Do Subscribers Have Free Speech Rights Against Facebook?

PHUTATORIUS
A few posts ago I wrote that "there is no free speech issue" when Facebook — which is not a government actor — censors the expression of its users. I may have spoken too fast. What I wrote is generally true, but you see, Facebook — like most serious-minded dotcoms — is based in California. And California is the home of the famous/infamous (pick a side) Pruneyard decision.

If you surveyed a crowd, and you asked each respondent to tell you what's special and unique about California, I don't doubt you'd get all sorts of answers. If someone in that crowd were a lawyer, and that lawyer were very much a dork, he might mention Robins v. Pruneyard Shopping Center, a 1979 decision of the California Supreme Court.
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In Pruneyard, student activists sued the Pruneyard Shopping Center, a 21-acre privately-owned shopping mall, after mall security guards kicked them out for violating Pruneyard's rules against leafleting and petitioning on its premises. The California Supreme Court held that the students had a limited state — not federal — constitutional right to engage in political speech on Pruneyard's property. And it went on to write that Pruneyard violated that free speech right.

Driving the Court's thinking was its concern that traditional public market spaces — the old "Main Streets" downtown — were giving way to privately-owned shopping centers. The justices thought that the speech rights California citizens enjoyed in these Main Street spaces would lose quite a bit of their heft if a town's center of gravity shifted to a mall and the mall's ownership were able to restrict speech on mall property.

The Pruneyard decision was controversial at the time (it went up to the Supreme Court); it's controversial now (some California Supreme Court justices want to overrule it); and not a single state has followed California's lead on this issue. Despite all this, it remains the law in California that although most private property owners can invite and exclude whomever they please, the select few who manage vast, populated public spaces — like shopping malls — may not infringe the free speech rights of the visiting public, unless that speech would "interfere with normal business operations."

Enter Facebook. Facebook isn't a mall: the space at issue here isn't "physical" — it's comprised of cyberspace (or server space, depending on your point of view). But that space provides a public forum for more than 150 million subscribers. Contrast Pruneyard Shopping Center, with its piddling 25,000-per-day foot traffic. The space Facebook has created is commercial space, to be sure, but what Facebook is selling in that space is a communications service. That is, it hasn't just invited its millions of users to Facebook to shop, like Pruneyard did; we're summoned to Facebook to communicate with one another. The rationales under California law for extended free speech protection to Facebook's subscribers are arguably even stronger than those discussed in Pruneyard.

I leave it to the commenters to discuss whether or not it makes for good policy, but legally it seems a no-brainer that the Pruneyard principle applies to any well-trafficked online forum that (1) cultivates user-generated content and (2) is based in California. That doesn't mean Burger King gets to mount a core attack on Facebook's business model: under Pruneyard Facebook doesn't have to tolerate users who disrupt "normal business operations. But if Facebook continues down its current censorious path, it could find itself in California state court — and it could lose.