Emory Law Journal


Elijah O'Kelley


Social media platforms like Facebook are increasingly the arbiters of what political viewpoints get the light of day. As more people become active on social media, including using it as a primary news source, and as political speech increasingly moves onto these platforms, they will continue amassing the power to control news narratives, the size of speakers’ bullhorns, and the ideas that get discussed. Moreover, these platforms will likely face increasing external pressures to silence certain viewpoints deemed objectionable or offensive, whatever those views may be. The United States Constitution provides no check on this power. As private actors, social media platforms can ban whatever speech they want, and for whatever reason, subject only to market pressures. Simply, the First Amendment, based on its text and longstanding precedent, does not apply. There may be another way to safeguard speech online, however. This Comment proposes looking to a different source of law, one all too often overlooked in litigation and scholarship: state constitutions. Nearly all state constitutions have free speech clauses that are textually different from the First Amendment in ways suggesting state action requirements can be softened or even jettisoned. Moreover, a handful of states have interpreted their free speech clauses as being broader than the First Amendment and applying to certain private actors—an approach with express approval by a unanimous United States Supreme Court. This case law provides reasoning applicable to a new and modern dilemma: the gravitation of political speech to social media platforms.