It was, in 2020 terms, a geologic era—nearly a full three weeks—ago that Donald Trump issued his “Executive Order on Preventing Online Censorship.” The proclamation thunders against Twitter for fact-checking a false presidential tweet, then alleges a far-ranging conspiracy to stifle conservative voices on social media. It somewhat vaguely threatens to change Section 230 of the Communications Decency Act—which protects websites that host or republish speech—unless these media get with the MAGA program.
Even the threat to do that is grossly unconstitutional (Congress writes the law, y’know) and, beyond that, just plain tacky. Having built his political career on the willingness of Twitter to allow defamatory and indecent tweets, it ill behooves Trump to turn on the platform when it displeases him. In addition, changing the act wouldn’t get Trump the result he wants—without Section 230, Twitter might find itself enmeshed in a costly defamation suit the next time it allows Trump to accuse a TV host of murder and traumatize an innocent family—and thus it might decline to post his tweet.
My attention, however, was caught by a curious case citation in the order that has gone mostly unnoticed. In Section 4, “Federal Review of Unfair or Deceptive Acts or Practice,” the order reads: “It is the policy of the United States that large online platforms, such as Twitter and Facebook, as the critical means of promoting the free flow of speech and ideas today, should not restrict protected speech. These sites are providing an important forum to the public for others to engage in free expression and debate. Cf. PruneYard Shopping Center v. Robins, 447 U.S. 74, 85-89 (1980).”
If that name doesn’t ring a bell, don’t feel bad—even for First Amendment nerds, PruneYard is obscure. Maybe its inclusion is just random: Slapdash lawyers sometimes cite inapposite cases to lend their pleadings a touch of spurious dignity. (I once knew a legal scholar who footnoted the word soufflé with a Supreme Court case about hot-dog carts.) So perhaps some eager junior staffer was just plugging a case unread into the text.
But I’ve been wondering whether the citation is a legal Easter egg, a hidden sign pointing to the direction that William Barr’s Justice Department would like to take the law. If the administration is serious about raising PruneYard as a rallying cry for internet regulation, it would mark yet another curious deformity that Trumpism has imposed on what was once called conservatism. Because PruneYard was, until now, considered a disgraceful liberal assault on property rights. It may be a harbinger that Trump seeks to apply a new kind of eminent domain to cyberspace.
PruneYard began on a November day in 1975, when a group of high-school students set up a card table in the Pruneyard shopping center near San Jose, California. They were seeking signatures on a petition opposing a United Nations resolution condemning Zionism as “a form of racism and racial discrimination.” Security personnel told them they couldn’t do that without management’s permission, and they left.
The students sued, arguing that the expulsion violated their rights under both the First Amendment and the California Constitution’s separate guarantee of the right to “petition government for redress of grievances.” A trial court rejected the claim. It noted correctly that the U.S. Supreme Court, only three years before, had decided in Lloyd Corporation v. Tanner that the First Amendment did not protect the right of anti-war protesters to enter a private shopping center to distribute leaflets.
“The essentially private character of a store and its privately owned abutting property does not change by virtue of being large or clustered with other stores in a modern shopping center,” Justice Lewis F. Powell Jr. wrote for the 5–4 majority in Lloyd. The owners’ property rights, he said, trumped the free-speech rights of the leafletters—exactly the result that conservative legal theory would dictate.
But the California Supreme Court, confronted with the student signature-gatherers in PruneYard, took a different path. The state’s constitution trumped those same property rights, the justices decided. Lloyd, they reasoned:
does not preclude law-making in California which requires that shopping center owners permit expressive activity on their property. To hold otherwise would flout the whole development of law regarding states’ power to regulate uses of property and would place a state’s interest in strengthening First Amendment rights in an inferior rather than a preferred position.
The Pruneyard’s owners, relying on Lloyd, took the case to the U.S. Supreme Court—and lost, 9–0. The justices reasoned that states have a general power to regulate property interests within their borders, and could, if their constitution provided, require property owners to allow speech activities that the First Amendment doesn’t mandate.
What exactly is that principle—that a state’s law may displace property rights in aid of free expression—doing in an order threatening federal regulation of speech on a private website?
Many conservatives have, for four decades, regarded the PruneYard precedent with horror. One prominent conservative commentator, Gregory Sisk of the University of St. Thomas School of Law, has written twice calling for “uprooting the PruneYard.” In 2008, he said that the case was “a jurisprudential attractive nuisance for deformed constitutional interpretation,” and a year later added that it has been “generally discredited as an anachronistic vestige of an activist period in constitutional jurisprudence.”
In an email to me, Sisk elaborated that “I think PruneYard has been essentially overruled on Fifth Amendment takings grounds”—meaning the rule that government may not occupy or expropriate private property unless the property is to be put to “public use,” and cannot do so without giving the owner “just compensation.”
Conservatives also regard the federal and state power of eminent domain with suspicion. In 2005, the Supreme Court decided a case called Kelo v. New London. The five-justice majority decided that the Fifth Amendment did not forbid New London, Connecticut, from taking a woman’s house away, not because it was blighted, and not for use by the government, but in order to transfer the property to a private corporation for purposes of “economic development.” To give an idea of the conservative reaction to this decision, consider that in 2011 Justice Antonin Scalia publicly said that Kelo was a grave mistake, on a par with Dred Scott v. Sandford and Roe v. Wade.
Trump, however, absolutely loves eminent domain. In 1993, he coveted the house next door to his Atlantic City, New Jersey, casino. Nothing was wrong with the house, but Trump wanted the space for a limousine parking lot. When the owner, a widow named Vera Coking, refused to sell, Trump got a friendly city government to condemn the house. Coking eventually beat Trump in court, but he hasn’t repented. “Eminent domain is an absolute necessity for a country,” he said in a 2016 debate. “Without it, you wouldn’t have roads, you wouldn’t have hospitals, you wouldn’t have anything.” (Another thing you can’t have without it is a border wall, and the administration has begun lawsuits to seize private property at the border needed for Trump’s signature initiative.)
Viewed in that context, why is PruneYard in Trump’s executive order?
Its most obvious implication is nonsensical—remember that the Supreme Court said in that case that states have a general power to regulate property, which permits them to authorize the use of private property for certain free-speech activities. Does the federal government have a general power over property? The majority in PruneYard said that “as a general proposition … the United States, as opposed to the several States, [is not] possessed of residual authority that enables it to define ‘property’ in the first instance.”
But the executive order seems to suggest that federal control is necessary to promote “free speech.” Sisk told me that “the Trump declaration offends the First Amendment by targeting the content of private speech in a way never contemplated even by PruneYard.” What could that mean? This is my own speculation, but I think this could be real trouble a few years down the road. Taken to its logical extreme, the order’s rationale might later support another order in which the federal government asserts some kind of “First Amendment easement” or “government speech” interest in private websites.
Clearly, this administration is not distinguished by its devotion to the First Amendment. We’ve seen its response to peaceful protest. In addition, Trump certainly seems to think that free-speech protections against defamation suits should be stripped away, and that flag burning should be illegal. (Earlier this month his lawyers threatened to sue CNN for reporting on a poll that showed Trump trailing Joe Biden among nationwide voters.) The administration may be prepared to argue that some other power—something, say, in Barr’s interpretation of Article II of the Constitution—permits the government to require social media to run government-supplied content, perhaps in response to criticism of the president. We have already seen, since the order, a demand from the Trump administration that CNN apologize for the poll showing the president running behind on the grounds that … well, on the grounds that it likes its own polls better.
It shouldn’t work, but it may be intended to give a new basis to threaten
Twitter, to intimidate it and other social media sites into Mark Zuckerberg–like submission. And who can even be sure that the “First Amendment forum” argument wouldn’t work in court? All First Amendment rights are likely to come up for review in the next few years, and precedents that seemed ironclad four years ago are melting like sherbet in the sun. Conservatives currently profess reverence for property rights, but not long ago they also opposed sweeping executive authority, corrupt conduct of foreign policy, presidential usurpation of Congress’s power to appropriate funds, presidential dispatch of the military into domestic disorder, and political interference in criminal prosecutions. Now a number of them have realized that the Framers eagerly intended all of those things, just as surely as that hurricane was headed for Alabama. How hard will it be for some ambitious academic to come up with a claim that the Founders wanted the government, and particularly the president, to have unfettered communication with the people, unmediated by greedy media companies?
Maybe I am just experiencing anxiety sparked by the malignant change in the legal atmosphere. But James Madison once wrote that “it is proper to take alarm at the first experiment on our liberties.” Trump and his administration have shown themselves to be avid experimenters. As we learned at last year’s Federalist Society convention, the current atmosphere among lawyers and judges is precisely that “sleep of reason” that the artist Francisco Goya wrote “produces monsters.”