Marsh v. Alabama. Twitter, Apple and Free Speech

 

With the current flap about Twitter, free speech, Apple and big tech in general, I’m re-posting this piece about the limits of corporate  censorship…

Does ownership convey complete dominion?

The First Amendment does not apply to private parties, only the State, therefore a private business can prohibit speech with impunity.  That’s the familiar argument. What is not so familiar is that that’s not the law of the land. We do respect the rule of law don’t we? Most everyone in America just spent the last week thumping their chests and proclaiming utmost respect for the rule of law. OK, then. Let’s follow the existing law. In a direct conflict between property rights and the rights protected by the First Amendment, the applicable law is contained in the 1946 Supreme Court case of Marsh v. Alabama. Spoiler alert – the First Amendment wins.

The town of Chickasaw, AL, was a “company town” of the old-school meaning. The town was owned by the Gulf Shipbuilding Corporation. It was private property.

A Jehovah’s Witness named Ms. Marsh undertook to distribute religious literature on the sidewalks of Chickasaw. In the stores, the corporation had posted a notice which read as follows:

“This Is Private Property, and Without Written Permission, No Street, or House Vendor, Agent or Solicitation of Any Kind Will Be Permitted.”

Marsh was warned that she could not distribute the literature without a permit, and told that no permit would be issued to her. She protested that the company rule could not be constitutionally applied so as to prohibit her from distributing religious writings. When she was asked to leave the sidewalk and Chickasaw, she declined. The deputy sheriff — an employee of Gulf Shipbuilding — arrested her, and she was charged in the state court with trespassing.

The Court ruled in favor of Marsh and the First Amendment, arguing…

We do not agree that the corporation’s property interests settle the question. … The State urges, in effect, that the corporation’s right to control the inhabitants of Chickasaw is coextensive with the right of a homeowner to regulate the conduct of his guests. We cannot accept that contention. Ownership does not always mean absolute dominion. The more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it.

The opinion of The Court goes on …

Whether a corporation or a municipality owns or possesses the town, the public in either case has an identical interest in the functioning of the community in such manner that the channels of communication remain free.

And

The managers appointed by the corporation cannot curtail the liberty of press and religion of these people consistently with the purposes of the Constitutional guarantees.

And

Just as all other citizens, they must make decisions which affect the welfare of community and nation. To act as good citizens, they must be informed. In order to enable them to be properly informed, their information must be uncensored

That is still the law of the land. Let’s respect it.

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  1. The Reticulator Member
    The Reticulator
    @TheReticulator

    Sounds relevant!

    • #1
  2. David Foster Member
    David Foster
    @DavidFoster

    Prager University used the Marsh v Alabama case against the ‘restricted’ status assigned to its videos by YouTube.  They lost in the District Court and the 9th Circuit, which held that the precedent did not apply to this kind of virtual ‘public square’.  Not sure whether an appeal to the Supremes took place.

    See my post Do the Lord Chancellor and the Archbishop Approve?

    It seems like Common Carrier rules are also relevant here, or should be…if you are running an airline, you may not refuse to carry a passenger because you dislike his political views.  Similarly, a freight railroad cannot refuse to serve a factory because they don’t like its owner.

    • #2
  3. Kevin Schulte Member
    Kevin Schulte
    @KevinSchulte

    Law Smaw. Progs are above the law. 

    You are so last century. 

    Beam  me back Scotty , this century sucks !

    • #3
  4. Mark Camp Member
    Mark Camp
    @MarkCamp

    A rational argument in favor of the author’s position on a controversial question??

    Thanks, Ekosj.  That’s what I pay TPB for: intelligent, fact-based debate of issues, whether I agree with the argument or not.

    We need more of this here.

    • #4
  5. David Foster Member
    David Foster
    @DavidFoster

    Related article at Quillette: Ending Discrimination by Twitter.

     

    • #5
  6. D.A. Venters Inactive
    D.A. Venters
    @DAVenters

    It’s an interesting point, but I’m skeptical that an argument anchored by the Marsh case would carry the day for a person banned from Twitter.  I haven’t researched it thoroughly, so I’m open to other arguments, but I think if a person suing Twitter were to prevail, it would likely be on other grounds.

    First, Marsh, as noted in the OP, was a criminal case.  As important as private property rights were to the decision, the heart of the matter was that a person was being criminally punished for conduct protected by the 1st Amendment.  The company that owned the town, whose property rights were discussed, wasn’t a party to the case. 

    A suit against Twitter for banning someone for expressing a certain viewpoint (speech clearly protected against state action) would come to the court in a very different context.  Rather than a person being criminally punished for ordinary conduct in what, but for the private ownership, was just like a municipality in every other way, the plaintiff in a case against Twitter would just be someone who wanted to say stuff on their platform – with a free account they established voluntarily, choosing that platform from among countless other forums and chatrooms and social media outlets , which bears no resemblance to any kind of public entity, having (presumably) agreed to the terms Twitter provided at the outset. 

    I don’t want to make too much of the criminal v. civil distinction, but its just a different kind of mindset for judges – in a criminal case the judge is mentally primed for considering rights and liberties; in a civil case the judge is mentally primed for a consideration of competing obligations – contracts and expectations, etc…  That gives Twitter a bit of an advantage that the State of Alabama didn’t have in Marsh.  (I’m assuming here the case against Twitter would be a civil one. If Twitter is able to somehow have someone criminally charged for violating its rules -well then that’s a whole different story.)

    But again, probably the biggest obstacle to Marsh being central to an effective argument here, is the nature of the company town vs. the nature of Twitter.  A company town is such an all-consuming entity in the lives of its residents.  The company is doing everything a public municipality typically does.  The Marsh court made a big deal of pointing that  out, and pointing out how many people then lived in company towns.  So when they talked about a private owner opening up his property to the public – a company town does that on a level far, far exceeding what Twitter does.  The court talks about communications remaining open, but again with a company town in mind – where, at least theoretically, the company town controls all the channels of communication, not just one small fraction of it.

    • #6
  7. Ekosj Member
    Ekosj
    @Ekosj

    I’d want to hang my hat on this sentence…

    “The more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it.“

    Twitter, Facebook, Google are directly in the crosshairs of that argument.

    • #7
  8. D.A. Venters Inactive
    D.A. Venters
    @DAVenters

    Ekosj (View Comment):

    I’d want to hang my hat on this sentence…

    “The more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it.“

    Twitter, Facebook, Google are directly in the crosshairs of that argument.

    Yes, I think that’s the language most useful to someone challenging Twitter, Facebook, etc… But it’s pretty vague.  Yes, the owner’s rights are circumscribed, but to what extent?  Those rights aren’t entirely eliminated, just circumscribed in some undefined way.  And how much have social media sites opened up their property for public use?  Well, they let people communicate through it, and that’s about it.   Unlike the company in Marsh, they’re not providing housing, utilities, water and sewer, streets, sidewalks, and other public accommodations, stores and shops, etc…  So, that principle that the court cited in Marsh is certainly helpful, but the facts of the Marsh case may limit that help.

    • #8
  9. Underground Conservative Inactive
    Underground Conservative
    @UndergroundConservative

    I’m less concerned about someone getting kicked off Twitter. I’m more concerned that two companies (Apple and Google) can control how all other companies run their businesses. They can even kick out a company simultaneously and not be charged with collusion. I don’t understand why this situation is so impenetrable. How do you get out of it?  They can destroy all competition at a whim. 

    • #9
  10. Unsk Member
    Unsk
    @Unsk

    I greatly appreciate Ekosj’s post and his research.

    The problem is that censorship of the conservative point of view goes on unabated, despite that ruling for whatever reason as if the Left actually needs a reason.

    In fact the lawsuit against such censorship brought by the AG ‘s of both Louisiana and Missouri has found that 12 count’em 12 different agencies were trying ( and often succeeding ) in censoring the American people- that B Constitutional thingey be dammed.

    • #10
  11. I Walton Member
    I Walton
    @IWalton

    Government remains the problem.  In a company town the company was the government and vice versa.  In any centrally directed state the government is the problem and if giant private companies have open access to it, they are part of the problem  but government is the center.  Centralized power as it has become in the US existed throughout history everywhere.  The key to the US success, both politically, economically and socially was that government was limited.  Now it dominates at every level.    Some want to fix matters by taking control of government, but that won’t work.  We have to reduce government at all levels; unfortunately that  may be impossible, unless we just break up and let vibrant bottom up states show us how it’s done.  China is the problem here as well, but they merely get more aggressive and we weaker.  

    • #11
  12. Stina Inactive
    Stina
    @CM

    D.A. Venters (View Comment):

    Ekosj (View Comment):

    I’d want to hang my hat on this sentence…

    “The more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it.“

    Twitter, Facebook, Google are directly in the crosshairs of that argument.

    Yes, I think that’s the language most useful to someone challenging Twitter, Facebook, etc… But it’s pretty vague. Yes, the owner’s rights are circumscribed, but to what extent? Those rights aren’t entirely eliminated, just circumscribed in some undefined way. And how much have social media sites opened up their property for public use? Well, they let people communicate through it, and that’s about it. Unlike the company in Marsh, they’re not providing housing, utilities, water and sewer, streets, sidewalks, and other public accommodations, stores and shops, etc… So, that principle that the court cited in Marsh is certainly helpful, but the facts of the Marsh case may limit that help.

    It IS the primary disseminator of news, with the circulation of print gone the way of the dodo bird.

    • #12
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