Privately Created Public Forums

Free speech in America faced some of the gravest threats in recent years. From cancel culture to President Trump being de-platformed as sitting President, there is a pressure to conform.

Juris Prudentia

• 22 min read
Privately Created Public Forums

By Ben1

Abstract

Free speech in America faced some of the gravest threats in recent years. From cancel culture to President Trump being de-platformed as sitting President, there is a pressure to conform. While social media sites have eased censorship of controversial topics, free speech should not be contingent upon the good graces of Big Tech tycoons. This Article first addresses the need for protecting free speech online. To ensure the protection and effectiveness of the First Amendment in 21st-century America, its protections should extend online. Second, this Article proposes applying First Amendment protections to social media websites, largely following Justice Marshall's reasoning in his dissents to cases where the Supreme Court pivoted to not apply the First Amendment to shopping malls. To effectively protect free speech online, Justice Marshall's reasoning should be applied to recognizing a new forum: privately created public forums. These are forums made by private individuals or entities but with the express intent of facilitating public discourse and expression, notably social media sites such as X, Facebook, YouTube, TikTok, and Instagram. The constitutional guarantees of free speech must be applied to such sites to safeguard free speech and reject the practices of censorship.

Introduction

It is long past time that free speech be allowed to once again flourish on the internet. In America, free speech is more than just a right; it is a sacrosanct freedom guaranteed by the Constitution.2 America has an obsessive fixation on free speech that is ever-present in the fabric of this country. To us Americans, free speech "is the matrix, the indispensable condition, of nearly every other form of freedom."3

Recently, the dedication to free speech in America has been unpredictable. Although receding,4 cancel culture shaped the last decade of American and Western politics.5 Cancel culture embodies the exact opposite of free speech. Instead of having the freedom to say what one thinks and debate a topic, individuals are shut down and ostracized from society in the most damning ways for sharing a disagreeable opinion. The internet has also displaced the typical in-person avenues as the go-to forum for free speech. But online, it is common for posts to be removed for violating various community guidelines,6 accounts to be shadow-banned,7 and even for accounts to be outright banned. Don't like it? Well, go post somewhere else. But that sentiment betrays the very principle of free speech.

Free speech must be kept alive online, as "any person with a phone line can become a town crier with a voice that resonates farther than it could from any soapbox."8 The internet has amplified the opportunity for political dialogue even further. This environment should be optimized, not stifled. Despite overtures by those such as Elon Musk that free speech is alive and well online,9 political discourse is still carefully contained by subversive practices. This must end, and true free speech must reign online. This Article proposes that a new type of forum should be recognized: the privately created public forum. These are forums made by private individuals or entities with the express intent of facilitating public discourse and personal expression, notably social media sites such as X, Facebook, YouTube, TikTok, and Instagram. This Article will (I) start with the necessity of protecting free speech online. Then (II) it will review the Supreme Court jurisprudence that lends credence to the idea of privately created public forums. This Article will conclude with some limiting principles.

I. Necessity to Protect Free Speech Online

Censorship not only poses a threat to an individual's rights, censorship shakes the very foundation of this Nation and poses a national security risk to the Nation, especially as one that is supposedly a "democracy." Free speech must be vigorously protected online because of (A) the threat of censorship in and of itself and (B) the danger that the illusion of free speech presents to real free speech—specifically when analyzing the threat posed by Elon Musk's supposed free speech platform X.

A. Censorship

The Supreme Court itself understands well the danger of censorship to political decision-making. "Human experience teaches that those who expect public dissemination of their remarks may well temper candor with a concern for appearances and for their own interests to the detriment of the decision making process."10 While participating in free speech, one knows that his or her remarks are being made public—that is the whole point—the risk of backlash that public speech now comes along creates a similar problem of self-censorship. Not to mention the direct censorship of opinions and people on social media platforms, including the sitting President of the United States in 2021.11 Not only are websites censoring people and topics by shadow-banning,12 but even after Elon Musk bought out Twitter and made it X, accounts are still subject to arbitrary bans.13

Censorship and self-censorship due to fear of cancel culture pose grave risks to the fabric of our Nation. For one, censorship and cancel culture contradict the American ideal of free speech and discussion. Especially in the political context, it is vital that Americans can participate in political discussions to make their voices heard and to participate in the dialogue that contributes towards shaping public opinion and public policy. If people are shut out from that process, not only will they become disengaged from the American political process—which relies on public participation for legitimacy—but also valuable ideas that could benefit society will be shut down arbitrarily or not even allowed to be said. If a society, especially one that proclaims to be a democracy, cannot even plainly discuss the problems it is facing, then it will be much more difficult to tackle issues faced by society, particularly when conventional wisdom is proving unwise and futile.

The censorship of ideas and people through cancel culture, whether done by the left or the right, not only violates basic human and constitutional rights, but it also kills creativity and productivity and creates a psychological burden on the populace. People will be unwilling to take risks and challenge norms if there is a serious risk of being ostracized as a result of floating an idea or opinion. In addition, the stress of being canceled for an opinion creates an unhealthy anxiety in the population, which never knows what opinion will next be grounds for cancellation.

In recent years, social media sites have been eager to censor, with sites still continually censoring people and ideas.14 In addition, when companies do not want to censor, then their hand is forced by interest groups and companies who threaten to withdraw support and advertising to social media sites if they do not participate in censorship.15 Not to mention the public officials, among others, who actively encourage censorship and praise censorship as a good thing.16 Private companies, concerned with making money above all else, cannot be relied on to consistently and evenhandedly prevent censorship. The government must protect free speech and end censorship.

B. Illusive Free Speech

Despite Elon Musk's vow of free speech on X,17 this ideological shift may pose more of a risk to free speech by creating an illusion of free speech. Consequently, people may be more willing to accept the idea that they have free speech when in reality, censorship exists the same as before. Except now the walking meme, Elon Musk, is the one carrying out the censorship instead of the big, bad Jack Dorsey.

There are two important things to know about X: the platform struggles to maintain a profit, and X is a very influential political platform. Twitter struggled to make money, and when Elon Musk took over and made it X, the platform continued struggling to be profitable, especially with advertiser strikes targeting the platform since Musk's takeover.18 Therefore, X essentially functions as a loss-leader.

X is an extremely influential force on politics. X is the go-to site for journalists.19 Fifty-nine percent of Americans receive their political news from X.20 X has an impact on high-profile decisions, from business to Capitol Hill, as "politicians, for their part, seem to increasingly craft their behavior, and sometimes even legislation, to please not their constituents but the platform's radicalized tastemakers."21 Citing Pew, the Washington Post22 claims seventy percent of Americans use X to receive political news, and that "even if their tweets reach only an elite audience on the social media network, politicians, companies and activists often rely on the platform to set the news agenda more broadly."23

X is impactful in Western countries24 as well as in other parts of the world, such as South America. With much fanfare and controversy, former president of Venezuela, Nicolas Maduro, was arrested and deposed by the Trump Administration. This was preceded by a feud25 between on X and the West’s attempts to pains Maduro as an illegitimate president.26 Just as the American Regime has taken issue with Maduro,27 so has Elon Musk, who theatrically agreed to fight Maduro at one point.28 In Brazil, X was also banned by the liberal President Lula,29 although this ban has since been lifted.30

Furthermore, a special relationship has emerged between supposed American dissidents, notably Musk and Tucker Carlson, and Javier Milei of Argentina.31 Carlson promoted Milei in an interview streamed on X in the lead-up to Argentina's presidential election,32 which Milei won.33 And who did Milei and those in his Cabinet meet with after becoming president? The normal crew: America's CIA director,34 America's SOUTHCOM Commander,35 and United States Secretary of State Anthony Blinken.36 Totally coincidentally, Argentina is a geopolitically important country that was about to ascend to BRICS before Milei won the presidency and rejected BRICS to remain aligned with the United States.37 And Argentina also is home to large reserves of lithium38 which, thanks to Milei, the United States now stands poised to profit from.39 The New Monroe Doctrine for South America is coming along nicely, especially with the help from Carlson's campaigning on Musk's X.

The use of X in South America is emblematic of its political influence and how that may be manipulated for desired ends. The interest in South America is at least eyebrow-raising. And the use of X is not limited to South America, as Musk placed pressure on Britain's Labour Party using his influence on X and then holding meetings to oust Prime Minister Keir Starmer from office.40 Not to mention Musk's curious pro-Trump influence peddling in the 2024 campaign cycle, which included one-million-dollar giveaways to voters,41 paying people for voter referrals,42 and innocuously spending a total of over two-hundred-million dollars on efforts to re-elect President Trump.43

Musk also has his own economic and personal interests. With X operating as a loss leader, what exactly is it loss-leading for? What interests of Musk's does X further? Musk, after investing heavily in President Trump's 2024 campaign, was then ominously involved in the Trump Administration, operating as the head of the new Department of Government Efficiency.44 Musk, of course, has his own private and entrepreneurial interests, which he will target ruthlessly.45 And not to mention Musk's SpaceX government contracts,46 which serve to entangle the owner of the most influential political social media site with the United States Military and intelligence agencies.

The reality of whether or not Musk is taking orders from American intelligence agencies on how to operate X may be beside the point, even if only for the sake of argument.47 Crucially, it is not inconceivable that such a relationship could exist between a largely influential social media site and the American, or a foreign, government. This prospect, coupled with the power of censorship, means that a government may subvert the legitimate political processes and public opinion of a country using a social media site in a deceptive way. The CIA, for one, is no stranger to such tactics and the use of color revolutions to topple legitimate and publicly supported governments.48 This is the danger that censorship can cause. An illusion of democracy, an illusion that your voice matters, an illusion that free speech exists, an illusion that the voices of others are their genuine opinions and not paid for. A blind eye must not be turned to censorship and the nefarious practices of social media sites. Constitutional safeguards must apply to these websites, even if they are "private."

II. Privately Created Public Forums

A. Free Speech Principles & Public Forums

Free speech is not just an inalienable right; its exercise is a duty of every American and necessary for the successful functioning of our constitutional system.49 Fostering diverse discourse functions to improve each other's ideas and perceptions and those of our society as a collective.50 Therefore, freedom of speech—the right to think and say what one wants—is not only a right in of itself but also a means of reaching the political truths about the issues facing society.51 It does not matter how offensive one's speech may be or how mistaken one's opinion is—political speech is protected all the same for its value in cultivating a diverse ecosystem of thought.52 Indeed, the First Amendment "was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people."53 It is undeniable that America long holds to "a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials."54

There are limits on free speech applicable to speech outside of political speech. Speech that rises to the level of incitement,55 obscenity,56 blasphemy,57 defamation58 are all examples of speech that can be limited. But what is at focus in this Article is the unconstitutional limits being placed on the purely political speech that is taking place on social media platforms.59

Perhaps the only constitutional limitations on political speech are the forum exceptions. Public forums are those which "have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions."60 This generally refers to public streets, sidewalks, public parks, and other areas "which by long tradition or by government fiat have been devoted to assembly and debate."61 In public forums, strict scrutiny applies, although reasonable time, place, and manner restrictions may be put into place if the restrictions also pass strict scrutiny and also "leave open ample alternative channels of communication."62 A designated public forum is public property that is not typically a public forum but is opened up for free speech.63 The same standards apply as for public forums, although content-based restrictions may be drawn, such as delineating a topic of discussion at a school board meeting.64 These content restrictions must also pass strict scrutiny,65 while the discrimination of different viewpoints is generally always unconstitutional.66

Public forums and designated public forums apply to public property.67 The introduction of privately created public forums would mean that instead of the government being the one who owns the property that is being used for public discourse, it is a private company or individual who owns the property hosting public discourse. A privately created public forum would be a forum, whether in-person or online, that is intentionally made to host the exchange of ideas and speech. The fact that the forum is created by a private entity would be treated as insignificant. Examples of privately created public forums would include town hall events hosted by a private company (assuming there is not a topic limitation) and social media sites such as X,68 Facebook, Instagram, TikTok, and YouTube. The alternative versions of these sites, which sprang up out of disdain for the censorship of these major platforms, would also be examples of privately created public forums. This includes sites such as Rumble, Bluesky, Truth Social, and Gab. And privately created public forums may also be classed as designated public forums for events and websites dedicated to specific topics, such as conventions and speaker events with question-and-answer sessions.

The idea that constitutional safeguards can apply to privately owned forums finds support in two main lines of Court precedent. First is Marsh v. Alabama, where private towns were deemed to be held to First Amendment standards. Second, malls were at one point held to the constitutional standard of the First Amendment, although this protection was reversed.

B. Marsh v. Alabama

Marsh v. Alabama provides precedent for private property being held to First Amendment free speech standards. In Marsh, a Jehovah's Witness was arrested for trespassing when she tried to pamphleteer in the company town of Chickasaw.69 Because Chickasaw was a company town, the sidewalk she was pamphleteering on was private property, not public property.70 She was convicted of trespassing.71 In any ordinary town, this result, and the violation of her rights, would never occur.72

The Court did not agree that company towns can deny freedom of speech and religion just because the entirety of the town's legal ownership is in a private entity.73 "The 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."74 Chickasaw, being the same as any ordinary town besides its private ownership, still had a public interest in free speech.75 Therefore, the constitutional protections apply to Chickasaw, and the arrest violated the First and Fourteenth Amendments.76 The Court even went so far as to say the freedoms of press and religion "occupy a preferred position" concerning the rights of property owners.77

Under Marsh, the private ownership of the town was ultimately not a controlling factor. It may have been privately owned, "but a company-owned town is a town."78 The company town was constructed for public benefit and copied the design and use of any other ordinary town. And so constitutional protections applied.

The same principle holds for public forums that happen to be privately owned. It does not matter if a social media site or some other venue is privately owned. When the owner decides to open up his property, he opens himself up to the rights held by those whom he invites to enjoy his property. Social media sites such as X are designed to replicate public spaces, but on the internet. The public square may have gone out of fashion, but it is alive and well because it has moved online. X, for its part, even advertises itself as a public forum.79 In taking up the responsibility to create a public forum online, social media sites are filling the role that governments have traditionally taken in preserving venues of free speech, such as sidewalks and public squares. The creation of public forums online is directly analogous to the creation of company towns, and like company towns, privately held social media sites should be subject to the Constitution to protect the rights of those who frequent such sites.

C. Malls

Malls are another example where the Court has grappled with whether the Constitution should apply to spaces that are privately owned. The Court has flipped on this issue, ultimately landing on not protecting free speech in malls, although this was not always the case. The four relevant cases, Amalgamated Food Employees Union v. Logan Valley Plaza,80 Lloyd Corp. v. Tanner,81 Hudgens v. NLRB,82 and Pruneyard Shopping Center v. Robins83 will be considered in turn.

1. Logan Valley

Logan Valley followed Marsh and continued applying free speech to public spaces. Authored by Justice Marshall, this case dealt with whether the First and Fourteenth Amendments applied to shopping malls when employees were picketing.84 A Weis supermarket was in the Logan Valley Mall.85 This Weis employed nonunion staff and a few days after opening members of Amalgamated Food Employees Union, all non-Weis employees, picketed in the parking lot the Weis in Logan Valley for not being unionized.86 Weis and the owner of the mall, Logan Valley Plaza, Inc., instituted an action and successfully enjoined the protestors from picketing in the parking lot or near the Weis store, forcing them onto the periphery of the mall next to the main road.87 The injunction was upheld in the Pennsylvania courts.88

The picketing was protected First Amendment activity which, if done on public property, would be unquestionably constitutional.89 The Court analogized to Marsh, stating, "that under some circumstances property that is privately owned may, at least for First Amendment purposes, be treated as though it were publicly held."90 And the similarity between the two cases is "striking."91 Seeing that the mall functioned as a "community business block" open to the public, trespass laws may not be used to prevent people from exercising their First Amendment rights if such activity is "consonant" with the property's function.92 Again, private ownership is insufficient as a basis to violate the constitutional rights of another.93

The Court noted some of the limits on the First Amendment. Private property open to the public could still restrict constitutional rights in the same manner that governments may do so.94 This includes blanket restrictions on activity in places not open to the public, limits on activity that interferes with the property's use, and time, place, and manner restrictions.95 Although none of these exceptions applied to Logan Valley, so the Pennsylvania courts were reversed.96

In Logan Valley, the principles of Marsh were followed and carried forward, with the Court emphasizing that the suburbanization of America would allow businesses to enjoy immunity from on-the-spot criticism if the Court ruled the opposite way.97 From this precedent, the First Amendment is applicable to private property when it is opened up to the public. These principles should carry on today and encompass the areas of the internet opened up to the public.

2. Lloyd

Lloyd deemphasized the idea that free speech applies to private property opened to the public by limiting speech where the free speech activity is irrelevant to the business purpose of the private property. The Lloyd Center, unlike the "public business districts" of Marsh and Logan Valley, which were akin to strip malls, was a multi-story single building complex, complete with gardens, an auditorium, and a skating rink.98 The respondents were passing out handbills in the Lloyd Center in protest of the draft and the Vietnam War.99 Handbilling, however, was not allowed in the Lloyd Center, and the respondents were kicked out under threat of arrest for trespassing.100 The respondents continued to handbill outside of the mall, on the public sidewalks that led to the mall.101 After rehashing Marsh and Logan Valley, the Court limited Logan Valley's application to when First Amendment activity relates to the business of the private property and when there are no other reasonable alternatives suitable for the activity.102

In Lloyd, the handbilling protesting the Vietnam War had no connection to the operations of the Lloyd Center, and the Court denied that there is an "open-ended invitation to the public to use the Center for any and all purposes."103 Moreover, the Lloyd Center was surrounded by sidewalks, and everyone entering or exiting the Lloyd Center had to traverse these sidewalks.104 This gave the protestors the same opportunity to get their message across as they would have had handbilling inside the Lloyd Center, and without infringing on the property rights of others.105

Although Lloyd is distinguished from prior precedent without overruling Marsh and Logan Valley, the Court attacks the idea that property loses its private characteristics by being open to the public.106 And although both property rights and constitutional rights must be protected, the Court felt that the issue in Lloyd was clear-cut in favor of the mall's private rights, and so the previous rulings in the Oregon District Court and Ninth Circuit, which ruled in favor of free speech, were reversed.107

But Justice Marshall, joined by three other justices, also provided a compelling dissent in favor of the broader protection for free speech.108 Justice Marshall emphasizes the public nature of Lloyd Center: its large size with a plethora of businesses, its private police armed with full police power granted by the City of Portland, and the City ordinances recognizing Lloyd Center as a general business district intended to be an integral part of the City.109

Justice Marshall also attacks the idea that the Vietnam War handbilling was irrelevant to Lloyd Center. Conveniently ignored by the majority, Lloyd Center had hosted football rallies, presidential candidates, Veterans Day ceremonies, and allowed groups like the Salvation Army, the Volunteers of America, and the American Legion to fundraise in the mall.110 Given this broad range of activities already allowed in Lloyd Center, the mall was already open to First Amendment activities, and the exclusion of the respondents was therefore unconstitutional.111

Thus, under Justice Marshall's logic, social media sites would also be subject to First Amendment protections. Social media sites are integral parts of daily life now and are often the only effective way to reach people with political messaging.112 Social media sites are designed to facilitate mass communication, especially political dialogue. Social media sites are already open to First Amendment activities, and so the protections of the First Amendment should be made applicable to these sites.

And even under the majority's reasoning, Lloyd can be followed under the doctrine of privately created public forums as applicable to social media websites. Social media sites are designed to facilitate a broad host of public dialogue and communication. These websites pride themselves as the new public square and the place for people to stay in touch and have conversations in the modern age. Even with the distinctions from Lloyd, social media sites still fall easily within the Court's precedents because applying free speech to social media is in accord with the express purpose of these websites, unlike the purpose of a mall, which is for commercial activity.

3. Hudgens

In Hudgens, the Court decided "that the rationale of Logan Valley did not survive the Court's decision in the Lloyd case."113 A group of union members employed at Butler Shoe Company's warehouse picketed outside their employer's outlet store in the DeKalb Shopping Center.114 This is a shopping mall like Lloyd, leasing to sixty stores in a single, enclosed mall.115 The main issue was whether the National Labor Relations Act was violated, although importantly, the First Amendment claims were considered and dismissed.116 The Court firmly shot down the idea that malls are equivalent to municipalities.117 Therefore, free speech is not protected at private malls.118

Justice White, concurring in only the result, pointed out that Logan Valley is not controlling in this case because the facts were different from Logan Valley.119 In Hudgens, the picketing was related to a warehouse of the store, not the store itself, and so the picketing was not directly related to the store and not protected by the Constitution.120 Therefore, "there is no need belatedly to overrule Logan Valley, only to follow it as it is."121 Justice Marshall, of course, dissented to the overruling of Logan Valley. Justice Marshall thought that Hudgens could be decided on statutory grounds and that the discussion on the First Amendment was unwarranted.122

Hudgens decided the conflict between the two camps on whether free speech applies to private businesses, particularly malls. Those against free speech latched onto the rationale that free speech protections were only ever applied by the Court because, in Marsh, the company town acted as a municipality, and subsequent shopping centers were analogous to this assumption of responsibility. Hudgens firmly denied that malls are anything like company towns.

The part of the Court friendly to free speech relied more heavily on the idea that by intentionally opening one's private enterprise to the public, the public's rights must be balanced with the private businesses.123 The majority in Hudgens utterly fails to even acknowledge this rationale undergirding Marsh and Logan Valley. While the majority thought there was no reconciling Logan Valley and Lloyd,124 Justice Marshall noted that the two criteria stemming from Marsh and Logan Valley were followed by Lloyd: that the First Amendment applies when the speech is related to the business or when there is no reasonable alternative.125

Because of its questionable overruling of Logan Valley, Hudgens must be acknowledged. However, its poor reasoning and apparent limitation to the question of whether malls usurp public functions makes it a fractionally relevant case for First Amendment principles. The crucial question is whether, by purposefully availing oneself to the public, does that create an obligation to recognize the free speech rights of others? Hudgens does not touch on this issue in its ruling, although Marsh, Logan Valley, and Lloyd all, to their varying degrees, recognize that there is a balance that must be struck between private property and the First Amendment.

4. Pruneyard

Lastly, in Pruneyard, the Court allowed the California Supreme Court to interpret its state constitution to allow for the broader First Amendment protections, which the Court rejected in Lloyd and Hudgens. High school students went to the PruneYard Mall to solicit signatures for their petition in favor of zionism.126 PruneYard's policy did not allow for "publicly expressive activity," and the high schoolers were kicked out.127 The California Supreme Court reversed its previous precedent and decided to protect free speech over the property interests of public shopping centers.128 The Court upheld California's interpretation as a "reasonable restriction on private property."129 The Court rejected PruneYard's contention that allowing free speech is a form of government taking of property.130 The allowance of free speech does not impair the value or use of the mall.131

The Court also rejected PruneYard's contention that their free speech rights as owners of the property trump the free speech rights of their patrons.132 This was rejected because PruneYard is a public business, and individuals sharing their message are unlikely to be attributed to the business itself.133 In addition, the government is not forcing any message on PruneYard, and PruneYard could take simple measures to disclaim any notion that ideas shared by members of the public in the mall are endorsed by PruneYard.134 Free speech prevailed, and the California Supreme Court's ruling was affirmed.135

In his concurrence, Justice Marshall continued to stick by his arguments in Logan Valley, Lloyd, and Hudgens.136 Justice Marshall warned that "rights of free expression become illusory when a State has operated in such a way as to shut off effective channels of communication."137 And so the rejection of any application of the First Amendment to privately owned public spaces is misguided.138

D. The First Amendment Should Apply to Privately Held Property

Justice Marshall's reading of free speech is the correct one, and it supports the idea of privately created public forums. Justice Marshall logically built upon the principle from Marsh that "the 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."139 It makes sense to continue to apply this principle to private property besides company towns.140

As Justice Marshall emphasized in Lloyd, many of these "private" businesses are purposefully used by the owners for public, community-building events.141 Logically, there should be a trade-off between one's private rights and the rights of the public when one voluntarily and knowingly opens up his property to the public to facilitate free expression. Or when a private entity more-or-less assumes the role of the government, as in Marsh. Without First Amendment protection, new modes of communication may be freely censored without any oversight. With so much communication occurring online, it is unrealistic to expect the physical town hall or public square to remain the main venue for debate. Instead, the First Amendment must extend to those areas of modern society that have been carved out as forums of debate. In the past, this may have included malls, and still logically could. However, the main modes of communication and debate now are social media sites, with X occupying the premier spot.

Further, Hudgens does not adequately deal with the argument for extending free speech protection to private property. Instead, Hudgens focused largely on the perceived misapplication of Marsh.142 The Court read Marsh as only applying when private entities assume the responsibilities of government, thus being also burdened with respecting free speech as the government must.143 However, undergirding Marsh is the broader idea that just opening up your property for public use is enough to require one to respect certain rights of the public, to varying degrees depending on the circumstances. The Court's emphasis on the factual balancing at what point a business assumes government responsibility misses the point. Justice Marshall consistently pointed this out as the Court distanced itself over time from Logan Valley.144

Conclusion

It must be emphasized that privately created public forums are just that: public forums that are created by private entities instead of the government. The mere opening up of one's private property for business does not create a public forum. But advertising your property as a public square and selling a service that facilitates the discussion of the public does create a public forum. Websites such as X and Facebook are created specifically to facilitate free speech among the public. The fact that private entities control these services should not mean that free speech in America can be stifled and thwarted. Especially when the majority of political discourse now occurs online.

The First Amendment must be extended to these privately created public forums. This would include the regular exceptions to free speech for violent and obscene speech, among other exceptions. In addition, limits may be placed if a forum is a designated one. Reasonable time, place, and manner restrictions may also be applied as appropriate.

Privately created public forums would not apply everywhere. This doctrine would largely apply to expressive social media sites such as X, Facebook, YouTube, and their alternative versions such as Rumble, Gab, and Truth Social. In a political process that relies on free speech and an informed populace, it is vital that these platforms are free of censorship so that truly free debate can occur. The application of the First Amendment to these sites would guarantee free debate and remove the censorship practices of shadow banning, arbitrary bans from platforms, and measures taken by websites to suppress the visibility of posts because of their content.

Social media sites are specifically designed to facilitate all sorts of communication, especially ideas and political discourse. Websites such as X, Facebook, and YouTube are intended to be platforms for people to speak from. It's like being a "platform." These sites are not meant to push any narrative but allow everyone to have their say. When someone intentionally creates a forum for such public discourse, he should be made to abide by his promise. The doctrine of privately created public forums does just this.

Over time, public discourse has shifted online to social media platforms. The physical public square is no longer the place to host debates and share ideas. People are not standing up on soapboxes; they are posting online. If the Constitution cannot adapt to this change, free speech in America is imperiled.

Note: This article contains extensive legal citations and references. Full footnote references are available in the footer.

References and Citations

[1] Recently barred lawyer.
[2] See U.S. CONST. amend. I.
[3] Palko v. Connecticut, 302 U.S. 319, 326-27 (1937), overruled by Benton v. Maryland, 395 U.S. 784 (1969).
[4] Chris Harvey, Cancel culture is dead. The mob just hasn't noticed, THE TELEGRAPH (Dec. 19, 2024, 1:15 PM), https://www.telegraph.co.uk/films/0/cancel-culture-is-dead-the-left-hasnt-noticed/.
[5] Samuel P. Catlin, How Cancel Culture Panics Ate the World, THE NEW REPUBLIC (Nov. 25, 2024) https://newrepublic.com/article/188316/cancel-culture-panics-ate-world.
[6] Community guidelines are simply rules that one must follow when using a website. While community guidelines themselves are innocent enough, their large breadth often makes it easy for websites to pick and choose what gets removed from the website. And if you violate community guidelines, often the only options are to remove your violative post or stop using the platform.
[7] Shadow banning is when an account, or even a word or phrase, is actively suppressed by the website, making it harder for accounts to find engagement or be seen at all by others.
[8] Reno v. ACLU, 521 U.S. 844, 870 (1997).
[9] See infra note 16.
[10] United States v. Nixon, 418 U.S. 683, 705 (1974).
[11] Melina Delkic, Trump's Banishment from Facebook and Twitter: A timeline, NEW YORK TIMES (May 10, 2022) https://www.nytimes.com/2022/05/10/technology/trump-social-media-ban-timeline.html.
[12] E.g., Charles Creitz, Top Republican demands answers from Zuckerberg, accusing Meta of 'shadow banning' military content, FOX NEWS (Dec. 16, 2024, 4:42 PM), https://www.foxnews.com/politics/republican-demands-answers-zuckerberg-meta-shadow-banning-military-content; Natasha Lomas, X users are still complaining about arbitrary shadowbanning, TECHCRUNCH (Mar. 18 2024, 1:30 PM PDT), https://techcrunch.com/2024/03/18/x-shadowban-complaints/.
[13] E.g., Chris Morris, Account suspensions have tripled on X since Elon Musk took over, FORTUNE (Sep. 25, 2024, 11:53 AM), https://fortune.com/2024/09/25/twitter-x-account-suspensions-triple-transparency-report-elon-musk/; Morgan Meaker, X Banned the Account of a Major Critic. Now He's Taking It to Court, WIRED (Oct. 31, 2023, 1:10 PM), https://www.wired.com/story/x-twitter-ban-critics/.
[14] See supra note 12.
[15] Julia Shapero, ADL signals truce in feud with Musk, will resume advertising on X, THE HILL (Oct. 5, 2023, 1:18 PM), https://thehill.com/policy/technology/4240185-adl-signals-truce-in-feud-with-musk-will-resume-advertising-on-x/; Shauneen Miranda, Companies pulling ads from X: Disney, Apple, IBM and more, AXIOS (Nov. 18 2023), https://www.axios.com/2023/11/17/companies-pulling-x-twitter-ads-apple-disney-ibm.
[16] E.g., John Mac Ghlionn, 'Deplatforming works,' AOC declares after Fox axes Carlson, but studies find tactic self-defeating, JUST THE NEWS (Apr. 28, 2023, 11:40 PM) (quoting congresswoman Alexandria Ocasio-Cortez stating "'Deplatforming works and it is important.'"), https://justthenews.com/accountability/cancel-culture/sdeplatforming-works-aoc-declares-after-fox-axes-carlson-studies-find; Daniel Finkelstein, The social media racists must be silenced, THE TIMES (Dec. 13, 2016, 7:00 AM), https://www.thetimes.com/article/the-social-media-racists-must-be-silenced-67t0qkbfz. Here's a video of AOC's Instagram live where she says it herself for your own edification: https://x.com/BuckSexton/status/1650870578687930369
[17] See, e.g., Elon Musk (@elonmusk), X (Oct. 27, 2022, 11:49 PM), https://x.com/elonmusk/status/1585841080431321088 ("the bird is freed"); Elon Musk claims he's buying Twitter to 'help humanity', BBC (Oct. 27 2022), https://www.bbc.com/news/business-63408384; Rob Wile & David Ingram, Elon Musk now leading Twitter, ushering in likely changes to online speech, NBC NEWS (Oct. 27 2022, 9:06 PM), https://www.nbcnews.com/business/business-news/elon-musk-twitter-deal-closes-making-musk-new-owner-rcna54084.
[18] Nathan Reiff, How X (Formerly Twitter) Makes Money, INVESTOPEDIA (May 17, 2024, 12:46 PM), https://www.investopedia.com/ask/answers/120114/how-does-twitter-twtr-make-money.asp; William Gavin, Elon Musk's X has a major advertising problem, QUARTZ (Aug. 16, 2024), https://qz.com/twitter-x-ad-revenue-tumbles-elon-musk-grok-1851624340; Adam Gabbatt, Value of X has fallen 71% since purchase by Musk and name change from Twitter, THE GUARDIAN (Jan. 2, 2024 9:24 AM), https://www.theguardian.com/technology/2024/jan/02/x-twitter-stock-falls-elon-musk.
[19] Andrew Hutchinson, New Study Shows Twitter is the Most Used Social Media Platform Among Journalists, SOCIAL MEDIA TODAY (June 28, 2022), https://www.socialmediatoday.com/news/new-study-shows-twitter-is-the-most-used-social-media-platform-among-journa/626245/.
[20] Colleen McClain, Monica Anderson & Risa Gelles-Watnick, How Americans Navigate Politics on TikTok, X, Facebook and Instagram, PEW RESEARCH CENTER (June 12, 2024), https://www.pewresearch.org/internet/2024/06/12/how-americans-navigate-politics-on-tiktok-x-facebook-and-instagram/.
[21] Cal Newport, Our Misguided Obsession with Twitter, THE NEW YORKER (May 2, 2022), https://www.newyorker.com/culture/cultural-comment/our-misguided-obsession-with-twitter.
[22] The Washington Post was bought by fellow billionaire Jeff Bezos, unlikely just because of its appeal as a business but also because of the newspaper's own ability to set policy and influence public opinion.
[23] Naomi Nix & Chris Alcantara, Twitter lags behind its rivals. Here's why Elon Musk bought it anyway., THE WASHINGTON POST (Apr. 26, 2022), https://www.washingtonpost.com/technology/2022/04/26/twitter-value-elon-musk/.
[24] See, e.g., Ben Quinn, Dan Milmo & Kiran Stacey, Money, lawyers or boosting Farage on X: how Elon Musk could affect UK politics, THE GUARDIAN (Dec. 7, 2024, 00:00 AM), https://www.theguardian.com/technology/2024/dec/07/money-lawyers-or-boosting-farage-on-x-how-elon-musk-could-affect-uk-politics.
[25] Iona Cleave, Venezuelan president bans Twitter for 10 days over Elon Musk row, THE TELEGRAPH (Aug. 9, 2024, 2:31 PM), https://www.telegraph.co.uk/world-news/2024/08/09/venezuela-president-bans-x-10-days-elon-musk-war-of-words/.
[26] P. Michael McKinley, Maduro's power grab can still be stopped, WASHINGTON POST (Dec. 9, 2024) (claiming Maduro stole the most recent Venezeulan election), https://www.washingtonpost.com/opinions/2024/12/09/maduro-stolen-election-sanctions/.
[27] US sanctions more allies of Maduro over alleged post-election crackdown in Venezuela, ASSOCIATED PRESS (Nov. 27, 2024, 7:35 PM), https://apnews.com/article/us-sanctions-venezuela-maduro-allies-election-3817ae194130232eaae5309603691de1.
[28] Elon Musk (@elonmusk), X (July 31, 2024, 12:21 PM), https://x.com/elonmusk/status/1818683475530334368 (Musk saying "I accept" to a screenshot of a NY Post headline reporting on President Maduro challenging Musk to a fight).
[29] Tom Phillips, Lula says Elon Musk's wealth does not mean world must accept his 'far-right free-for-all', THE GUARDIAN (Sep. 3, 2024, 12:37 PM), https://www.theguardian.com/world/article/2024/sep/03/luiz-inacio-lula-da-silva-elon-musk-brazil-x.
[30] Ben Derico & Ione Wells, Brazil lifts ban on Musk's X after it pays $5m fine, BBC (Oct. 8, 2024), https://www.bbc.com/news/articles/c5y06vzk3yjo.
[31] Manuela Tobias & Patrick Gillespie, Tucker Carlson, Elon Musk, and Argentine Elite Are Now Fans of Javier Milei, BLOOMBERG (Sep. 20, 2023, 9:53 AM), https://www.bloomberg.com/news/articles/2023-09-20/javier-milei-wows-tucker-carlson-elon-musk-and-argentine-elite; Robert Plummer, Milei, Musk and Maga: Is Argentina influencing the US?, BBC (Dec. 13, 2024) (ironically, the headline should read the inverse: Is the US influencing Argentina?), https://www.bbc.com/news/articles/c5y86vv0wneo.
[32] Daniel Politi, Tucker Carlson erupts into Argentina's presidential campaign with Javier Milei interview, ASSOCIATED PRESS (Sep. 15, 2023, 4:03 PM), https://apnews.com/article/tucker-carlson-milei-argentina-f49c03b3b15658081e85faa2150189e7.
[33] Tom Phillips, Josefina Salomon & Facundo Iglesias, Argentina presidential election: far-right libertarian Javier Milei wins after rival concedes, THE GUARDIAN (Nov. 19, 2023, 6:24 PM), https://www.theguardian.com/world/2023/nov/20/argentina-presidential-election-far-right-libertarian-javier-milei-wins-after-rival-concedes.
[34] Argentina, The national government received the head of the CIA (Feb. 5, 2024), https://www.argentina.gob.ar/noticias/national-government-received-head-cia; CIA chief William Burns travels to Argentina for meetings, BUENOS AIRES TIMES (Mar. 21, 2024, 1:03 PM), https://www.batimes.com.ar/news/argentina/cia-chief-william-burns-travels-to-argentina-for-meetings.phtml
[35] U.S. Southern Command Public Affairs, Gen. Richardson Meets with President Milei, Defense Leaders in Argentina, U.S. SOUTHERN COMMAND (Apr. 6, 2024), https://www.southcom.mil/MEDIA/NEWS-ARTICLES/Article/3733211/gen-richardson-meets-with-president-milei-defense-leaders-in-argentina/.
[36] Simon Lewis & Adam Jourdan, Blinken, in Argentina, hails Milei's efforts on economy, touts mining opportunities, REUTERS (Feb. 23, 2024 12:40 PM), https://www.reuters.com/world/blinken-meets-argentinas-milei-latest-sign-us-support-2024-02-23/.
[37] Robert Plummer, Argentina pulls out of plans to join Brics bloc, BBC (Dec. 29, 2023), https://www.bbc.com/news/world-latin-america-67842992.
[38] Gustavo A. Cardozo, The Lithium Battle: Strategies of China and U.S. in Argentina, INSTITUTE FOR SECURITY & DEVELOPMENT POLICY (Aug. 21, 2024), https://www.isdp.eu/the-lithium-battle-strategies-of-china-and-u-s-in-argentina/.
[39] See Harriet Barber, Milei plan to privatise Argentina river sparks fears among local communities, THE GUARDIAN (Nov. 20, 2024, 12:06 PM), https://www.theguardian.com/world/2024/nov/20/arana-river-argentina; U.S. Mission Argentina, U.S. Army Corps of Engineers, U.S. EMBASSY IN ARGENTINA (Mar. 20, 2024) (announcing projects between the U.S. Army Corp. of Engineers and the Milei Administration), https://ar.usembassy.gov/factsheet-u-s-army-corps-of-engineers/; U.S. Mission Argentina, United States Announces $40 Million in Foreign Military Financing for Argentina, U.S. EMBASSY IN ARGENTINA (Apr. 18, 2024), https://ar.usembassy.gov/united-states-announces-40-million-in-foreign-military-financing-for-argentina/; Sgt. 1st Class Iman Broady-Chin, Southern Fenix 24: US, Chile, Argentina deploy over 600 to enhance interoperability, U.S. ARMY (Aug. 27, 2024), https://www.army.mil/article/279242/southern_fenix_24_us_chile_argentina_deploy_over_600_to_enhance_interoperability.
[40] See Musk discussed ways to oust British PM Starmer before next election, FT reports, REUTERS (Jan. 9, 2025, 1:21 AM), https://www.reuters.com/world/musk-examines-how-oust-starmer-uk-premier-before-next-election-ft-reports-2025-01-09/; Genevieve Holl-Allen & Dominic Penna, Musk 'discussed removing Starmer from No 10', THE TELEGRAPH (Jan. 9 2025, 10:36 AM), https://www.telegraph.co.uk/politics/2025/01/09/elon-musk-remove-keir-starmer-no-10-next-general-election/; Elon Musk (@elonmusk) X (Jan. 8, 2025, 11:34 AM) (responding "Unbelievable. Starmer must go." To a report about Starmer pressuring Labour MPs to reject a national inquiry into the Pakistani rape gangs in Britain), https://x.com/elonmusk/status/1877031254920458585; Elon Musk (@elonmusk) X (Jan. 8, 2025, 1:06 AM) ("Starmer is evil"), https://x.com/elonmusk/status/1876873106842624478; Elon Musk (@elonmusk) X (Jan. 5, 2025, 10:59 AM) ("Starmer must go. He is national embarrassment."), https://x.com/elonmusk/status/1875935051118203274; Elon Musk (@elonmusk) X (Jan. 1, 2025, 10:48 PM) (criticizing Starmer for not prosecuting rape gangs while he was head of the Crown Prosecution Service), https://x.com/elonmusk/status/1874664089894695221.
[41] Trisha Thadani & Annabelle Timsit, Pennsylvania judge denies attempt to stop Musk's $1 million voter giveaways, WASHINGTON POST (Nov. 5, 2024), https://www.washingtonpost.com/politics/2024/11/05/elon-musk-1-million-giveaway-pennsylvania-judge-krasner/; Rachel Looker, Elon Musk can keep giving $1m to voters, judge rules, BBC (Nov. 4, 2024), https://www.bbc.com/news/articles/crlnjzzk919o.
[42] Mary Whitfill Roeloffs, Elon Musk's PAC Is Paying $47 For Each Solicited Petition Signature From A Swing State Voter—Here's Why It's Controversial, FORBES (Oct. 7, 2024, 11:49 AM), https://www.forbes.com/sites/maryroeloffs/2024/10/07/elon-musks-pac-is-paying-47-for-each-solicited-petition-signature-from-a-swing-state-voter-heres-why-its-controversial/.
[43] Alison Durkee, Elon Musk Spent Over $200 Million To Help Trump Get Elected, FORBES (Dec. 5, 2024, 9:19 PM), https://www.forbes.com/sites/alisondurkee/2024/12/05/elon-musk-spent-more-than-200-million-to-help-trump-get-elected/.
[44] See Lindsay Whitehurst, White House says Elon Musk is not in charge at DOGE, but is advising the president, ASSOCIATED PRESS (Feb. 18, 2025, 3:51 PM), https://apnews.com/article/elon-musk-doge-white-house-layoffs-0fcdbb692717c63203ef971cb9807b35; Elon Musk & Vivek Ramaswamy, The DOGE Plan to Reform Government, WALL STREET JOURNAL (Nov. 20, 2024, 12:33 PM), https://www.wsj.com/opinion/musk-and-ramaswamy-the-doge-plan-to-reform-government-supreme-court-guidance-end-executive-power-grab-fa51c020.
[45] See Rachel Barber, Elon Musk wants to cut government spending. Tesla and SpaceX benefit from it, USA TODAY (Nov. 15, 2024, 4:57 AM) ("Musk, a vocal Trump supporter and the world's richest person, according to Forbes, has said that while killing the subsidy could hurt Tesla, which is best known for selling electric vehicles, it would devastate its competitors in the United States."), https://www.usatoday.com/story/money/2024/11/15/how-tesla-and-spacex-benefit-from-government-spending/76301473007/.
[46] Micah Maidenberg & Drew FitzGerald, Musk's SpaceX Forges Tighter Links With U.S. Spy and Military Agencies, THE WALL STREET JOURNAL (Feb. 20, 2024, 11:11 AM), https://www.wsj.com/tech/musks-spacex-forges-tighter-links-with-u-s-spy-and-military-agencies-512399bd; Greg Wehner, NASA awards launch services contract for Dragonfly mission to SpaceX, FOX BUSINESS (Nov. 26, 2024, 4:57 PM), https://www.foxbusiness.com/fox-news-air-space/nasa-awards-launch-services-contract-dragonfly-mission-spacex; Anthony Capaccio, SpaceX Gets US Contract to Expand Ukraine's Access to Starshield, BLOOMBERG (Dec. 6, 2024, 1:53 PM), https://www.bloomberg.com/news/articles/2024-12-06/spacex-gets-us-contract-to-expand-ukraine-s-access-to-starshield.
[47] Given the Smith-Mundt Modernization Act of 2012, intelligence agencies using propaganda on the American population is not far-fetched, especially considering famous past occurrences such as Operation Mockingbird and the Tuskegee Experiment.
[48] Yuan Hong, Exclusive: New report unveils how CIA schemes color revolutions around the world, GLOBAL TIMES (May 4, 2023, 10:32 AM) (claiming the CIA has conducted at least fifty color revolutions, including Ukraine in 2014 which put Zelensky in power), https://www.globaltimes.cn/page/202305/1290090.shtml. Color revolutions are when a foreign government creates public unrest in another country in order to replace the current regime with a new regime more friendly to the foreign nation. This may be done by instigating people to vote out a regime in an upcoming election or by equipping dissidents to violently overthrow the current regime.
[49] See New York Times Co. v. Sullivan, 376 U.S. 254, 269-270 (1964) (quoting Whitney v. California, 274 U.S. 357, 375-376).
[50] 303 Creative LLC v. Elenis, 600 U.S. 570, 584-85 (2023).
[51] See id. ("By allowing all views to flourish, the framers understood, we may test and improve our own thinking both as individuals and as a Nation.").
[52] See id. at 586 (citing Hurley v. Irish-American Gay, Lesbian & Bisexual Grp. of Bos., 515 U.S. 557, 574 (1995) and Snyder v. Phelps, 562 U.S. 443, 456 (2011)).
[53] Roth v. United States, 354 U.S. 476, 484 (1957).
[54] New York Times Co. v. Sullivan, 376 U.S. 254, 269-70 (1964).
[55] Brandenburg v. Ohio, 395 U.S. 444 (1969).
[56] Miller v. California, 413 U.S. 15 (1973).
[57] Blasphemy and the Original Meaning of the First Amendment, 135 HARV. L. REV. 689, 689 (2021) (arguing blasphemy is unprotected by the First Amendment).
[58] New York Times Co. v. Sullivan, 376 U.S. 254 (1964).
[59] Also note that hate crime laws accomplish the same effect of punishing free speech. The implications of hate crime laws on free speech is outside the purview of this Article, however.
[60] Hague v. CIO, 307 U.S. 496, 515 (1939).
[61] Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45 (1983).
[62] Id.
[63] See id. at 45-46.
[64] See Widmar v. Vincent, 454 U.S. 263, 269-70 (1981).
[65] Id.
[66] See Perry Educ. Ass'n, 460 U.S. at 46.
[67] See id. at 45-46.
[68] X even explicitly markets itself as "the world's town square." X, (@X), X (Nov. 30, 2023, 2:36 PM) ("X is the global town square—from the people for the people"), https://x.com/X/status/1730309839929110846; Premium (@premium), X (Aug. 13, 2024, 2:43 AM), https://x.com/premium/status/1823248872896069977; X Business, Transforming the Global Town Square, X BLOG: COMPANY (Jan. 9, 2024), https://blog.x.com/en_us/topics/company/2023/transforming-the-global-town-square.
[69] 326 U.S. 501, 502-04 (1946).
[70] Id.
[71] Id. at 504.
[72] See id. at 504-505.
[73] Id. at 505-06.
[74] Id. at 506.
[75] Id. at 507-08.
[76] Id. at 508.
[77] Id. at 509.
[78] Id. at 510 (Frankfurter, J., concurring).
[79] Supra note 68.
[80] 391 U.S. 308 (1968).
[81] 407 U.S. 551 (1972).
[82] 424 U.S. 507 (1976).
[83] 447 U.S. 74 (1980).
[84] Logan Valley, 391 U.S. at 309.
[85] Id. at 310.
[86] Id. at 311.
[87] Id. at 312.
[88] Id. at 312-13.
[89] Id.
[90] Id. at 316.
[91] Id.
[92] Id. at 319-20.
[93] Id. at 317.
[94] Id. at 320.
[95] Id. at 320-21.
[96] Id. at 321, 325.
[97] Id. at 324-25.
[98] Lloyd, 407 U.S. at 553.
[99] Id. at 556.
[100] Id. at 555-56.
[101] Id. at 556.
[102] Id. at 563.
[103] Id. at 564-65.
[104] Id. at 566-67.
[105] Id.
[106] Id. at 569.
[107] Id. at 570.
[108] Id. (Marshall, J., dissenting).
[109] Id. at 575-76.
[110] Id. at 578.
[111] Id. at 578-79.
[112] See id. at 580-81, 585-86 (arguing that the only way to reach patrons of Lloyd Center was by being inside the mall, which was designed to be an all-inclusive shopping center, and that First Amendment protections must adapt to changes in society).
[113] Hudgens v. NLRB, 424 U.S. 507, 518 (1976).
[114] Id. at 508-09.
[115] Id. at 509.
[116] Id. at 508-09.
[117] Id. at 520-21.
[118] Id.
[119] Id. at 524-25 (White, J., concurring).
[120] Id.
[121] Id. at 525.
[122] See id. at 526 (Marshall, J., dissenting).
[123] See id. at 538-40.
[124] See id. at 517-18 (majority opinion).
[125] See id. at 540.
[126] Pruneyard Shopping Ctr. v. Robins, 447 U.S. 74, 77 (1980).
[127] Id.
[128] Id. at 78.
[129] Id. at 81.
[130] Id. at 83.
[131] Id.
[132] Id. at 85-87.
[133] Id. at 87.
[134] Id.
[135] Id. at 88.
[136] Id. at 90-91 (Marshall, J., concurring).
[137] Id. at 91.
[138] See id.
[139] Marsh v. Alabama, 326 U.S. 501, 506 (1946).
[140] See Amalgamated Food Employees Union v. Logan Valley Plaza, 391 U.S. 308, 316 (1968).
[141] See Lloyd Corp. v. Tanner, 407 U.S. 551, 575-76, 578-79 (1972) (Marshall, J., dissenting).
[142] Hudgens v. NLRB, 424 U.S. 507, 514-18 (1976).
[143] Id. at 520.
[144] Id. at 539-40 (Marshall, J., dissenting); see Lloyd Corp. v. Tanner, 407 U.S. 551, 585-86 (1972) (Marshall, J., dissenting) (stating "the majority is obviously troubled by the rationale of Logan Valley" yet the majority refused to overruled the case); Pruneyard Shopping Ctr. v. Robins, 447 U.S. 74, 90 (1980) (Marshall, J., concurring) (criticizing that Lloyd confined Logan Valley to its facts).