Document Type

Working Paper

Publication Date

11-5-2018

SSRN Discipline

Economics Research Network; Legal Scholarship Network; Law School Research Papers - Legal Studies; Law & Society eJournals; Law & Society: Public Law eJournals; LSN Subject Matter eJournals; Constitutional Law, Jurisprudence & Legal Philosophy eJournals; Political Science Network

Abstract

In order to facilitate the process of democratic deliberation the Warren Court deployed the First Amendment to create an easement for wouldbe speakers who wished to use privately owned shopping centers and malls for protest activity Logan Valley was part of a larger broader effort to use the First Amendment to create positive rights of access to public spaces essential for the exercise of expressive freedoms This chapter which comprises part of larger booklength project The Disappearing First Amendment forthcoming Cambridge University Press 2019 argues that Logan Valley's real significance was not so much requiring access to "shopping malls" as such for speech activity but rather was addressing in a meaningful way the serious risks that privatization of the political marketplace of ideas presents to the process of democratic deliberation Today we face a very similar problem associated with private ownership of collective virtual spaces for deliberative democratic discourse The chapter argues that a similar First Amendmentbased solution is needed to address this growing problemTo be sure the primary problem today no longer relates to shopping centers Instead the problem arises from the unfettered censorial powers currently enjoyed by dominant social media platforms such as Facebook Twitter YouTube and Instagram as well as to dominant search engine providers such as Google and Bing Dominant social media platforms constitute critical modalities for contemporary democratic discourse and dominant search engine providers control the means that citizens use to access content on the web Continued reliance on selfregulation by these entities is both unwise and ineffective Instead as in Logan Valley the judicial creation of free speech easements to privately owned property to safeguard the process of democratic deliberation would provide a sound and perfectly constitutional solution that ensures meaningful access for all wouldbe speakersJust as the political parties were required to observe certain constitutional rules because of their stranglehold on the electoral process so too these private entities should be required to honor certain constitutional guarantees because they voluntarily play an integral role in the electoral process Moreover we need not embrace an "all or nothing" approach to imposing First Amendment easements on to private property whether real or virtual Instead we could imagine a virtuous mean between the two extremes of unfettered deference to the managerial preferences of profitseeking private property owners and the unthinking application of constitutional values across the board to entities that perform a function integral to the process of democratic selfgovernment Logan Valley itself imposed only limited First Amendment obligations on private shopping mall owners Adopting a similar approach to ensuring access to dominant social media platforms and search engine providers would arrest the gravest dangers associated with unlimited private censorial powers over dominant social media platforms and search engine providers

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