The First Amendment as a Source of Positive Rights: The Warren Court and First Amendment Easements to Private Property

The Disappearing First Amendment (forthcoming Cambridge University Press 2019) (Chapter 3)

U of Alabama Legal Studies Research Paper No. 3275655

65 Pages Posted: 5 Nov 2018

Date Written: October 28, 2018

Abstract

In order to facilitate the process of democratic deliberation, the Warren Court deployed the First Amendment to create an easement for would-be 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 book-length 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 Amendment-based solution is needed to address this growing problem.

To 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 self-regulation 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 would-be speakers.

Just 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 profit-seeking 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 self-government. 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.

Keywords: freedom of speech, internet, social media, search engines, state action, First Amendment, Logan Valley Plaze, Lloyd Corporation, Hudgens, Prune Yard, shopping centers, private property, free speech easements, democratic discourse, public dialogue, Marsh, Thurgood Marshall, common carrier duties,

Suggested Citation

Krotoszynski, Ronald James, The First Amendment as a Source of Positive Rights: The Warren Court and First Amendment Easements to Private Property (October 28, 2018). The Disappearing First Amendment (forthcoming Cambridge University Press 2019) (Chapter 3), U of Alabama Legal Studies Research Paper No. 3275655, Available at SSRN: https://ssrn.com/abstract=3275655

Ronald James Krotoszynski (Contact Author)

University of Alabama - School of Law ( email )

P.O. Box 870382
Tuscaloosa, AL 35487
United States

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