You Can’t Say That!: Public Forum Doctrine and Viewpoint Discrimination in the Social Media Era
The growing prevalence of privately-owned social media platforms is changing the way Americans and their governments communicate. This shift offers new opportunities, but also requires a reinterpretation of the First Amendment’s proscription of government limitations of speech. The public forum doctrine and its proscription of viewpoint discrimination seem particularly stretched by the digital revolution and the development of social media. In ongoing cases, litigants and courts have invoked the doctrine to limit the government’s ability to ‘block’ those who comment critically on government pages—much to the chagrin of those who note the private status of the companies hosting the pages and easy workarounds to ‘blocks.’
This Note argues that, given recent Supreme Court expansion of the concept of viewpoint discrimination, courts may be stretching the doctrine too far. These decisions call into question the constitutionality of government use of platforms that incorporate viewpoint discriminatory rules—such as hate speech bans—into their terms of service.
This Note concludes by proposing a solution: returning to the roots of the public forum doctrine. It argues that the question undergirding public forum analysis should be whether speech is consistent with the maintenance of the forum in which it occurs. If speech can occur without preventing the regular use of a forum, government regulation should be prohibited. If not, the government can— and should—take reasonable steps to maintain the forum for use by all.