Social Media as Public Utility. The Applicability of Constitutional Norms to Public Accommodations in this Domain

Mr. Justice Strong, Olcott v. The Supervisors, 16 Wall. 678, 694, said: “That railroads, though constructed by private corporations and owned by them, are public highways has been the doctrine of nearly all the courts ever since such conveniences for passage and transportation have had any existence.”

Read this with respect to social media, which, although held privately, function as public utilities. Facebook, Twitter, and other social media companies are analogous to the railroads and telephone systems.

In Township of Pine Grove v. Talcott, 19 Wall. 666, 676, “Though the corporation [a railroad company] was private, its work was public, as much so as if it were to be constructed by the State.”

In Inhabitants of Worcester v. Western Railroad Corporation, 4 Met. 564: “The establishment of that great thoroughfare [railroads] is regarded as a public work, established by public authority, intended for the public use and benefit, the use of which is secured to the whole community, and constitutes, therefore, like a canal, turnpike or highway, a public easement. It is true that the real and personal property necessary to the establishment and management of the railroad is vested in the corporation, but it is in trust for the public.”

Although the establishment and management of social media is vested in the corporation, it is in the trust of the public, and therefore must submit to the authority of the US Constitution and the Bill of Rights. Just as “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances,” neither should corporations acting as public utilities. Only time and place restrictions apply. An actor cannot interfere with another actor’s expressions such that his right is diminished.

It is, therefore, wrong for Facebook or Twitter, etc., to censor any post or comment or remove any user who is not violating constitutional norms. Social media companies, like the conductor in a railroad car, must be neutral in the administration of his duties.

What of our property rights as they pertain to our utterances and creative works? Back to Olcott: “Very early the question arose whether a State’s right of eminent domain could be exercised by a private corporation created for the purpose of constructing a railroad. Clearly it could not unless taking land for such a purpose by such an agency is taking land for public use. The right of eminent domain nowhere justifies taking property for a private use. Yet it is a doctrine universally accepted that a state legislature may authorize a private corporation to take land for the construction of such a road, making compensation to the owner. What else does this doctrine mean if not that building a railroad, though it be built by a private corporation, is an act done for a public use.”

In other words, while our speech acts can be possessed by the corporations establishing and managing public utilities, they are so possessed not exclusively for private use, but also for public use, and the person to whom these speech acts originally belonged should be compensated in some fashion by the corporation acting in the public trust.

It seems to me that the transaction tacitly entered into between users and owners/managers of social media companies so that the former may speak freely is a fee the former pay the latter that takes the form of user content accessible to advertisers and marketers and the subsequent exposure of the user to corporate messaging. Users of social media should not be told how or on what topics to speak any more than a conversation on a railroad car should be censored by the conductor—even as a matter of company policy, as such a policy is illegitimate on constitutional grounds.

Social media has no more right to censor or label user content between parties voluntarily consenting than a cellphone provider does given analogous circumstances. It is not for corporations providing public accommodations to determine access, participation, and utterances on the grounds of content except where that content represents an actual and imminent threat to the safety of concrete and identifiable persons. Cellphone providers do not police the truth content of user utterances on their services. Nor should social media companies.

Published by

Andrew Austin

Andrew Austin is on the faculty of Democracy and Justice Studies and Sociology at the University of Wisconsin—Green Bay. He has published numerous articles, essays, and reviews in books, encyclopedia, journals, and newspapers.

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