Free Speech Expert: Big Tech Platforms Are ‘Public Accommodations,’ Cannot Restrict Free Speech

An illustration picture taken in London on December 18, 2020 shows the logos of Google, Apple, Facebook, Amazon and Microsoft displayed on a mobile phone and a laptop screen. (Photo by JUSTIN TALLIS / AFP) (Photo by JUSTIN TALLIS/AFP via Getty Images)
JUSTIN TALLIS/AFP via Getty Images

Randy Barnett, a nationally recognized Georgetown University Law professor, said during a Federalist Society forum Thursday that big tech platforms have become “public accommodations,” meaning they cannot discriminate against Americans using them.

The Federalist Society for Law and Public Policy hosted a panel of First Amendment experts to discuss the degree to which Americans need access to social media platforms in the 21st Century, much in a similar manner to how civil rights law declared all Americans should have access to restaurants and lodging in the 20th.

Barnett contended that social media platforms have become so essential to daily living in the United States that they need to be treated as public accommodations.

Public accommodations are businesses that offer goods and services to the public that cannot discriminate. Title II of the Civil Rights Act of 1964 prohibits public accommodations from discrimination based on race, color, national origin, and religion.

Barnett said that big tech platforms had become a public accommodation along the lines of non-governmental entities that states typically regulate. He explained:

Just as restaurants and hotels or public accommodations reach via government on highways, social media platforms can be considered public accommodations that are accessed via the internet … No one is compelled to create a public forum for the expression of speech. It is to their credit, that privately on companies like Facebook and Twitter have successfully created a communications platform that because it is so user friendly, has come to be as a central means of exercising the fundamental privilege of freedom of speech as privately owned restaurants and hotels are to the privilege of travel. By so doing, they have become public accommodations such as restaurants and hotels. [Emphasis added]

The public accommodations argument for free speech on the internet differs from other proposals to crack down on big tech censorship.

Some tech experts have called to repeal or amend Section 230 of the Communications Decency Act to open up liability for big tech companies that unfairly censor free speech on their platforms. Section 230 grants tech companies legal immunity from hosting or removing content from their platform.

Others, such as Eugene Volokh, the UCLA School of Law professor, said during a Federalist Society forum in June that the federal government could use common carrier regulations to prevent big tech companies from censoring Americans’ speech.

Common carrier means that a company must provide its services to anyone willing to pay its fees, such as a telecommunications company.

Barnett continued, saying social media companies’ “universal” status in society makes them a public accommodation.

“The universal nature of social media companies seems to easily to place them into the public accommodation side of why,” he said. “Now, these remarks only scratched the surface of the difficulties raised by regulating social media companies as though they are public accommodations, have not reached any final estimate.”

Barnett did caveat that he is not sure that big tech companies have become public accommodations due to their alleged monopoly status, given that there are technically competitors to big tech companies such as Facebook or Twitter. However, he did note that Republicans in the 1800s developed the theory of “republican citizenship,” in which all citizens should be treated equally.

Barnett said, “Republican citizenship was a privilege of citizenship, was to be treated equally in the public sphere … as a citizen against invidious discrimination.”

He said that if the emphasis is on the rights of an American citizen, then “the fact that you’ve held yourself open to the public would be enough to subject you to public accommodations restrictions.”

Sean Moran is a congressional reporter for Breitbart News. Follow him on Twitter @SeanMoran3.

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