John Stuart Mill offers arguably the most insightful and important defense of free speech. He contends that freedom of speech will contribute to “the permanent interest of man as a progressive being.” Freedom of speech is often justified based on the idea that an undisturbed marketplace of ideas is an essential ingredient to a healthy democracy. Indeed, the Supreme Court has declared this the primary purpose of the First Amendment: “to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail.” This is a strong defense, but it does not go far enough. Mill does us a great service when he reminds us that we are fallible beings. He reasons that although we may be confident a view is incorrect, it alone is no basis to silence that view. He reasoned that any silenced opinion could be true, and to deny this is to assume one’s infallibility. In addition, Mill provides that although a silenced opinion could be incorrect, it “may, and very commonly does, contain a portion of the truth . . . .”

Much ink has been spilled over the importance of freedom of speech, but Mill’s positions are particularly insightful additions. And there are many more reasons to defend freedom of speech—one of which is that viewpoint diversity helps us get a clearer view of the truth. Regardless of the many reasons why free speech should be protected, important changes to the way we exchange ideas, driven by the invention and proliferation of social media, are challenging the law’s ability to safeguard free speech and the marketplace of ideas.

The way in which we exercise the right to free speech and engage with others in the marketplace of ideas has fundamentally changed. Freely expressing one’s views on important social and political matters evokes the traditional image of “a person standing on a soap box in the town square speaking her mind into a megaphone with Congress restrained by the text of the First Amendment and unable to interfere.” Now, with an internet connection and a social media account, “any person . . . can become a town crier with a voice that resonates farther than it could from any soapbox.” Some have compared the significance of this transformation to the magnificent changes that came with the introduction of the printing press in Europe.

The First Amendment is based on the premise that the government is the primary threat to free speech and, absent government censorship, the marketplace of ideas exists in a healthy and undisturbed state. But that premise may no longer be reliable in light of the increasing popularity of private social media companies. Today, people increasingly use social media platforms like Facebook, YouTube, and Twitter to discuss social and political matters. Nearly two-thirds of American adults (65%) use these sites, an increase of fifty-eight percent since 2005. Ninety percent of young adults age eighteen to twenty-nine use social media, and this is up from twelve percent in 2005. The clear trend is that speech is increasingly taking place on private social media platforms that have wide latitude to censor content under the contractual relationship they establish with their users.

The movement of speech onto private platforms is concerning; some scholars wonder if this trend is making the First Amendment obsolete. The reason why is because the First Amendment only protects against speech restrictions imposed by state actors; infringements on one’s speech by private actors are generally not protected by the constitution. Because social media companies are private actors, any censorship suits against those companies would not survive the threshold requirement of state action. Thus, any dispute would be resolved by contract which could either limit (or extend) additional First Amendment protections to users.

This article will attempt to meaningfully advance the scholarship addressing the relationship between social media companies, the state action doctrine, and the First Amendment. It will argue that, despite numerous allegations of censorship and calls for judicial intervention, it is unlikely that federal courts will consider social media companies state actors despite their increasing influence and importance. But it will also argue that it is increasingly likely that a court could conclude that a social media company is a state actor in light of recent trends and desires to impose regulations on these companies.  Further, it will argue that if courts continue to conclude that social media companies are not state actors, it may be time to once again rethink our state action jurisprudence and whether we should tolerate infringements on speech just because they are committed by private actors.

Further, anticipating the possibility that a court could conclude that a social media company is a state actor, this article will explore the appropriate First Amendment scrutiny that ought to be applied to censorship on social media platforms, arguing that intermediate scrutiny is most appropriate. It will conclude by echoing recent scholarship which suggests that the First Amendment may becoming increasingly obsolete in light of the movement of speech into private realms outside the scope of constitutional protection, and why this should both give us pause and force us to contemplate solutions.

Part I will explore in more detail the changing landscape of political and social discussion, how social media companies regulate speech, and increasing allegations of censorship on social media platforms. Part II will discuss the state action doctrine, its purpose, history, and exceptions. Part III will introduce the First Amendment, the different levels of scrutiny courts apply in First Amendment cases, and why intermediate scrutiny is the most appropriate tier to apply to alleged censorship on social media platforms.