The First Amendment only limits governmental actors—federal, state, and local—but there are good reasons why this should be changed. Certain powerful private entities—particularly social networking sites such as Facebook, Twitter, and others—can limit, control, and censor speech as much or more than governmental entities. A society that cares for the protection of free expression needs to recognize that the time has come to extend the reach of the First Amendment to cover these powerful, private entities that have ushered in a revolution in terms of communication capabilities.

While this article focuses on social media entities, the public/private distinction and the state action doctrine are important beyond cyberspace. The National Football League’s reaction to Colin Kaepernick and other players “taking a knee” during the playing of the National Anthem is a pristine example of private conduct outside the reach of the First Amendment under current doctrine. But the nature of those protests couldn’t seem more public and cries out for a re-evaluation of the state action doctrine and the importance of protecting speech.

Speaking of speech, two key justifications for robust protection of the First Amendment right to freedom of expression are the marketplace of ideas and individual self-fulfillment. These justifications don’t require governmental presence. Powerful private actors can infringe on free expression rights just as much as public actors.

The first justification, the marketplace of ideas, is a pervasive metaphor in First Amendment law that posits the government should not distort the market and engage in content control. It is better for people to appreciate for themselves different ideas and concepts. It is traced back to John Milton’s free speech tract Areopagitica (1644): “Let Truth and Falsehood grapple; whoever knew Truth put to the worse in a free and open encounter?”

Individual self-fulfillment, often associated with the liberty theory, posits that people need and crave the ability to express themselves to become fully functioning individuals. Censorship stunts personal growth and individual expansion.

The point here is that when an entity like Facebook engages in censorship, individuals don’t get to participate in the marketplace of ideas and are not allowed the liberty to engage in individual selffulfillment— just like when a governmental entity engages in censorship.

It is true that state action doctrine traditionally limits the application of the First Amendment to private actors. Earlier this year, a federal district court in Texas applied the traditional state action doctrine to dismiss a lawsuit filed by a private individual against Facebook. The court explained that “the First Amendment governs only governmental limitations on speech.” (Nyabwa v. Facebook, 2018 U.S. Dist. LEXIS 13981, Civil Action No. 2:17-CV-24, *2 (S.D. Tex.) (Jan. 26, 2018).)

After all, for about 140 years, the U.S. Supreme Court has explained that the Constitution and the protections it provides— aside from the Thirteenth Amendment’s ban on slavery and involuntary servitude— only limit governmental actors. Thus, traditional legal doctrine provides that private actors are not constrained by the Constitution generally. This is called the “state action” doctrine. It purportedly creates a zone of privacy and protects us from excessive governmental interference.

The Court developed the state action doctrine in the Civil Rights Cases of 1883. This case actually consisted of five consolidated cases in which private businesses egregiously excluded African-American plaintiffs from their privately owned facilities opened to the public (such as movie theaters, inns, amusement parks, and trains) on the basis of race. The plaintiffs contended that such exclusions violated the Equal Protection Clause of the Fourteenth Amendment. However, the U.S. Supreme Court responded somewhat cavalierly “[i]t is state action of a particular character that is prohibited. Individual invasion of individual rights is not the subject-matter of the amendment.” (Civil Rights Cases, 109 U.S. 3, 11 (1883).) The Court said that there were no constitutional remedies available to these plaintiffs and that they would need to rely on the common law state protections. Sadly, there were no such state common law protections either.

Only Justice John Marshall Harlan I, the so-called “Great Dissenter” for his solitary dissent in this case, Plessy v. Ferguson (1896), and other decisions, recognized that his colleagues were allowing the government a free pass to discriminate against persons of a particular race with regard to the use of public facilities. He wrote that the “discrimination practised by corporations and individuals in the exercise of their public or quasi-public functions is a badge of servitude” that Congress could rectify under its powers under the Thirteenth and Fourteenth Amendments. (Civil Rights Cases, 109 U.S. at 43 (1883) (J. Harlan, dissenting).)

But, in 2018, speech takes place online much more so than it does in traditional public forums, such as public parks and streets. People communicate on social networking sites, such as Facebook and Twitter, more than in any offline venues. The U.S. Supreme Court recognized this reality last year in Packingham v. North Carolina (2017): “While in the past there may have been difficulty in identifying the most important places (in a spatial sense) for the exchange of views, today the answer is clear. It is cyberspace—the ‘vast democratic forums of the Internet’ in general, and social media in particular.” (Packingham v. North Carolina, 137 S.Ct. 1730, 1735 (2017).)

In his opinion for the Court, Justice Anthony Kennedy elaborated that the expansion of social media has contributed to a “revolution of historic proportions.” Id. at 1736. In other words, social media networking sites have become the modern- day equivalent of traditional public forums like public parks and public streets.