We Can’t Chat: Can California Constitutional Jurisprudence Strike the Correct Balance between Free Speech and Private Property Rights?

On January 8, the Citizen Power Initiatives for China (CPIFC), along with six anonymous plaintiffs, sued Tencent America LLC for its censorship practices on the social media app WeChat. The suit was filed as a class action in the Superior Court of California in Santa Clara County. Due to the case’s complex-litigation status, it is currently still under case management. The first hearing does not take place until May 2021. The complaint alleges that the app blocks and deletes messages and posts “perceived as critical of the Party-state,” and speech infractions have led to “blocking, suspension or deletion” of the offender’s account, and harassment by state actors. As a result, the complaint alleges financial and psychological injuries.

Most interestingly, the plaintiffs’ anti-censorship claims are premised on the California Constitution, instead of the better-known free speech protection granted under the First Amendment to the U.S. Constitution. I have previously discussed that due to the state action doctrine, First Amendment jurisprudence does not protect people from censorship by social media platforms, particularly “Super Apps” such as WeChat. For strategic purposes, the CPIFC constructed the case with only California residents, so that the case is more likely to remain in the state court system. The question, then, is whether the California Constitution, as interpreted by California state courts, will provide a different answer to the social media free speech issue compared to its federal counterpart.

First, with regard to free speech, the California Constitution has significant textual differences than First Amendment. The federal constitution provides that “Congress shall make no law. . .abridging the freedom of speech.” The “Congress shall make no law” language is of particular importance, as the Supreme Court most recently explained in Manhattan Community Access Corporation v. Halleck: “In accord with the text and structure of the Constitution, this Court’s state-action doctrine distinguishes the government from individuals and private entities.”

In contrast, Article I, Section 2 of the California Constitution states that “[e]very person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. . . .” Arguably, the language in the federal constitution reflects an early distrust, fueled by the desire to continue to subordinate the Blacks in the south, of an all-powerful national government. Therefore, it’s reasonable to presume that the “Congress shall not” language was also a result of the fear of overreaching federal power. As a result, adding a state action requirement to speech liberty protection may be reading too much into the constitutional text. In other words, it was more likely “Congress shall not (to protect State sovereignty)” than “Congress shall not (but non-governmental entities may.)”  Either way, over the years the Supreme Court established a bright-line rule that First Amendment liability requires government action.

The California Supreme Court adopted a different approach to free speech, however. In Robins v. Pruneyard Shopping Center, a seminal case, the court held that the California Constitution protects speech in shopping centers even when those centers were privately owned. In Pruneyard, high school students set up a table in a mall’s central yard and solicited support for their opposition to a United Nations anti-Zionism resolution. The mall sent security guards to remove the students, who left but later filed suit under Article I, Section 2 of the California Constitution. The California Supreme Court held two things. First, that federal constitutional jurisprudence did not grant property rights absolute protection against free speech claims. Second, that the California Constitution protected free speech in privately owned shopping centers. The U.S. Supreme Court affirmed, holding that the California decision did not violate the shopping center’s federally protected property and free speech rights.

Pruneyard remains good law, despite significant pruning over the years. In Golden Gateway v. Golden Gateway Tenants Association, the California high court made clear that, from a doctrinal point of view, the state’s constitutional protection of free speech—although broader than its federal counterpart—still contained a state action limitation. Instead of eviscerating the federal limitation, California law merely imputed a state action status onto private property with a certain level of “public character.” In the court’s words, “the actions of a private property owner constitute state action for purposes of California’s free speech clause only if the property is freely and openly accessible to the public.” Applying this to the case at bar, the court denied a tenant association’s right to free speech in their apartment building.

Golden Gateway might be explained as an attempt to limit Pruneyard in light of the California Supreme Court’s shifting ideology. That attempt, however, was one vote short of garnering the majority in Fashion Valley Mall, LLC v. NLRB, when the court reaffirmed Pruneyard and upheld a labor union’s right to protest in a privately owned shopping mall, entirely overlooking the potential limitations created just six years earlier by Golden Gateway. Five years later, the court further clarified Pruneyard in Ralphs Grocery Co. v. United Food & Commercial Workers Union Local 8. The decision held that in order to be a “public forum,” an area on a private property “must be designed and furnished in a way that induces shoppers to congregate for purposes of entertainment, relaxation, or conversation.” Therefore, the court held that a union’s protest activity immediately outside a store’s entrance—which lacked seating and primarily served as an entrance and exit for customers—was not protected by the California Constitution.

The application of Pruneyard and its progeny to social media platforms will be a matter of first impression for California state courts. The only decision that considered the issue was issued by a federal judge in 2014. In hiQ Labs, Inc. v. LinkedIn Corporation, Judge Edward M. Chen declined to extend Pruneyard to LinkedIn. Chen’s opinion offered general warnings of the sweeping nature of categorizing web services as public forums; but by not giving a more specific explanation, the opinion might be better understood as a deference to a future decision from a higher court.

In the meantime, several scholars have audaciously imagined a world where social media platforms, like shopping malls, become subject to speech liberty laws. A student comment suggested that if states begin to regulate social media censorship in a Pruneyard manner, platforms like Facebook would restrict their content-based regulation, while their manner-based regulation (crass language, violence, slurs) would remain in place. Jonathan Peters praised California’s functional definition of “public space” as opposed to the federal high court’s categorical definition based solely on ownership. I have made a similar point that private property has long been the shield behind which economic and social oppressors throughout U.S. history have hidden. If the state action limitation serves any legitimate purposes, it might be better described as a protection of the private sphere, not privately owned public sphere. In an age where social media platforms actively induce users to share their views, from which activity the platforms profit lucratively, it is hypocritical, if not absurd, that private ownership, of all things, becomes the excuse for infringing on the liberty to speak.

On the flipside, another student note warns that Section 230 of the Communications Decency Act may preempt state courts from regulating platform censorship under the Supremacy Clause. The note correctly cites to Sikhs For Justice v. Facebook, where the Ninth Circuit affirmed a lower court’s dismissal on Section 230 grounds. However, the plaintiffs did not allege a violation of the California Constitution. In addition, while a later decision again dismissed a challenge to Facebook regulation based on Section 230, neither case discussed Section 230’s effect on constitutional claims. Simply put, Section 230 provides immunity for Internet service providers against civil liabilities when the provider acts like a publisher. But no California court- state or federal- has ruled on the federal statute’s effect on either federal or state constitutional violations.

Thus, the WeChat class action involves a lot of uncharted territory. If California extends free speech protection to social media users, the case would bear striking resemblance to the students’ political expression in Pruneyard. Like the shopping center, WeChat is open to public. The speech that WeChat targets is also often political, which in both Pruneyard and Fashion Valley Mall heightened the need for judicial intervention, regardless of whether it takes place on public or private property. And WeChat, unlike the store in Ralphs Grocery, offers the “Moments” function precisely for “purposes of entertainment . . . or conversation.”

Moreover, WeChat is an easy case for finding content-based censorship and therefore presents a valuable opportunity for California to again shape American jurisprudence on civil liberties without creating too much uncertainty for the tech industry. In ruling against WeChat, California does not need to decide whether social media networks violated the California Constitution when they banned Donald Trump for inciting insurrection. Banning Trump will likely be categorized as content-neutral censorship, which in California is reviewed with intermediate scrutiny and is allowed as long as any legitimate concern exists. By contrast, WeChat operates, at the behest of a one-party government, under an ideology called free speech with Chinese characteristics—which under the more common standards is just content-based censorship. That is, while Twitter can make a compelling case that its moderation only targets incitement of violence, the same cannot be said about WeChat, where the government’s nationalist propaganda roam free while seemingly peaceful discussions of civil rights are often censored “due to local regulations.”

On the one hand, there is a good argument against extending Pruneyard to social media. At the core of the Pruneyard court’s decision is the sociological finding that by the 1970s, shopping centers had become the new “town centers” for people to exchange ideas. But there are two ways to interpret this. On the other hand, the ruling could mean that anywhere that a lot of political discourse takes place is the new town center. By this logic, social media’s place in contemporary political discourse should be duly recognized as the new town center. Another view factors in the geographical necessity to engage in political discourse at shopping centers. One practical challenge that the students in Pruneyard had in getting their message out was the limited venues they had. In a subtle way, the Pruneyard decision was a poignant commentary on how consumerism led to a decline in political participation, and the decision to protect free speech in private shopping malls was an unfortunate sociological necessity. Understood this way, Pruneyard does not easily extend to social media, because of the sheer volume of alternatives available for Internet users. If banned on Twitter, a user can easily switch to Facebook, TikTok, or even Myspace. That is a luxury that high school students certainly did not have in 1970s.

Is this difference enough to lead to the WeChat users’ loss? Imagine a privately owned shopping center in eastern Los Angeles County, with a giant chain Asian supermarket, various Asian eateries, and herbalist pharmacies. Suppose a group of local residents assembles in attempt to communicate a message that may be disfavored by the Communist Party of China. The shopping center, affiliated with certain Chinese state-owned capital, shuts down the assembly. Under Pruneyard, the shopping center cannot do this. It is no use to argue that the group can simply travel to a different shopping center. Thus, in this upcoming litigation, WeChat must answer how the Internet differs from a brick-and-mortar property such that social media platforms deserve special treatment. They must offer a reason why, as technological powers expand, rights conferred by the state constitution to the common people should instead shrink. They need to demonstrate how their censorship algorithms contribute to social welfare such that it deserves a pro-innovation ruling. Above all, they must convince the California courts, of all governments, why it should uphold the property rights of an entity that puts its residents through content-based censorship in 2021, at a critical historic juncture where the diversity of voice is needed more than ever.

Christopher Gao: Berkeley Law 2021, Associate Editor of the California Law Review, Vol. 109.