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Marsh v. Alabama: Amazon, Google, Apple, and Twitter
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.
That is still the law of the land. Let’s respect it.
Published in General
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
@hoyacon Does the concept and the conclusion in this case have an application in the issues we see relating to the use of services offered to the general public such as facebook and twitter when those services have grown to a level of usage that they can be considered essential for some specified public needs to be met? I know my wording probably does not meet the needed legal expression but maybe you know what I’m getting at.
That seems like a complicated issue. Without reading the case and doing some research, it would just be speculation.
At face value, however, the quote in the O/P seems relevant.
I’m not familiar with this line of thought and would like to know if there was any authority cited for the concept, and think about the extent to which it could be extended to internet “property.”
The question now becomes whether the property opened to the public’s use includes virtual property? I suspect in the case of an individual or group’s use of Facebook or Twitter, this won’t be a great leap for courts to make, particularly as they are “free” services.
But what about Amazon deplatforming Parler? Amazon and Parler had (actually have) a contractual relationship, yet we can claim Parler was one citizen among many hosted on Amazon’s property, and question whether the standards imposed on it were applied to any other “citizens.”
Many interesting questions.
I don’t think Marsh applies to social media. However, there is nothing that stops any state from extending the First Amendment. For example, the mighty state of Texas could require social media platforms with >10M users that do throttling/shadow-banning/blocking of ideas based on fact-checks to display a banner on each screen saying “This social media entity practices content censoring. Click here for more information.”
The cite in Marsh is …
“Cf. Republic Aviation Corp. v. Labor Board, 324 U. S. 793, 324 U. S. 798, 324 U. S. 802, n. 8. Thus, the owners of privately held bridges, ferries, turnpikes and railroads may not operate them as freely as a farmer does his farm.”
Who paid for the development of internet capability?
what I mean is that people are invited free of charge. Their presence on the sites is not, strictly speaking, “free”as they will be bombarded with ads on their feed and a data profile built (and sold), just as the residents of Chickasaw probably had to pay rent.
Yeah, I was really trying to point out that these big tech platforms use a publicly developed and financed platform, the internet, to actually conduct their business. Their very existence derives from a public expenditure.
This, in my mind, raises another issue that I think weakens the “private property” argument even further. Chickasaw’s argument was based on owning the land, i.e. private property. Ownership of real property is not the same as owning truly private property such as something one can move to another location. There is a joint interest in real property, state and provisional owner subject to meeting state requirements. Today’s platform providing entities are not sole proprietorship’s but they are publicly held corporations, are they not?
On the one hand: I have always been uncomfortable with this line of reasoning. If I create something and own it, I should have control of it. If I open it up for others to use (with my permission), I still own it. If it becomes wildly popular, to the point that society comes to depend on it, why should that mean I can no longer do with it as I please? Why should I be punished for my success? If the owners of Amazon or Twitter decided, tomorrow, to shut down their services, the government has no power to compel them not to do so. Why then should the government have the power to tell them how to run their businesses while they’re in operation?
On the other hand: I am deeply troubled by the policies these services have adopted. The aims of the First Amendment are as valid as they have ever been, but unfortunately the amendment itself is becoming irrelevant. The Founders could not have anticipated that there would be a time when private parties would possess the ability to control public discourse.
I wish I had an answer for this. I find both arguments equally compelling, and I don’t know how to reconcile them.
Also brings to mind what exactly is proprietary? The coding for the application? Data derived from members? Their “presence” on the site? Hmm, now I’m thinking of laws concerning squatting (don’t need to go there with discussion).
An argument for action to curtail violence is a good moral argument. An argument to curtail political speech in an arena otherwise open to all is not a good moral argument.
Each state with a Republican legislative majority must immediately pass a law making political/ ideological discrimination illegal.
Biden’s nominee for the DOJ Civil Rights Division
Marsh vs Alabama was used as a precedent by Prager University in their lawsuit against YouTube. It was rejected by the 9th Circuit. I don’t know whether or not an appeal to the Supremes is in process.
Not confidence inspiring. Based on the little I’ve read and heard of her (Clarke’s) prior writing and statements, I’m not having much success imagining her spirited defense of free speech. There was a day when a Lefty lawyer’s dream would have been to have the opportunity to take on mega-corporations on First Amendment grounds. But those days are gone. The Berkeley free-speech movement is dead.
I read somewhere that platforms that censor on the bases of Section 230 of the Communications Decency Act can be considered State Actors, therefore subject to suits on First Amendment grounds.
It might be worthwhile to look at the actual text of Section 230:
https://www.law.cornell.edu/uscode/text/47/230
See discussion at my post as Do the Lord Chancellor and the Archbishop Approve:
https://chicagoboyz.net/archives/63087.html
Hopefully everyone here knows that the 9th Circus is the most-reversed court in the country.
Although that too, could change.
Only gets reversed if you appeal it and the appeal is successful, though…
At some point popularity becomes monopolistic, depending on your behavior. And then there is the section 203 problem–you got so popular because the state granted you an exemption from the law (libel law) so you didn’t have to pay a lot of lawyers and editors to monitor your traffic. You claimed to be a platform provider. Then you re-purposed your property and made it edited content, as if you were a newspaper.
The private property argument makes sense ONLY if there are realistic alternatives. Since the first amendment DOES exist, there was clearly a desire to foster open communication. Property rights are a value too. But if the market were to shut down all communication and only the government was free, would the founders be satisfied? Hardly.
You ought to see what is violence these days. Silence is violence, for example. However, Silencing others is not violence.
My mind won’t go there.
That’s OK. It’s a crowded enough place as it is.