If the judges in RFK’s censorship case were truly liberal, they would support free speech

Ninth Circuit Judge Gabriel Sanchez spent his first years out of college studying presidential politics in Argentina. After law school, while working for a big firm, he won an award from the ACLU. Later, as California Gov. Jerry Brown’s top legal adviser, he oversaw the litigation that found overcrowding in California’s prisons to violate the Eighth Amendment because they constituted “cruel and unusual” punishment, a novel legal argument that, while upheld by the Supreme Court (in a 5-4 vote), drew sharp criticism from the court’s conservatives, including Antonin Scalia, who called it “perhaps the most radical injunction issued by a court in our Nation’s history.”

Given that record, one would imagine Judge Sanchez considers himself a liberal who looks to liberal icons like William Brennan and Thurgood Marshall for guidance.

He’s not, at least not based on my experience with him last week.

Our exchange came in the case Kennedy v. Google that Robert F. Kennedy Jr. filed against Google to prevent the tech giant from censoring him on YouTube during his presidential campaign. (I am the lawyer leading that case.) YouTube took down two of his videos questioning the efficacy of the Covid-19 vaccines and pandemic lockdowns, stating it was medical misinformation.

The case is like Murthy v. Missouri, which was argued at the Supreme Court in March. But it’s not identical. Among other things, we argue that Section 230 of the Communications Decency Act made large internet-based platforms like Google and YouTube public forums, where viewpoint discrimination is never allowed. In exchange, they got immunity for the speech that occurs on their platforms.

Tech companies have long argued that they are forums open to everybody. They are not publishers that vouch for the content that appears on their platforms. So when they were lobbying for Section 230 in the 1990s, they argued they are “something like a bulletin board in a town square, where people come and go, leaving their messages.”

As a result, unlike publishers, tech companies such as Google got immunity over the content that appears on their websites. And the public nature of their sites allowed them to claim the benefits of procedural rules like California’s anti-SLAPP statute.

That makes sense. YouTube certainly looks like a public forum. It is a place where millions — indeed, billions — of people go to get information and discuss the issues of the day. Indeed, websites such as YouTube are freely accessible to anybody who can get online, which accounts for 94.6 percent of Americans. Yes, Google may own the YouTube domain name. That allows it to profit from the activity that occurs on the site. But it does not own the internet. It does not control who comes into the site.

History of a Liberal Supreme Court

For years, Democrats championed the openness of the internet. Barack Obama took digital campaigning to a new level in 2008. According to The Guardian, that was because “[t]here are no barriers to entry on sites like Facebook and YouTube. Power is diffused towards the edges because everybody can participate.” These are quintessential public forums.

Old-fashioned liberals like Brennan and Marshall would have agreed with that.

They were both on the Supreme Court during the 1960s, a period that saw a sea change in the Supreme Court’s constitutional jurisprudence. This was a period in which, to quote one scholar, “liberal activists exercised almost complete control over the Court’s decisions.” This was the time of Gideon v. Wainwright (free counsel for indigent criminal defendants), Griswold v. Connecticut (the right to privacy), Miranda v. Arizona (the right-to-remain-silent warning), and Tinker v. Des Moines (free speech for students in public schools).

At the peak of this era (1968), the Supreme Court decided Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza, Inc. There it found that Americans have a right to free speech (picketing) on private property (a shopping center) that is generally open to the public.

Justice Marshall wrote the majority opinion. He noted that after World War II, large shopping centers like Logan Valley had popped up all over America, as millions of Americans left cities and towns — with their main streets and business blocks — for the suburbs. The shopping centers had become the new town square. And he stated that “because the shopping center serves as the community ‘business block’ and is ‘freely accessible and open to the people in the area and those passing through,’ … the State may not delegate the power, through the use of its trespass laws, wholly to exclude those members of the public wishing to exercise their First Amendment rights on the premises in a manner and for a purpose … generally consonant with the use to which the property is actually put.”

Liberal icon William O. Douglas echoed that sentiment, writing:

While Logan Valley Mall is not dedicated to public use to the degree of the “company town” in Marsh v. Alabama … it is clear that respondents have opened the shopping center to public uses. They hold out the mall as “public” for purposes of attracting customers and facilitating delivery of merchandise. Picketing in regard to labor conditions at the Weis Supermarket is directly related to that shopping center business. Why should respondents be permitted to avoid this incidence of carrying on a public business in the name of “private property”?

Conservatives were furious. Byron White — appointed by John F. Kennedy and one of the most disappointing Democrat appointees ever — emphasized the private ownership of the center, adding that “it is a place for shopping, and not a place for picketing.”

That year, Richard Nixon was elected president. By 1972, Nixon had appointed four new Supreme Court justices (Warren Burger, Harry Blackmun, Lewis Powell, and William Rehnquist), all staunch conservatives. Logan Valley was on thin ice. And by July 1972, it was effectively overruled in Lloyd Corp. v. Tanner.

The decision was controversial, a 5-4 vote in which the four Nixon appointees joined White to find that people did not have a First Amendment right to picket on a privately owned shopping center in Portland, Oregon.

Marshall, predictably, was upset. His dissent contains one of the most eloquent defenses of free speech rights, plus a pragmatic view of the way forward. For example, he noted that “[t]he more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it.”

He also issued a warning that should echo in our minds today:

We must remember that it is a balance that we are striking — a balance between the freedom to speak, a freedom that is given a preferred place in our hierarchy of values, and the freedom of a private property owner to control his property. When the competing interests are fairly weighed, the balance can only be struck in favor of speech.

By 1976, Logan Valley was dead, with the Supreme Court finally acknowledging its overruling in Hudgens v. NLRB. But other judges recognized the importance of protecting speech rights in the places where people congregate. So the state courts picked up the mantle, led by a liberal California Supreme Court that, in the Pruneyard case, found that people have a right under the California Constitution’s free speech clause to engage in speech in a large community shopping center like the Logan Valley mall and Lloyd Center.

Private Property and Pro-Speech Cases

Why does this matter? It matters because when the Ninth Circuit upholds Google’s claimed right to remove Kennedy’s speech from YouTube, as it likely will, it will cite cases like Lloyd Corp. and Hudgens and talk about the importance of private property rights. It will rely on Halleck v. Manhattan Community Access Corporation, a 2019 case in which the Supreme Court — in a 5-4 vote, with an opinion from Justice Brett Kavanaugh — held that a private company operating a public access TV station in New York City could remove programming based on its content. It will ignore the dissent written by Sonia Sotomayor (and joined by liberal hero Ruth Bader Ginsburg) in Halleck. It will ignore the pro-speech dissents written by Marshall, Brennan, and Douglas in Lloyd Corp.

In short, it will turn a blind eye to the very principles judges like Gabriel Sanchez claim to stand for.

How sad. I’ve never believed in judicial activism. Judges have a role to play in the legal process. Making law is not it.

But constitutional law is different. Free speech rights are different. Just a few generations ago, women could not vote. Jim Crow laws kept many blacks from voting, too. Now we have a nonwhite female vice president. A black man served two terms as president. Women fill the corridors of power. That progress came about not through warfare but through speech.

But speech doesn’t matter if it can’t be heard. Marshall recognized that. That’s why he viewed the public nature of the Logan Valley and Lloyd Corp. shopping centers as so important. That’s where speech needed to occur to have an effect.

He would have thought the same thing about YouTube.

Let’s see if Sanchez realizes that.