You got Zuckerberged! Did Facebook violate your freedom of speech rights?

My Facebook friend “Nancy” noticed that a status update she posted last month has since disappeared. Nancy is a reasonable person, but she is also a passionate and sometimes outspoken advocate for children. Her post criticized the Catholic church’s protection of child-molester priests. While she can’t be sure, she speculates that someone was offended by the post and reported it to Facebook’s community standards team, who removed it.

Nancy’s post, while certainly not flattering to Catholic church leadership, did not contain foul language or offensive slurs against Catholics, and yet Facebook removed it anyway.

Can they do this? What about freedom of speech?

The First Amendment

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.

U.S. Const. amend. I

You’ll note right away that it begins: “Congress shall make no law….” Well, Facebook isn’t “Congress,” so… end of story, right? Facebook is a private (albeit publicly traded) company. If Congress isn’t directly telling you to shut up, the First Amendment doesn’t apply, does it?

It sounds like a simple question, but it requires this long answer:

Not just Congress

When we complain that Congress has passed a law that is “unconstitutional,” what we’re specifically saying is that Congress has passed a law that, if enforced, would violate our constitutional rights—including our first amendment right to speak freely, even if that speech is offensive.

For example, Congress passed the Stolen Valor Act in 2005, making it a federal crime for any person to falsely claim that he or she had been awarded a military honor. 18 U.S.C. § 704 (repealed 2012), The Supreme Court struck down the Act in June 2012, holding that the Act violated first amendment free speech protections. U.S. v. Alvarez, 56 U.S. _____ (2012).

(Note to non-lawyers: I can't include the page number here because the volume isn't bound yet, not because I'm too lazy to find the case. Note to lawyers: I always include the date the case was decided as my cite date because I read the original source material, not because I'm unaware that the cite date should be the publication date. For me, the publication date and the decision date are the same. My cites are correct. No need to keep emailing me about this, unless of course you find an incorrect cite. Please email me about that.)

The Fourteenth Amendment applies the Bill of Rights (the first 10 constitutional amendments) to actions of state and local governments, too. This still has nothing to do with Facebook, which is of course not the federal government or a state or local government, unless....

Is Facebook “the government”?

Believe it or not, the actions of some private companies have been held to be unconstitutional government actions.

In 1943, Grace Marsh was arrested and convicted of trespassing for handing out religious leaflets in Chickasaw, Alabama, which was a company town owned entirely by the private Gulf Shipbuilding Corporation. Her case reached the Supreme Court, which held that Marsh’s first (and 14^th) amendment rights had been violated—even though the homes, streets, and sidewalks were owned entirely by the private corporation and not by the government. Marsh v. Alabama, 326 U.S. 501 (1946).

The Court reasoned that the State of Alabama had allowed a private company to own and operate an entire town and to perform all of the functions and activities of a local government. Gulf Shipbuilding, therefore, had the same duties as any other town to respect the constitutional rights of its citizens.

(Fun side note: Chickasaw, Alabama, is no longer a company town but is still going strong as a traditional government-incorporated town in Mobile County. As a history buff, I want to visit their historic shipbuilding district on Mobile Bay. We can all go see the spot where Marsh began! No? Fine, I’ll go by myself.)

The Court appeared to expand its Marsh ruling in the 1960s when it held that the Logan Valley Plaza shopping center violated the first amendment free speech rights when it banned union employees who were picketing a Weis supermarket in the shopping center. Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza, Inc., 391 U.S. 308 (1968, rev’d 1976). The court reasoned that a shopping center is similar to the business district of a company town, so Marsh protections should apply. The court reversed itself in 1976, however, when it held that the management of a private shopping mall did not violate the first amendment rights of union protestors when it banned them from picketing inside the North Dekalb Mall. Hudgens v. National Labor Relations Board, 424 U.S. 507 (1976).

The current state of the law seems to be that of Marsh: For a private company to be held to the same “Congress shall make no law” standard as the government, the private company must perform all of the functions and activities of the government OR it must be so “entangled” with state action that it is essentially the same as the government. See Brentwood Academy v. Tennessee Secondary School Athletic Association, 531 U.S. 288 (2001).

(Alas, while we can easily visit Brentwood Academy or the North Dekalb Mall, we can’t road-trip it to Logan, Utah, to visit the Weis supermarket in Amalgamated. Apparently, it moved across the highway when the new shopping center was built in the 1970s.)

Your best judgment

Facebook is a private company that does not appear to perform the functions and activities of the government, and it’s not entangled with government function in any way, so it looks like Zuckerberg and company can delete your posts at will (particularly if they violate Facebook’s Terms of Service to which every user agrees upon joining Facebook).

Don't forget that we're discussing the very narrow question of whether Facebook can (constitutionally) delete its users’ posts. It can, but that’s not the worst thing that can happen to you. You can’t post malicious, false things about your ex-wife and claim freedom of speech when she sues you for libel, for example—nor can you post embarrassing, drunken pictures of yourself and then expect first amendment protections when your employer fires you from your kindergarten teacher job.