Recently, we’ve seen a pattern of problems with internet companies. Things are not right. I don’t have to tell you what it is, but you know. Things get banned. People get demonetized. Posts get hidden. Ideologies get enforced. People’s right to speak gets curtailed.
Most Americans want our rights to apply to the ACTUAL world we live in. No one would be happy with the right to travel anywhere, but only on roads that you personally own. No one would be happy with the right to work in a trade, occupation, or industry, but only if you hold the beliefs of your boss. No one would be happy to have the freedom to exercise their religion, but only if your ability to get a job, get sued, or be appropriately categorized by the IRS as a non-profit entity could be curtailed by the fact of your religion.
Nobody wants a mere TECHNICAL and LEGAL ability to enjoy the first amendment. We want ACTUAL freedoms.
But that’s where we run into a problem with big internet businesses. Almost all of our world and commerce has moved to the internet:
- THEY own the sites.
- THEY offer the services.
- THEY have their property rights.
- So, THEY set the rules.
They make the rules, even if we don’t like them. They enforce the rules, because the rules are the rules.
- Private businesses can do what they want to further their interests of their businesses, right?
- The Constitution only governs the government, and not individual citizens, right?
- There is no power in our system that would require a private company like Twitter, Facebook, Google, YouTube, Instagram, PayPal, Apple, or any other company to guard the First Amendment, right?
- We have no ability to make private companies uphold the freedoms guaranteed in our Constitution, right?
Wrong. Totally wrong. Like… this is so wrong, it’s not even CLOSE to correct. And you need to know why.
This post is about internet companies, “company towns,” and Marsh v. Alabama, 326 U.S. 501 (1946).
Chickasaw, Alabama in 1946
Here’s what happened in Marsh v. Alabama.
A Jehovah’s Witness went to the town of Chickasaw, Alabama, doing what Jehovah’s Witnesses normally do:
- Witnessing to others about “Jehovah,”
- Annoying their neighbors in the process,
- Getting arrested because they won’t shut up, and
- Winding up in the Supreme Court of the United States asking for the First Amendment to protect them.
Even a slight review of Supreme Court First Amendment case law will show: They’re surprisingly good at it.
Here is a description of Chickasaw, Alabama from the Supreme Court Decision:
The town, a suburb of Mobile, Alabama, known as Chickasaw, is owned by the Gulf Shipbuilding Corporation. Except for that, it has all the characteristics of any other American town. The property consists of residential buildings, streets, a system of sewers, a sewage disposal plant, and a “business block” on which business places are situated. A deputy of the Mobile County Sheriff, paid by the company, serves as the town’s policeman. Merchants and service establishments have rented the stores and business places on the business block, and the United States uses one of the places as a post office, from which six carriers deliver mail to the people of Chickasaw and the adjacent area. The town and the surrounding neighborhood, which cannot be distinguished from the Gulf property by anyone not familiar with the property lines, are thickly settled, and, according to all indications, the residents use the business block as their regular shopping center. To do so, they now, as they have for many years, make use of a company-owned paved street and sidewalk located alongside the store fronts in order to enter and leave the stores and the post office. Intersecting company-owned roads at each end of the business block lead into a four-lane public highway which runs parallel to the business block at a distance of thirty feet. There is nothing to stop highway traffic from coming onto the business block, and, upon arrival, a traveler may make free use of the facilities available there. In short, the town and its shopping district are accessible to and freely used by the public in general, and there is nothing to distinguish them from any other town and shopping center except the fact that the title to the property belongs to a private corporation.
Now, I know most of my readers aren’t “lawyers,” and it may be difficult to apply 80 year old precedent to our new internet age, but do any of you see ANYTHING here that is analogous to Facebook, Twitter, Google, YouTube, Instagram, PayPal, and Apple?
- Thickly settled
- Shopping districts
- Used to send mail
- The primary shopping center of the town
- Free use of facilities
- Provides services to independent businesses
- Indistinguishable from the community itself except by those familiar with property lines
- Free passage from government streets to company-owned streets
- Completely owned by a private corporation
ANYONE!?!?!? ANYTHING HERE SEEM FAMILIAR!!!????
Marsh v. Alabama
But back to the case. There was a problem in Chickasaw, and here’s what happened:
Appellant, a Jehovah’s Witness, came onto the sidewalk we have just described, stood near the post office, and undertook to distribute religious literature. In the stores the corporation had posted a notice which read as follows:
“This Is Private Property, and Without Written Permission, No Street, or House Vendor, Agent or Solicitation of Any Kind Will Be Permitted.”
Appellant was warned that she could not distribute the literature without a permit, and told that no permit would be issued to her. She protested that the company rule could not be constitutionally applied so as to prohibit her from distributing religious writings. When she was asked to leave the sidewalk and Chickasaw, she declined. The deputy sheriff arrested her, and she was charged in the state court with violating Title 14, § 426 of the 1940 Alabama Code, which makes it a crime to enter or remain on the premises of another after having been warned not to do so. Appellant contended that to construe the state statute as applicable to her activities would abridge her right to freedom of press and religion contrary to the First and Fourteenth Amendments to the Constitution. This contention was rejected, and she was convicted. The Alabama Court of Appeals affirmed the conviction, holding that the statute, as applied, was constitutional because the title to the sidewalk was in the corporation and because the public use of the sidewalk had not been such as to give rise to a presumption under Alabama law of its irrevocable dedication to the public.
In other words, this religious minority was distributing religious material — an activity protected by the First Amendment — INDISPUTABLY on private company property. The company took action to shut that speech down.
Is that legal? What is your guess? Let’s go back to Justice Black’s opinion:
We do not agree that the corporation’s property interests settle the question.
Bravo, Justice Black! Tell me more.
Whether a corporation or a municipality owns or possesses the town, the public in either case has an identical interest in the functioning of the community in such manner that the channels of communication remain free. As we have heretofore stated, the town of Chickasaw does not function differently from any other town. The “business block” serves as the community shopping center, and is freely accessible and open to the people in the area and those passing through. The managers appointed by the corporation cannot curtail the liberty of press and religion of these people consistently with the purposes of the Constitutional guarantees, and a state statute, as the one here involved, which enforces such action by criminally punishing those who attempt to distribute religious literature clearly violates the First and Fourteenth Amendments to the Constitution.
Now, once again, I know none of you hum-drum ordinary citizens are LAWYERS with our extra-learnin’ and stuff, but do you see ANYTHING here about the Gulf Shipbuilding Corporation that might apply to Twitter, Facebook, Google, YouTube, Instagram, PayPal, and Apple curtailing constitutional freedoms? ANYTHING?????
Back to the decision:
Many people in the United States live in company-owned towns. These people, just as residents of municipalities, are free citizens of their State and country. Just as all other citizens, they must make decisions which affect the welfare of community and nation. To act as good citizens, they must be informed. In order to enable them to be properly informed, their information must be uncensored. There is no more reason for depriving these people of the liberties guaranteed by the First and Fourteenth Amendments than there is for curtailing these freedoms with respect to any other citizen.
But what about the property rights of these companies? What about them? Is there anything more you have, Justice Black?
When we balance the Constitutional rights of owners of property against those of the people to enjoy freedom of press and religion, as we must here, we remain mindful of the fact that the latter occupy a preferred position. As we have stated before, the right to exercise the liberties safeguarded by the First Amendment “lies at the foundation of free government by free men,” and we must in all cases “weigh the circumstances and . . . appraise the . . . reasons . . . in support of the regulation . . . of the rights.” Schneider v. State,308 U. S. 147, 308 U. S. 161. In our view, the circumstance that the property rights to the premises where the deprivation of liberty, here involved, took place were held by others than the public is not sufficient to justify the State’s permitting a corporation to govern a community of citizens so as to restrict their fundamental liberties and the enforcement of such restraint by the application of a state statute. Insofar as the State has attempted to impose criminal punishment on appellant for undertaking to distribute religious literature in a company town, its action cannot stand. The case is reversed, and the cause remanded for further proceedings not inconsistent with this opinion.
One Final Difficulty
Now that was nice, but my keen-eyed readers will probably notice that this only applies to the CRIMINAL statute of trespassing. Justice Black made the point that a state like Alabama has the ability to “designate” certain areas as company controlled, and so there is some leeway that companies have in controlling these places and exercising their property rights over these spaces, including who they do and do not allow to use the premises.
This is related to our situation today, because most of the issues involving “shadow-banning” “demonetizing,” and being “locked-out” of things like PayPal or Twitter accounts are not “criminal.” It’s not like the criminal “trespass” conviction that the Jehovah’s Witness was challenging. It is in the civil realm, where someone is not arresting you. It’s just contracts and access and business and whatever. So it seems there is some additional legal legwork here.
Man, that’s disappointing. We were so close in this opinion. If only we had something more. If only there were a concurrence to the majority opinion or something that we could have, which would give some further —
OH YEAH! YOU BET THERE IS!!!
TAKE IT AWAY, JUSTICE FRANKFURTER:
A company-owned town gives rise to a network of property relations. As to these, the judicial organ of a State has the final say. But a company-owned town is a town. In its community aspects, it does not differ from other towns. These community aspects are decisive in adjusting the relations now before us, and more particularly in adjudicating the clash of freedoms which the Bill of Rights was designed to resolve the freedom of the community to regulate its life and the freedom of the individual to exercise his religion and to disseminate his ideas. Title to property, as defined by State law, controls property relations; it cannot control issues of civil liberties which arise precisely because a company town is a town, as well as a congeries of property relations. And similarly, the technical distinctions on which a finding of “trespass” so often depends are too tenuous to control decision regarding the scope of the vital liberties guaranteed by the Constitution.
Chickasaw, Alabama was a “company town.” It was a company town because anybody could go there and go on with their ordinary lives on the “company property.” Normally, people have complete control over their property. But company towns are not normal.
I don’t know why no one has ever noticed this fact before, but it is so obvious, it just slaps you in the face:
WE ALL LIVE IN COMPANY TOWNS.
We live, shop, send mail, order food, get directions, pay for things, and do almost everything else in our ordinary lives on “property” owned by giant companies. You and I don’t own Facebook, Twitter, Google, YouTube, Instagram, PayPal, or Apple. Each is owned by a private company. Each is it’s own “company town.”
This is America, so in principle, that’s cool. But we must treat these “towns” — and more importantly our liberties — according to this obvious truth.
The citizens of Chickasaw, Alabama did not own the place they lived, shopped, sent mail, ordered food, drove, bought and sold, or whatever else, either. Marsh v. Alabama says “It doesn’t matter.” Our freedoms still exist. They apply, and they are enforceable.
We shouldn’t for a MINUTE believe that there is “nothing” we can do about our situation. Marsh v. Alabama is a stark reminder that in America, you can buy almost anything. You can buy religious literature. You can buy a house. You can buy a business. You can buy property. You can buy a road. You can even buy the entire town of Chickasaw, Alabama.
But what you CANNOT buy is THE LAW. You cannot own someone’s liberties. It doesn’t matter how big or rich you or your business are. Every person is subject to the law. And yes, even a big international corporation is a “person.”
Please share… …before the company town notices.