposi- NEW MEXICO LAW REVIEW note 91, at 1272. supra 172 Reno v. ACLU Cyber Promotions Berman, See Yet given that such claims are highly fact-specific, one could easily one fact-specific, highly are such claims given that Yet Despite the foregoing arguments, the claim that social network web- arguments, the claim that social Despite the foregoing 3. and the Limits of Existing Doctrine Judicial Restraint 171. 172. To the even though not being able to access a social network website could be even though not being able to access ability to get their message out, nu- particularly damaging to a speaker’s do exist, including other websites, merous alternatives to such websites and passing out leaflets, which mail, newspapers, magazines, television, with censorial acts by social could lead a court to be more comfortable network websites. imagine scenarios in which litigants could be successful on a claim against successful on a litigants could be scenarios in which imagine For exam- exception. on the entwinement website based a social network as part related to WikiLeaks messages began censoring ple, if Facebook might sat- such censorship federal agencies, effort with of a coordinated Similarly, a state action. and be deemed exception, isfy the entwinement the government to social network websites and joint initiative between invoke the from sexual predators could potentially protect children and the extent of the based on what form it took entwinement exception, that social net- Thus, while it is currently unlikely State’s involvement. the entwinement ex- be deemed state actors under work websites would websites to be state and should hold social network ception, courts can in which it applies. entwinement exception in situations actors under the \\jciprod01\productn\N\NMX\44-1\NMX104.txt unknown154 Seq: 34 4-FEB-14 13:06 sites should be characterized as state actors remains vulnerable to attack sites should be characterized as state further discourage courts that are al- on several grounds, which could territory on the frontiers of the First ready disinclined to stake out new doctrine. For one, there is simply no Amendment and the state action network websites are run by private getting around the fact that social for placing a somewhat heavier thumb companies for profit, which argues scale in cases involving social network on the property rights end of the public spaces. websites than in cases involving government-administered ability to regulate spaces that re- Additionally, social network websites’ be all that problematic when we semble public squares may not really public speech in such spaces is a consider that debate and meaningful spaces are virtually nonexistent in relatively rare occurrence, and such those in suburbs and exurbs. many municipalities, particularly tive with respect to the court’s rejection of the applicability to AOL of the exclusivity 443 argument. Cyber Promotions, Inc. v. America Online, Inc., 948 F. Supp. 436, (E.D. Pa. 1996). In the argument that certain types of speech could be proscribed on the internet because 33996-nmx_44-1 Sheet No. 82 Side B 02/06/2014 10:11:19 B 02/06/2014 82 Side Sheet No. 33996-nmx_44-1 33996-nmx_44-1 Sheet No. 83 Side A 02/06/2014 10:11:19 Id. 155 CENSORSHIP AND FREEDOM OF EXPRESSION OF FREEDOM AND CENSORSHIP Facebook will have several strong arguments with which to counter There is no clear answer as to what the result in this hypothetical There is no clear answer as to what A hesitant court thus has plenty of material to work with. One can One work with. to of material has plenty thus court A hesitant it does not cur- large market in which wants to enter a Facebook re- by a particularly is governed This new market rently compete. for violating human notorious and autocratic regime pressive and the regime’s actions, criticism, discussion, rights. Because of among have become relatively common protest of the regime Facebook Facebook. For example, American American users on editorials updates that share news stories and users post status sparks for its human rights record, which criticizing the regime belong to debate amongst their friends; they commentary and the regime; which espouse viewpoints critical of Facebook groups Facebook to groups to which they belong use and they and the of the regime. promote public protests convincing it of appeasing the regime and Facebook, in the hopes censors some of the con- that it will not undermine its authority, promotes material that is tent that is critical of the regime and ham-handedly deleting critical favorable to it. Rather than simply engages in more subtle forms content or groups, Facebook instead search to hide Facebook of censorship, such as modifying its graph and removing them from groups and pages critical of the regime user suggestions. a group affected by these In response, a user administering violation of her First Amend- changes sues Facebook, alleging a censorial actions can be ment rights, and claiming that Facebook’s function exception. viewed as state action under the public M K these claims. First, Facebook will point out that the plaintiffs are swim- ming against doctrinal currents, and that courts have overwhelmingly case would be. The plaintiff will argue that Facebook is serving as a sub- case would be. The plaintiff will argue forums like public forums, and stitute for or supplement to real-world that is both traditionally and exclu- therefore it is performing a function plaintiff will also argue that subject- sively the province of the State. The restrictions is wholly reasonable, as it ing Facebook to First Amendment engaging in viewpoint discrimination would merely forbid Facebook from countervailing and legitimate compel- unless it can be justified by some ling interest. imagine how such a court might consider these competing arguments in a competing arguments might consider these how such a court imagine the following: Facebook. Suppose case involving hypothetical there were ample non-internet avenues of communication available for speakers. there were ample non-internet avenues of communication available for speakers. at 879–80. \\jciprod01\productn\N\NMX\44-1\NMX104.txt unknown 2014] Spring Seq: 35 4-FEB-14 13:06 C Y 33996-nmx_44-1 Sheet No. 83 Side A 02/06/2014 10:11:19 A 02/06/2014 83 Side Sheet No. 33996-nmx_44-1 33996-nmx_44-1 Sheet No. 83 Side B 02/06/2014 10:11:19 M K C Y [Vol. 44 NEW MEXICO LAW REVIEW III. PATHS TO PROTECTION ALTERNATIVE It is easy, given the existing case law, to imagine a court siding with It is easy, given the existing case law, shield communications on social It may, of course, be possible to The plaintiffs will cry foul, arguing that Facebook is trying to have cry foul, arguing that Facebook The plaintiffs will Facebook, citing both judicial restraint and the availability of alternative Facebook, citing both judicial restraint law, federal and state leg- paths to protection such as state constitutional regulations. But with regard to the for- islation, and federal media access this Part demonstrate that it is wholly mer, the foregoing arguments in network websites are state actors, defensible for courts to hold that social doctrine. And with regard to the latter, even within the bounds of existing make clear that this argument car- a brief but careful examination should ries little water. hand without requiring federal courts network websites from the censor’s law. The three primary to creatively interpret federal constitutional law, state and federal leg- means of achieving this are state constitutional regulations. This Part addresses how islation, and federal media access as a each of these alternative approaches is less desirable and less viable pro- long-term solution than securing court-recognized First Amendment tections for communications on social network websites. things both ways with respect to whether the site is a public space (as its with respect to whether the site is things both ways in the litigation), but or a private one (its stance advertising suggests) for privately owned busi- Facebook will counter that it is a commonplace the public at large while still retaining nesses to open their premises to properties. ultimate control over access to their held privately owned internet companies not to be state actors. Then, actors. to be state not companies internet owned privately held services, it not offer municipal not only does will point out that Facebook from advertis- revenues that generates it is a for-profit company but also dollars time and advertisers’ for users’ that faces competition ing and In forms of entertainment. websites and other social network from other engaged in has ever argue that no government Facebook will this sense, therefore it does not form the core of its business, and the activities that “exclusively,” been that has “traditionally,” let alone serve any function that applying First state. Further, Facebook will argue the province of the with its private prop- to its actions unduly interferes Amendment scrutiny could open up the to manage its business, and erty rights and ability the valuable atmos- by groups bent on destroying floodgates to attacks of pornography. of the site, such as distributors phere and infrastructure \\jciprod01\productn\N\NMX\44-1\NMX104.txt unknown156 Seq: 36 4-FEB-14 13:06 33996-nmx_44-1 Sheet No. 83 Side B 02/06/2014 10:11:19 B 02/06/2014 83 Side Sheet No. 33996-nmx_44-1 33996-nmx_44-1 Sheet No. 84 Side A 02/06/2014 10:11:19 R R 157 489, , 447 . EV aff’d and the violates the 176 . L. R ARV H State courts can State courts 173 state action , 90 line of cases, the Supreme line of cases, the Ultimately, though, this ap- Ultimately, though, 175 Golden Gateway Center v. Golden 165, 173–78 (2009). . The Supreme Court of California has The Supreme Court of California Why Teach—And Why Study—State Constitu- Logan Valley 179 EV note 140, at 23 (“An alternative strategy for parties note 140, at 23 (“An alternative strategy a plurality of the California Supreme Court a plurality of the California Supreme What Does—And Not—Ail Does State Constitutional 178 supra , U. L. R and their doing so offers several advantages over several advantages doing so offers and their 687, 709 (2011) (“At issue is whether . ITY 174 EV . C CENSORSHIP AND FREEDOM OF EXPRESSION OF FREEDOM AND CENSORSHIP KLA . L. R note 139, at 1164–67 (arguing that state courts should interpret the , Goldstone, O Then, in the 2001 case of AN 177 Jeffrey S. Sutton, Speech, Jeffrey S. Sutton, , 34 supra at 810. U. K See Id. See, e.g. See Several states’ high courts have already recognized rights under courts have already recognized Several states’ high State constitutional law might provide an alternative path to protec- path to provide an alternative law might State constitutional , 59 State Constitutions and the Protection of Individual Rights State Constitutions and the Protection of 175. 177. (1980). Pruneyard Shopping Ctr. v. Robins, 447 U.S. 74 178. 29 P.3d 797 (Cal. 2001). 179. 176.341, 347 (Cal. 1979), Robins v. Pruneyard Shopping Ctr., 592 P.2d 173. 174. M K federal Supreme Court affirmed this decision and found that states could federal Supreme Court affirmed this centers under their own state con- recognize a right of access to shopping stitutions. step into the breach left by the federal constitution’s under-protection of under-protection the federal constitution’s the breach left by step into rights, constitutional their state constitutions that could be used to establish protections for that could be used to establish their state constitutions that social network network websites, despite the fact speech on social in the wake of the Su- owned spaces. For example, websites are privately in the preme Court’s decisions proach is a less-than-ideal alternative to the recognition by federal courts alternative to the recognition proach is a less-than-ideal on social network protections for communications of First Amendment websites. Constitution protects concluded that the California Court of California owned shopping centers, speech and petitioning in privately 503 (1977). tional Law also in recent years taken a more expansive view of the state action doc- also in recent years taken a more than federal courts have been willing trine under the federal constitution suggested that private property in California may be subject to the speech suggested that private property in if it is the “functional equivalent provisions of the California Constitution of a traditional public forum.” U.S. 74 (1980). federal solutions, including allowing for greater experimentation and be- experimentation allowing for greater including federal solutions, by democratic means. ing easier to reverse Federal Constitution. If the state constitution prohibits the law or conduct at issue, Federal Constitution. If the state constitution Constitution to do.”); William J. Brennan, however, there is no work for the Federal Jr., Gateway Tenants Ass’n seeking access in private forums is to establish a right of access based on state law.”); seeking access in private forums is to establish Nunziato, to extend to internet forums). free speech provisions of their state constitutions tion for communications on social network websites. on social network communications tion for A. Law Constitutional State \\jciprod01\productn\N\NMX\44-1\NMX104.txt unknown 2014] Spring Seq: 37 4-FEB-14 13:06 Law C Y 33996-nmx_44-1 Sheet No. 84 Side A 02/06/2014 10:11:19 A 02/06/2014 84 Side Sheet No. 33996-nmx_44-1 33996-nmx_44-1 Sheet No. 84 Side B 02/06/2014 10:11:19 R R M K C Y [Vol. 44 or by an award of Colorado will sometimes en- Colorado will sometimes 182 note 91, at 1307 (citing Batchelder v. note 91, at 1306. , is state action that must comply with supra supra , , New Jersey Coalition Against War in the Coalition Against New Jersey the New Jersey Supreme Court stated that Jersey Supreme the New and “[f]ew states have followed California 181 185 Less expansively, Massachusetts and Wash- Less expansively, , 183 NEW MEXICO LAW REVIEW Developments in the Law Developments in the Law Curious Theatre Co. v. Colo. Dep’t of Pub. Health & Env’t, 220 P.3d 544, Intel Corp. v. Hamidi, 71 P.3d 296, 311 (Cal. 2003) (“[T]he use of govern- Intel Corp. v. Hamidi, 71 P.3d 296, 311 at 1306. at 770. Further, pursuing state constitutional law as a means for pro- Further, pursuing state constitutional As Facebook and several other popular social network websites network social popular other and several Facebook As 186 See Id. See Id. 184 180 Outside of California, in Outside However, at least seventeen state high courts have held that the However, at least seventeen state 183. 184. Note, 186. 180. 181. 650 A.2d 757 (N.J. 1994). 182. 185. Note, force the freedom of expression protections of its constitution against of expression protections of its force the freedom entities. nongovernmental in accepting the Supreme Court’s invitation to adopt state free speech in accepting the Supreme Court’s those guaranteed by the First Amend- protections more expansive than ment.” “the New Jersey Constitution’s right of free speech is broader than the Constitution’s right of free speech “the New Jersey found in the First abridgement of speech right against governmental Constitution private held that under the New Jersey Amendment,” and exercises allow leafleting and related nondisruptive shopping malls must on their property. of free speech rights ington have recognized a limited expressive right in private malls to col- a limited expressive right in ington have recognized have based these electoral petitions, though they lect signatures for than on speech rights relating to free elections, rather rulings on rights alone. tecting communications on social network websites has several major tecting communications on social of incomplete coverage—asdrawbacks. First is the problem is already the possibility of obtaining protections evident from the existing case law, all, or even most, states’ constitutions is for social network websites under considers the steep costs of state-by- slim to none, especially when one are based in California, California state constitutional law could thus constitutional law California state in California, are based network censorship on social the battle over potent weapon in prove a websites. v. J.M.B. Realty Middle East 551–52 (Colo. 2009). state action requirement of their constitution is identical to that formu- state action requirement of their lated by the Supreme Court, ment power, whether in enforcement of a statute or ordinance ment power, whether in enforcement damages or an injunction in a private lawsuit First Amendment limits.”). Allied Stores Int’l, Inc., 445 N.E.2d 590, 595 (Mass. 1983); Alderwood Assocs. v. Allied Stores Int’l, Inc., 445 N.E.2d 590, 595 (Mass. 1983); Alderwood Assocs. Wash. Envtl. Council, 635 P.2d 108, 116–17opinion)). (plurality 1981) (Wash. to do. \\jciprod01\productn\N\NMX\44-1\NMX104.txt unknown158 Seq: 38 4-FEB-14 13:06 33996-nmx_44-1 Sheet No. 84 Side B 02/06/2014 10:11:19 B 02/06/2014 84 Side Sheet No. 33996-nmx_44-1 33996-nmx_44-1 Sheet No. 85 Side A 02/06/2014 10:11:19 R R 159 , 62 , 90 further cast- 189 Additionally, given the pos- Additionally, At the state level, the legis- 188 190 Two Cheers for State Constitutional Law §2004). (West 425.16 The Failed Discourse of State Constitutionalism ODE note 140, at 25–26. . C ROC supra note 141, at 227 (arguing that Congress has power under the . P This problem is compounded by the realities of geogra- of by the realities is compounded problem This IV CENSORSHIP AND FREEDOM OF EXPRESSION OF FREEDOM AND CENSORSHIP supra 187 . C 1695, 1699–1700 (arguing that relying on state constitutions to (2010) 761, 763 (1992) (“[S]tate constitutional law today is a vast wasteland of . . AL C EV EV Goldstone, James A. Gardner, Zatz, Erwin Chemerinsky, Essay, 191 See See See See See Legislation at the state and federal levels could also provide an al- Legislation at the state and federal State constitutional law therefore does provide a possible alterna- law therefore does provide a State constitutional Such legislation could have several potential benefits over other Such legislation could have several . L. R . L. R ICH 189. 188. 190. 187. 191. M K TAN ternative path to protection for communications on social network web- ternative path to protection for communications social network websites are for-profit sites. At the federal level, as most state lines, it seems that Congress businesses that serve customers across Clause power to regulate at least some would have adequate Commerce websites. of the activities of social network tive to the recognition of First Amendment protections for communica- of First Amendment protections tive to the recognition but given its major websites by federal courts, tions on social network federal constitu- less desirable approach than securing drawbacks it is a tional protections. B. State and Federal Legislation ing doubt on the viability of an approach based on state-by-state viability of an approach based ing doubt on the litigation. sibility for divergent approaches amongst the states, complicated choice- approaches amongst the states, sibility for divergent questions appear to be inevitable, of-law and jurisdictional lature of California has already passed a statute aimed at deterring “stra- lature of California has already passed commonly known as tegic lawsuits against public participation,” right to speak and petition freely in “SLAPPs,” granting individuals the they are publicly or privately “public forums,” regardless of whether owned. phy. Social network websites may have headquarters and offices in cer- and may have headquarters network websites phy. Social Subjecting everywhere. their users are literally locations, but tain physical a recipe for regime is a fifty-state regulatory websites to social network law that state constitutional one considers especially when confusion, doctrine. in less-than-coherent often results protect rights “never will provide more than partial success” and noting that state-by- protect rights “never will provide more state litigation is expensive). confusing, conflicting, and essentially unintelligible pronouncements.”). means of regulating social network websites, such as allowing for more means of regulating social network S M Commerce Clause to regulate activity on the internet). state litigation. state \\jciprod01\productn\N\NMX\44-1\NMX104.txt unknown 2014] Spring Seq: 39 4-FEB-14 13:06 C Y 33996-nmx_44-1 Sheet No. 85 Side A 02/06/2014 10:11:19 A 02/06/2014 85 Side Sheet No. 33996-nmx_44-1 33996-nmx_44-1 Sheet No. 85 Side B 02/06/2014 10:11:19 , M K C Y First [Vol. 44 192 their While state or 193 Revisited: Political Activity on Private Lands NEW MEXICO LAW REVIEW 633, 672–73 (1991). . EV Curtis J. Berger, Pruneyard See First, the FCC probably lacks the authority to issue rules regarding First, the FCC probably lacks the Regulations issued by the Federal Communications Commission Regulations issued by the Federal However, the legislative approach suffers from an Achilles heel: leg- an Achilles heel: suffers from the legislative approach However, N.Y.U. L. R 193. a Louisiana statute that For example, a federal court recently struck down 192. access to or discrimination by social network websites. Under the Com- access to or discrimination by social (FCC) could potentially provide a third alternative path to protection for (FCC) could potentially provide a websites. For example, the FCC could communications on social network websites from restricting access issue a rule that prevents social network or social issues. This approach is an based on a user’s views on political First Amendment protections for inferior alternative to court-recognized websites for several reasons. As a pre- communications on social network lacks the statutory authority to issue liminary matter, the FCC probably the authority, such regulations would such rules. Even if the FCC had the Supreme Court’s recent ap- likely be held unconstitutional given Moreover, as a matter of general pol- proach to media access regulations. that media access regulations for icy there are several reasons to believe social network websites are ill advised. federal legislation is thus an attractive alternative to a court-oriented ap- is thus an attractive alternative to federal legislation social network web- protection of communications on proach to securing and risk, and therefore less sites, it is an endeavor mired in uncertainty federal constitutional protections. viable and desirable than securing C. Federal Media Access Regulations banned sex offenders from using social network websites because the statutory defini- banned sex offenders from using social network websites because the statutory “many tion of “social networking” was overbroad, potentially extending to cover 596, commonly read news and information websites.” Doe v. Jindal, 853 F. Supp. 2d 604 (M.D. La. 2012). islation is undoubtedly a form of state action, which means it would be which means form of state action, undoubtedly a islation is of this ap- The viability scrutiny by courts. First Amendment subject to websites will social network on protecting communications proach to by courts (a topic be- on the level of scrutiny applied therefore depend courts are willing this article), as well as how solicitous yond the scope of by the legislation, case for the interests served to be of the government’s with websites would argue interferes which the social network Amendment rights. In addition, defining statutory terms that adequately In addition, defining statutory Amendment rights. difficult, which emerging technologies is notoriously describe new and down as unconstitu- of such legislation being struck raises the prospect overbroad if it is not worded carefully. tionally vague or 66 dynamic custom-tailoring as the legislation is amended over time, and fa- over time, is amended legislation as the custom-tailoring dynamic or inducements. providing for sanctions enforcement by cilitating \\jciprod01\productn\N\NMX\44-1\NMX104.txt unknown160 Seq: 40 4-FEB-14 13:06 33996-nmx_44-1 Sheet No. 85 Side B 02/06/2014 10:11:19 B 02/06/2014 85 Side Sheet No. 33996-nmx_44-1 33996-nmx_44-1 Sheet No. 86 Side A 02/06/2014 10:11:19 R 161 but it 194 at 975–76. stating that 198 See id. In addition, even the D.C. Circuit ., 545 U.S. at 988–89. 201 197 , that authority would 202 Protecting a Right to Access 47 U.S.C. §(2012), which is 153 see with its “Third Way” proposal, which asserts 383, 391 (2011). For example, the Supreme . EV , 545 U.S. at 975–76. See Brand X Internet Servs Comcast Corp. v. FCC Comcast Corp. v. Comcast which authorizes the FCC to make regulations the FCC which authorizes thus casts serious doubt on the FCC’s authority thus casts serious . L. R 195 note 202. note 194, at 401–402. ROOK B Comcast supra CENSORSHIP AND FREEDOM OF EXPRESSION OF FREEDOM AND CENSORSHIP However, in See infra 199 , 77 196 Weiss, 47 U.S.C. § 154(i) (2006). Comcast Corp. v. FCC, 600 F.3d 642, 645 (D.C. Cir. 2010). The Communi- Comcast Corp. v. FCC, 600 F.3d 642, 645 at 650. at 661. See Id. See Brand X Internet Servs. See Id. See and if the FCC cannot regulate network management by internet regulate network management and if the FCC cannot 200 Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 975 Nat’l Cable & Telecomms. Ass’n v. Brand 200. 195. 196. 199. 197. 600 F.3d 642 (D.C. Cir. 2010). 198. 201. fall under the statutory Of course, this assumes that social network websites 194. 202. The FCC responded to M K can regulate access to internet content under its “ancillary authority” its “ancillary content under access to internet can regulate I of the Act, under Title even if some kinds of obligations on cable internet providers are within of obligations on cable internet even if some kinds ones at issue in the ancillary authority, the fairly basic the FCC’s Title I case were not. if the FCC did have the authority to regulate the transmission of internet if the FCC did have the authority authority, data under its Title II common carrier held that the FCC failed to argue with specificity its statutory basis to failed to argue with specificity held that the FCC internet data management practices, regulate broadband as necessary to effectuate its specifically delegated functions (which can functions its specifically delegated to effectuate as necessary of telecom- the transmission as regulating and loosely defined be broadly munications). The FCC has, however, recently asserted that the “transmission component” of in- The FCC has, however, recently asserted service” that can be regulated pursuant to ternet service is a “telecommunications whether this interpretation is valid is a matter Title II of the Communications Act, but of open debate. Court has upheld an FCC determination that cable internet service providers (ISPs) Court has upheld an FCC determination are information-service providers. to regulate access to the internet pursuant to its Title I ancillary jurisdic- to the internet pursuant to its Title to regulate access tion, service providers (ISPs) or access to the internet as a whole under Title I, (ISPs) or access to the internet as service providers Title I to regulate the FCC has the authority under it is hard to imagine network websites. access to or discrimination by social definition of an information-services provider, Computing and the internet have traditionally been interpreted as falling in the infor- Computing and the internet have traditionally F. Weiss, Note, mation-service-providers category. Philip Internet Content cations Act defines two categories of entities relevant to the FCC’s authority to regu- cations Act defines two categories of entities carriers and information-service providers. late internet entities: telecommunications See subject to mandatory common carrier regula- (2005). Telecommunications carriers are providers are not. tions under Title II, whereas information-service munications Act of 1934 (as amended by the Telecommunications Act of by the Telecommunications (as amended Act of 1934 munications regulate the internet, authority to FCC lacks explicit 1996), the \\jciprod01\productn\N\NMX\44-1\NMX104.txt unknown 2014] Spring Seq: 41 4-FEB-14 13:06 also debatable. that broadband internet service can be separated into two categories for regulatory C Y 33996-nmx_44-1 Sheet No. 86 Side A 02/06/2014 10:11:19 A 02/06/2014 86 Side Sheet No. 33996-nmx_44-1 33996-nmx_44-1 Sheet No. 86 Side B 02/06/2014 10:11:19 R R , M K 207 C Y [Vol. 44 (May 6, See generally GOV A Third-Way . Rules and Regula- the Court upheld an the Court upheld ROADBAND FCC, 204 B , The Court noted that , See Austin Schlick, 206 . See Red Lion , 395 U.S. at 390, 392. NEW MEXICO LAW REVIEW note 70, at 214. Red Lion Broadcasting Co. v. FCC Red Lion Broadcasting supra The Court justified this holding by noting the scarcity of this holding by noting the scarcity The Court justified , In 205 note 194, at 401–402 & nn.116–21. 203 at 392. at 375. The FCC later repealed the fairness doctrine, noting the increase in ARBER Red Lion Broad. Co. Id. F Id. supra Yet even supposing the FCC has authority to regulate access to so- to regulate access has authority supposing the FCC Yet even 206. 207. 203. 204. 395 U.S. 367 (1969). 205. they are among the data that is transmitted. Thus, the FCC probably does Thus, the FCC is transmitted. among the data that they are FCC regulation known as the “fairness doctrine,” which mandated that as the “fairness doctrine,” FCC regulation known on issues of public fair coverage of opposing viewpoints broadcasters give importance. without the fairness doctrine, “station owners and a few networks would without the fairness doctrine, “station available only to the highest bidders, have unfettered power to make time on public issues, people and candi- to communicate only their own views those with whom they agreed.” dates, and to permit on the air only 2010) http://www.broadband.gov/third-way-legal-framework-for-addressing-the-com- that it can regulate access to the internet cast-dilemma.html. The FCC’s assertion by regulated parties, the House of Represent- under Title II has since been challenged source of ongoing controversy. atives, and legal scholars, and remains a Weiss, opportunities for speech in the broadcast media (with the scarcity itself opportunities for speech in the broadcast of broadcast licenses to only a small traceable to the government’s issuing expressing a fear of “monopolization” group of broadcasting companies), the operation of “unlimited private of the “marketplace of ideas” through open to all.” censorship . . . in a medium not tions Concerning the General Fairness Doctrine Obligations of Broadcast Licensees 102 F.C.C.2d 145 (1985). the availability of information services since Because leaving a broadcasting licensee unregulated would give them Because leaving a broadcasting licensee the FCC could require them to “share broad speech-restricting powers, that the FCC can regulate pursuant to Title purposes: a “transmission” component an “information” component that the FCC II’s common carriage requirements, and authority. can regulate subject to its Title I ancillary Dilemma Legal Framework for Addressing the Comcast cial network websites, it is highly likely that such regulations would be it is highly likely that such cial network websites, recent approach to under the Supreme Court’s found unconstitutional the mid-1990s, the From the late 1960s through media access regulations. speakers with regulations that aimed to provide Court upheld several “much of the nation’s broadcast media due to a fear that greater access to of a small privileged [would] reflect only the views communication system minority.” almost certainly not permit the FCC to regulate social network websites, network social regulate FCC to the not permit certainly almost data— of internet involved in the transmission are not as such websites access to or discrimination issue rules regarding the authority to not have network websites. by social \\jciprod01\productn\N\NMX\44-1\NMX104.txt unknown162 Seq: 42 4-FEB-14 13:06 33996-nmx_44-1 Sheet No. 86 Side B 02/06/2014 10:11:19 B 02/06/2014 86 Side Sheet No. 33996-nmx_44-1 33996-nmx_44-1 Sheet No. 87 Side A 02/06/2014 10:11:19 163 the Court up- the Court 209 , Though the Court’s holding Though the Court’s 212 CBS, Inc. v. FCC CBS, Inc. 208 Turner Broadcasting System, Inc. v. Turner Broadcasting could therefore theoretically furnish at 677–78 (O’Connor, J., concurring in part and Turner , the Court upheld regulations of television upheld regulations , the Court See id. , and Most notably, in Most notably, in CBS the Court also noted that a subsidiary goal of the rule that a subsidiary goal of the the Court also noted the Court rejected the argument that the internet itself the Court rejected the argument , 210 Red Lion 213 215 CENSORSHIP AND FREEDOM OF EXPRESSION OF FREEDOM AND CENSORSHIP , These cases suggest that regulations aimed at preventing a These cases suggest that regulations , 453 U.S. at 672–73. at 648–49. rationale The dissenters disagreed on this point, finding the 214 Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180, 185 (1997). at 643–44. which found The Court remanded the case to the district court, at 387, 396–97. at 389. Red Lion the Court upheld a federal statute commonly known as the a federal statute commonly the Court upheld See See id. Turner Id. Id. Id. 211 As social network websites are now one such important medium for As social network websites are now Following , 214. 213. 215. 521 U.S. 844 (1997). 211. 512 U.S. 622 (1994). 212. 209. 367 (1981). 453 U.S. 210. 208. M K held a federal statute requiring broadcasters to “allow reasonable access requiring broadcasters to “allow held a federal statute time” by candidates of reasonable amounts of to or to permit purchase for federal office. was based primarily on the rationale that the must-carry rule served the on the rationale that the must-carry was based primarily the television broad- of preventing the destruction of legitimate purpose casting industry, FCC was to prevent the loss to public discourse that would be caused by deci- loss to public discourse that would was to prevent the access to local and educational pro- sions of cable programmers to deny gramming. was a “‘scarce’ because the various means of expressive commodity” chat rooms, webpages, news- communicating on the internet, including individuals a multitude of internet- groups, and “mail exploders,” give for the statute content-based. dissenting in part). the must-carry rule unconstitutional, a result that was later affirmed by the Court on the must-carry rule unconstitutional, a result that was later affirmed by the Court appeal. small group of entities from monopolizing access to an important medium small group of entities from monopolizing for speech are constitutional. speech, a constitutional justification for federal regulations that mandate access a constitutional justification for federal is likely to be unavailing for to social network websites. This argument suggested that the scarcity rationale several reasons. First, the Court has cases is no longer applicable in a it embraced in the earlier broadcasting internet. Regarding the internet, in world of cable television and the Reno v. ACLU broadcasting in several other cases. In in several other broadcasting “must-carry rule,” which required cable systems to transmit local com- which required cable systems to “must-carry rule,” broadcasting stations. mercial and public [their] frequency with others and to conduct [themselves] as a proxy or as a [themselves] and to conduct others with frequency [their] which are views and voices to present those with obligations fiduciary by ne- would otherwise, and which of [their] community representative airwaves.” barred from the cessity, be \\jciprod01\productn\N\NMX\44-1\NMX104.txt unknown 2014] Spring Seq: 43 4-FEB-14 13:06 C Y 33996-nmx_44-1 Sheet No. 87 Side A 02/06/2014 10:11:19 A 02/06/2014 87 Side Sheet No. 33996-nmx_44-1 33996-nmx_44-1 Sheet No. 87 Side B 02/06/2014 10:11:19 R M K C Y [Vol. 44 is still note 218, supra , . completely ig- The Overly Active 221 Red Lion refusing to apply 224 222 217 the Court upheld some and its recent treatment the Court held that laws 51 (2010). The Court thus found the found Court thus The Denver Area Educational 223 . AZLETT ET AL , 219 220 216 H , ROP . P see also NTELL . & I Part II.A; ECH NEW MEXICO LAW REVIEW . J. T note 70, at 216. W N See supra supra Thomas W. Hazlett, Sarah Oh & Drew Clark, Thomas W. Hazlett, Sarah Oh & Drew , 9 and its progeny to the internet. and its progeny , at 256–58. at 868–70. ARBER . F at 743–47. at 870. Red Lion —and will backtrack any hope that the Court with it probably See id. See See generally See id. Id. Id. Reno With respect to cable programming, in With respect to cable programming, Even if it is true that opportunities to speak on the internet are vir- on the internet to speak is true that opportunities Even if it Second, a court disinclined to find regulations relating to access to to find regulations relating Second, a court disinclined 218 Miami Herald Publishing Co. v. Tornillo 222. 220. 418 U.S. 241 (1974). 221. 219. between social network websites and newspapers is apt, given the An analogy 218. 217. 223. 518 U.S. 727 (1996). 224. 216. noring the fact that in most cities, opportunities for speech in newspapers noring the fact that in most cities, stations. are even scarcer than those on television the categorical standards the Court had developed in prior First Amend- the categorical standards the Court all “suffer from the same flaws . . . ment cases because such approaches of federal regulations of cable programming. With respect to newspapers, of federal regulations of cable programming. in federal regulations of indecent cable programming, federal regulations of indecent cable mandating access to space in newspapers are unconstitutional given news- mandating access to space in newspapers judgment and control, papers’ need to exercise editorial internet greatly different from broadcasting, and accordingly refused to and accordingly from broadcasting, greatly different internet extend at 94 n.274. arguments in Part II.A regarding freedom of the press and given that social network arguments in Part II.A regarding freedom into a websites, like newspapers, bring together content, distribution, and advertising single business model. Corpse of Red Lion Telecommunications Consortium, Inc. v. FCC Telecommunications Consortium, from tually limitless, social network websites are especially important and dis- especially important websites are social network tually limitless, social and serve a unique in that they from other websites tinguishable effects, at any given In addition, because of network political function. social network web- only a small handful of dominant time there will be importance, limited a scarce resource. Given their sites, making them speech, social net- for restricting especially valuable number, and capacity the dominant flagship thus much more analogous to work websites are average website, chat of yore than they are to the television broadcasters service. But the fact remains that room, or email social network websites constitutional could also draw from the Court’s social network websites constitutional newspapers treatment of access mandates for dead based means through which to communicate. which to through means based \\jciprod01\productn\N\NMX\44-1\NMX104.txt unknown164 Seq: 44 4-FEB-14 13:06 33996-nmx_44-1 Sheet No. 87 Side B 02/06/2014 10:11:19 B 02/06/2014 87 Side Sheet No. 33996-nmx_44-1 33996-nmx_44-1 Sheet No. 88 Side A 02/06/2014 10:11:19 165 817, . The EF 227 . J.L. R 354, 384 (1999) . ICH EV adopts an approach 226 U. M , 31 N.Y.U. L. R Denver Area , 74 United States v. Playboy Entertain- United States v. emphasizing that cable “expands the emphasizing that 229 Free as the Air to Common Use: First Amendment line of cases no longer has much bite, except line of cases no The Electronic Media and the Flight from First Amend- The Electronic Media and the Flight from “was a case about access rights” and that a majority of Red Lion Yochai Benkler, CENSORSHIP AND FREEDOM OF EXPRESSION OF FREEDOM AND CENSORSHIP where the Court invalidated a regulation requiring cable invalidated a regulation requiring where the Court 228 , at 776–77 concurring). (Souter, J., Denver Area But see Jerome A. Barron, at 818. at 818, 826–27. at 740. In a concurrence, Justice Souter expressed concern over the concern over Souter expressed Justice In a concurrence, Id. Id. See See id. Id. 230 225 Taken together, these cases suggest that it is unlikely that the Court Taken together, these cases suggest The Court thus signaled its hesitance to interfere with industries ex- its hesitance to interfere with The Court thus signaled 230. 228. 529 U.S. 803 (2000). 229. 227. 226. 225. M K Court reinforced these messages in Court reinforced ment Group 868 (1998) (arguing that Justice Breyer’s opinion in 868 (1998) (arguing that Justice Breyer’s where “[a]ccess rights must be weighed against the free speech rights of the cable where “[a]ccess rights must be weighed operator”). Constraints on Enclosure of the Public Domain (arguing that capacity to choose” and expressing the worry that government regulation capacity to choose” and expressing the ongoing technological “revolu- would endanger the potential of tion.” justices in the case “treated decisions by cable operators not to carry programming as justices in the case “treated decisions by cable operators not to carry programming was a ‘censorial,’ and acknowledged that the availability of access to such a medium question of constitutional moment”). operators to scramble pornographic channels or to limit programming on pornographic channels or to operators to scramble certain hours, those channels to Court’s making a strong pronouncement on First Amendment principles First Amendment on a strong pronouncement Court’s making technology is in a state of flux. while communications would hold regulations mandating access to social network websites con- would hold regulations mandating to appear to undermine any claim that stitutional, as these cases appear within an important medium for the scarcity of speaking opportunities dispositive, and they suggest that the communication is constitutionally private property rights in industries Court is very hesitant to tread on and development, as the social network characterized by rapid innovation is certainly justifiable, as access website industry surely is. Such hesitance risk of stifling innovation on social net- regulations would run a very real periencing rapid change, and strongly implied that the scarcity rationale change, and strongly implied that periencing rapid underpinning the ment Doctrine: Justice Breyer’s New Balancing Approach ment Doctrine: Justice Breyer’s New Balancing to the extent that the Court will now weigh the public’s access rights the Court will now weigh the to the extent that companies. of private telecommunications against the interests [in that] [t]hey import law developed in very different contexts into a new into contexts very different in law developed import [t]hey [in that] to allow flexibility necessary and they lack the environment, and changing without sacri- problems very serious practical to respond to government to pro- is designed ideas the First Amendment free exchange of ficing the tect.” \\jciprod01\productn\N\NMX\44-1\NMX104.txt unknown 2014] Spring Seq: 45 4-FEB-14 13:06 C Y 33996-nmx_44-1 Sheet No. 88 Side A 02/06/2014 10:11:19 A 02/06/2014 88 Side Sheet No. 33996-nmx_44-1 33996-nmx_44-1 Sheet No. 88 Side B 02/06/2014 10:11:19 R M K 232 C Y [Vol. 44 697, 701–02, 757 (2010) . 353, 357, 416 (2012) (argu- . EV EV . L. R . L. R ASH ENN Free Speech and the Myth of the Internet T . W EO note 49, at 7 (arguing that the digital revolu- , 79 G supra , 78 , CONCLUSION NEW MEXICO LAW REVIEW The New Scarcity: A First Amendment Framework for Regu- The New Scarcity: A First Amendment Framework and would likely make it more difficult for social net- for social difficult it more make would likely and Digital Speech 231 Balkin, John Blevins, As both a matter of constitutional doctrine and general policy, doctrine a matter of constitutional As both 233 See See Social network websites present us with a strange juxtaposition: on present us with a strange Social network websites 233. network websites could admit- Extending First Amendment scrutiny to social 232. 231. (arguing that the internet cannot be experienced except through intermediaries and (arguing that the internet cannot be experienced except through intermediaries by that the Court’s jurisprudence recognizes “that the exercise of editorial discretion speech intermediaries facilitating electronic communication serves important free values”). and tedly also lead to both of these negative effects, but would likely be less intrusive less likely to ossify over time than administrative rules. ing that subjecting regulations of social network websites to higher First Amendment ing that subjecting regulations of social “unnecessary and harmful regulatory scrutiny will protect innovation from intervention”). work websites to organize, sort, and filter content, which is one of the content, which sort, and filter to organize, work websites experiences users’ internet add value to ways in which they primary then, the case for such access regulations stands on shaky ground. Pursu- on shaky ground. regulations stands case for such access then, the to court-recognized access regulations as an alternative ing federal media on social network protections for communications First Amendment ill-advised. websites is therefore the one hand, social network websites are incomparably open and toler- network websites are incomparably the one hand, social other hand, they are of all kinds, and on the ant venues for expression of censorship, both zones where the threat essentially Constitution-free if other actors such as state courts, overt and subtle, looms large. Even willing to step in to protect users of state legislatures, or Congress are anticipated by this article may social network websites, the censorship of online speech. As speech in our nonetheless jeopardize the future our parks increasingly becomes streets, on our sidewalks, and within social network websites, one cannot eclipsed in importance by that on of constitutional protections that com- help but be troubled by the lack may face as a consequence of the munications on social network websites are willing to take a fresh perspective state action doctrine. But if courts the state action doctrine in light of the on the public function exception to Amendment protections to commu- strong arguments for extending First tion “brings to the forefront the importance of organizing, sorting, filtering, and limit- tion “brings to the forefront the importance cultural power of those who organize, sort, ing access to information, as well as the Yoo, filter, and limit access”); Christopher S. as an Unintermediated Experience work websites, work potential for time creates the so at the same their power to do (even if abuse). \\jciprod01\productn\N\NMX\44-1\NMX104.txt unknown166 Seq: 46 4-FEB-14 13:06 lating Access to Digital Media Platforms 33996-nmx_44-1 Sheet No. 88 Side B 02/06/2014 10:11:19 B 02/06/2014 88 Side Sheet No. 33996-nmx_44-1 33996-nmx_44-1 Sheet No. 89 Side A 02/06/2014 10:11:19 167 CENSORSHIP AND FREEDOM OF EXPRESSION OF FREEDOM AND CENSORSHIP M K nications on social network websites, perhaps the fears expressed in this expressed the fears perhaps websites, social network on nications of online for the future into brighter hopes be converted article can speech. \\jciprod01\productn\N\NMX\44-1\NMX104.txt unknown 2014] Spring Seq: 47 4-FEB-14 13:06 C Y 33996-nmx_44-1 Sheet No. 89 Side A 02/06/2014 10:11:19 A 02/06/2014 89 Side Sheet No. 33996-nmx_44-1