While pundits and lawyers cross swords over free speech on social media, a more hidden but critically important principle is being ignored: property rights. In addition to violating the First Amendment, the rush to force social media platforms to host content also violates the Fifth Amendment, specifically the takings clause.
The Takings Clause states that the government cannot take private property “for public use, without just compensation.” While many are familiar with the clause’s importance when the government wants to take land through eminent domain, courts have also applied this right as a limit on the ability to over-regulate property. For example, if a beach resort required owners of oceanfront property to let the public walk through their yards to get to the beach, that would require compensation, because the regulation effectively eliminates the property owner’s right to exclude, a stone corner of the property.
Likewise, the Takings Clause protects social media platforms from regulations that require them to host content or users they wish to exclude. These platforms have as much right to evict unwanted digital intruders as homeowners do to prevent the government from using their backyard as a public right of way, unless they receive fair compensation. If states want to force social media apps to host users and content against their will, they will have to pay for it.
Both state and federal laws already treat online platforms as property. All states criminalize unauthorized access to computer systems, often expressly framing these crimes as trespassing. Platforms defend their territory with encryption, authentication, firewalls, terms of service and other digital fences. Laws that establish online platforms as protectable property, along with the fortifications of the platforms themselves, clearly classify them as “private property” under the Takings Clause.
Laws that require online platforms to accept certain content or users that effectively invade private property. And courts have ruled that when the government gives third parties access to private property without the owner’s consent, this requires compensation. The federal government had to pay the owner of a private marina in Hawaii before it could be forced to allow public boating access. Likewise, just a few years ago the Supreme Court ruled that California had to do so compensate employers after forcing them to allow union representatives access to their property.
These precedents apply to content moderation laws such as those currently challenged on First Amendment grounds. The Texas law, which prohibits “censor[ing] a user, a user’s expression, or a user’s ability to receive another’s expression” depending on the point of view, does to digital spaces what illegal regulations do to physical spaces: denies platform rights to determine its occupants.
It could be argued that digital exclusions are not as tangible as physical ones. Yet imagine a law requiring private businesses to display campaign signs in their store windows. This law would not only violate businesses’ right to speak; it would also clearly violate their property right to control their own space.
Supporters of social media regulation might point to the Supreme Court’s decision Pruneyard Mall vs. Robins, in which the Court rejected a collections claim from a shopping center forced to allow activists to distribute flyers. The Court found that few activists would not significantly undermine the essential purpose of a shopping center. The Court recently underlined this plum tree it was an exceptional case because malls are “generally open to the public” and don’t have the kind of terms of service that govern social media platforms.
plum tree was wrong to deny shopping centers the right to exclude, but regardless of that decision, online platforms are not public shopping centers. The main function of a shopping center is to invite the public to shop. The essence of social media is speech and content. Interfering with a platform’s ability to control content impacts its core purpose. Even owners of traditional public spaces can exclude activities that contradict the purpose of their business. Social media platforms should be granted similar rights under property law.
A victory under the takings clause would mean the government cannot require social media platforms to host all content unless they pay for the privilege. Compensation may be difficult to calculate, given that the interference is ongoing and the economic effects are complex. Whatever the dollar amount, politicians will have a hard time convincing taxpayers to commit to a continued flow of money from their pockets to Big Tech. A victory with the takings clause would likely cause many regulators to reconsider their strategies.
As early abolitionist Arthur Lee once said, property is the “guardian of every other right.” Ownership offers a personal domain free from undue influence or control: spaces that each of us can shape to reflect our values. In championing this principle for online platforms, we uphold the foundations of freedom and innovation.