Is Facebook violating freedom of expression in California?

When Facebook censors its users and blocks pages from buying ads that Facebook decides is misinformation, it may be violating freedom of expression in at least one state.

Last year, two Facebook pages with competing points of view found themselves with users launching a “reporting” war. The users of We Love GMOs and Vaccines and Health Nut News began mass reporting each other. The two pages were taken down by Facebook multiple times, while the administrators of both watched in horror as their followers ignored their cries to stop.

In 1980, several high school students set up a card table at the Pruneyard Shopping Center in Campbell, CA. The teenagers were gathering signatures for a petition opposing a United Nations resolution against “Zionism”. According to court records they were peaceful, not causing a disruption, and customers were not complaining. A security officer asked them to leave because it was against the shopping center’s rules. The guard recommended they move to a public sidewalk just outside.

For anyone familiar with the United States Bill of Rights it would seem common sense that the mall was in their rights to ask the students to leave. The first amendment of the Constitution states that the government may not prohibit or limit the freedom of speech. Private businesses asking people not to gather signatures on a petition is not the government doing so.

But what happens if a state broadens the right of free expression beyond what the federal government offers? According to the California Constitution:

Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press.

and

[P]eople have the right to . . . petition government for redress of grievances.

The wording goes beyond just saying the government cannot restrict speech, it is instead interpreted as blanket freedom extending beyond just the State. The California Supreme Court ruled that the teens should have been allowed to gather signatures on the private property of the mall.

According to the unanimous decision:

[T]he shopping center by choice of its owner is not limited to the personal use of appellants. It is instead a business establishment that is open to the public to come and go as they please.

While other states have not gone this far, there is a little precedent at the federal level. In 1946 the United States Supreme Court ruled that first amendment rights did apply on outside sidewalks in privately owned company towns. Religious proselytizing would be allowed in company towns.

Facebook, like the Pruneyard Shopping Center, is not limiting its use to that of just Mark Zuckerburg and his employees. While not a brick and mortar business, it is certainly “open to the public” and free to use at will. It is clearly marketed and promoted as a “social” network. So when they censor their users it is entirely possible that they are just “removing people from their property”. Are their community standards any different than rules made by a mall?

One difference could be the terms of service (TOS) Facebook users all agree to when they sign up for the social media platform. Contrary to popular belief, you can sign away certain rights to businesses. Anyone signing a non-disclosure agreement is well aware of that. No one signs a TOS when entering a mall.

But like shopping areas in California, Facebook is not liable for speech on their platform. They already include language in their TOS similar to signs posted by stores in California about separating the business from the views of those expressing themselves.

A New Jersey Supreme Court justice once noted in 1994 that “[M]alls are where the people can be found today.” That same idea certainly applies to social media today where 79% of Americans have a Facebook account.

As more and more of our daily lives become connected to cyberspace, the courts will need to address these issues. Are we going to voluntarily give up our rights to corporations, or begin to demand a consumer bill of rights? Should this issue go to court in California, could Facebook just stop censoring users in that one state or would they be forced to do so worldwide?

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