The Supreme Court is currently hearing two cases in which social media companies challenge the constitutionality of Texas and Florida laws that require them to host content that the platforms would prefer to exclude. The question before the Court is whether these laws violate the free speech clause of the First Amendment. But, in a recent Reason In an article, Ethan Blevins of the Pacific Legal Foundation, one of the nation’s leading public interest law firms that litigates takings cases, argues that they also violate the Takings Clause of the Fifth Amendment:
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 intend 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….
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. Similarly, just a few years ago the Supreme Court ruled that California had to compensate employers after forcing them to allow union representatives onto their property.
I very much agree and have previously made a similar argument here:
The Takings Clause prevents the government from taking “private property” without paying “just compensation.” In his 2021 ruling Cedar Point Nursery v. Hassidthe Supreme Court has ruled (correctly, in my opinion) that even a government-imposed temporary “physical occupation” or invasion of private property counts as a taking per se….
Florida and Texas’ social media laws also represent a clear attack on the right to exclude. No one doubts that the Twitter site and its various features are the private property of Twitter. And the whole point of the Florida and Texas laws is to force Twitter and other social media companies to grant access to users and content that the companies would prefer to exclude, particularly various right-wing users. Just like the appellants did Cedar Point wanted to ban union organizers from their land, so Twitter wants to ban some content that it finds abhorrent (or that might offend or annoy other users)….
To be sure, there are obvious differences between virtual property, such as a website, and more conventional physical property, such as that involved in Cedar Point case. But the Taking Clause still applies to both. If Texas decided to take over the Twitter site, exclude current users, and instead fill it with content praising the policies of the state government, it would obviously be a takeover, just as if California decided to take over the land of the Cedar Point nursery. Likewise, requiring Twitter to host unwanted content qualifies as an occupation of its property, as does requiring a landowner to grant access to unwanted users…
It could be argued that forcing a website owner to host unwanted users is not really a “physical occupation”, because the ownership is virtual in nature. But websites, including large social media companies, use physical server space. All things being equal, a site with more user-generated content requires more space than one with less. Even regardless of the connection to physical infrastructure, it seems to me that the occupation of virtual “real estate” is analogous to the occupation of land. Both are valuable forms of private property from which the owner generally has the right to exclude.