Should First Amendment Protections of Political Speech be Extended to GoFundMe?

Crowdfunding website GoFundMe has come into the spotlight of controversy after its recent decision to revoke the funding raised for the “Freedom Convoy” protests taking place across Canada. The Freedom Convoy is a gathering of truckers in multiple Canadian cities to protest vaccine and mask mandates put in place by the government. After raising millions of dollars from both Canada and the United States, GoFundMe froze the funds after reports of violence and occupation. This action prompted threats of investigations by multiple American state attorneys general into whether or not the decision to revoke the Freedom Convoy’s funding was politically driven. This all also comes at a time when discussion of “Big Tech” censorship of political speech is higher than ever before. Through the lens of US law, this article will show GoFundMe does not have the authority to remove a fundraiser for political reasons under the Constitution. This article will not claim GoFundMe’s decision regarding the Freedom Convoy was strictly politically motivated, only that if it was, then it would be unconstitutional.

To start, the ability of private platforms owned by Big Tech companies to censor users’ political speech must be examined. The First Amendment states “Congress shall make no law… abridging the freedom of speech,” where the word “Congress'' is now interpreted to mean the government as a whole. Subsequently, it is often held that actions taken by private entities such as Facebook and Twitter to restrict speech are exempt from the First Amendment because no government action has taken place. There is, however, Supreme Court precedent for regulating such actions by private entities, notably in Marsh v. Alabama. This 1946 case took place in a company town; that is, an entire town owned by a private entity in which its workers reside, but is still accessible to the public. One worker was distributing religious material against the word of written notices prohibiting such practices and was consequently arrested. After the case made its way to the Supreme Court, the Court ruled in favor of the worker, stating the company could not violate the First Amendment rights of the workers who live within the company town. The rationale of the Court was that the company, although privately owned, did not have the same right to prevent unwanted speech as that of a homeowner. Furthermore, the company was acting in a capacity similar to that of a government as it owned all of the buildings and streets within the company town. Therefore, the constitutional rights of the residents of the privately-owned town, the Court ruled, must be protected from restrictions that are already unconstitutional in federal, state, and local governments. 

The Internet of today is the equivalent of the company town in the Marsh case; it is a public space accessible to anyone, but is owned by a few large tech companies, namely Facebook, Twitter, Google, and Amazon. The number of companies that own most Internet space is comparatively smaller than the already small number of social media sites and platforms in which users can exercise free speech. This stands opposed to the real world in which any public space can suffice as a forum for speech. However, due to the Internet’s ease of access and vastly superior reach, it has become the most prevalent means of communication for meaningful expression, and these tech companies have dominion over it. To censor someone on Facebook, for example, is to prevent them from engaging in free speech on a huge portion of the most meaningful forum for expression. The same user would also likely be censored on other platforms like Twitter at the same time, severely limiting Internet users’ ability to engage in meaningful free speech. Since the Internet is open to all, just like a real world town, these actions by large tech companies can certainly be interpreted as acting in a capacity similar to that of a governing body. By the Marsh decision, First Amendment protections of free speech should, therefore, be extended to these online platforms like Facebook and Twitter. To extend the same protections to users of GoFundMe requires showing that the removal of a fundraiser for political reasons is sufficiently analogous to social media censorship.

To accomplish this, it must be shown that donating to a political cause on GoFundMe and posting one’s political views on Facebook are both examples of free speech. The line of reasoning needed to make such a comparison can be found in the Supreme Court case Buckley v. Valeo, an important case for today’s understanding of campaign finance. In the wake of the Watergate scandal, Buckley dealt with the Federal Election Commission Act (FECA) which placed various restrictions on financial contributions to political candidates and their campaigns. The relevant part of the decision deals with limits on individual expenditures, which the Court ruled were unconstitutional. These expenditures were contributions that went not directly toward a campaign, but toward expression in support of or opposition to campaigns. The Court’s reasoning was that the restriction of the use of money in this manner led to a restriction of a proportional amount of political speech. This is because “virtually every means of communicating ideas in today’s mass society requires the expenditure of money.” This decision suggests that the contribution of money to political causes is, in fact, speech. Of course, this holds true in the case of independent expenditures for or against candidates, but it should also hold true in the case of individuals donating to political causes on crowdfunding sites like GoFundMe. 

That said, if GoFundMe were to revoke the funding for a political cause strictly for political reasons, then it would be a violation of the First Amendment in a similar manner to Facebook’s censorship of political speech. This is if it can be shown GoFundMe has a controlling interest in the crowdfunding space. Since it is one of the most famous crowdfunding sites and was ranked the best for personal fundraising, this must be true. Since donating to a political cause is a constitutionally protected form of expression and GoFundMe has a controlling interest in the crowdfunding space similar to that of a governing body, the reasoning of the Marsh case applies. 

At this point, one cannot assert that GoFundMe’s removal of the Freedom Convoy’s funding was politically charged. If this was the case, however, then the First Amendment rights of American donors would be directly violated. GoFundMe, together with other platforms like Facebook, have turned the Internet into an oligopoly. These companies own such large portions of the Internet that they act analogously to the owners of the company town in the Marsh case. Supreme Court precedent from both Marsh and Buckley thereby dictates that First Amendment protections ought to be extended to these platforms, especially GoFundMe. From crowdfunding sites to social media, the regulation of online speech must be closely examined to ensure the preservation of the First Amendment in the digital age.

Nicholas Duffy is a Sophomore at Brown University, concentrating in Economics. He is a staff writer for the Brown Undergraduate Law Review and can be contacted at nicholas_duffy@brown.edu.