Websites are not currently considered public accommodation, but exceptions to this exist. Case law suggests that operating a website in conjunction with a physical location (Five Guys, Blick) exposes you to public accommodations requirements for ADA compliance on the website. One could argue that the contingency for physical location negates this argument for something like Facebook, but actually I'm not going to argue that point, because I think it's pretty obvious that ADA should change to cover it.

However, we're not talking about a burger shack and the online equivalent of a ramp. We're talking about an organization whose primary function is to engage in expressive activities through its members. This happens to be the first part of the test for the guarantee of first amendment associational rights. The second is that forcing unwanted association must not significantly affect the organization's ability to advocate for their views.

Originally Posted by NAACP v Patterson (1958)
It is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the ‘liberty’ assured by the Due Process Clause of the Fourteenth Amendment, which embraces freedom of speech. . . . Of course, it is immaterial whether the beliefs sought to be advanced by association pertain to political, economic, religious or cultural matters, and state action which may have the effect of curtailing the freedom to associate is subject to the closest scrutiny.


My argument is that social media websites should be regarded as public accommodation, but because their primary activity is dissemination of speech, they are within their First Amendement right of freedom to associate when they uniformly apply their own guidelines for speech on their platform when terminating service. In any case arguing for exception to their guidelines, it must be demonstrated that the association does not significantly affect the organization's ability to advocate for the conduct they require, and that the state needs to have a compelling interest to allow the exception. The relevant case law is Hurley v Irish-American Gay Group and Boy Scouts v Dale, in both cases, anti-discrimination public accommodation law was superseded by the private organization's right to (not) associate.

Social Media websites not only have very explicit guidelines for conduct, but they regularly enforce them to maintain their ability to express those views. Allowing someone on their platform like Alex Jones, who they've identified as "engaging in or inciting targeted harassment," significantly detracts from their advocacy against that behavior. Additionally I think there is no compelling state interest to grant Alex Jones an exception from Twitter's policy on harassment.

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So there we have it, a full pathway to remedy your censorship. All you have to do is successfully argue:

- 1. Social Media companies don't have first amendment freedom of association protection

or

- 2a. Those censored were terminated in a way that doesn't impair Social Media's right to express their preference for conduct (outside of class protection) under their first amendment freedom of association protection if reversed
- 2b. There's a compelling state interest in reversing termination (i.e. 2d)
- 2c. Political ideology should be a protected class
- 2d. Social Media's application of their abusive behavior policies is not uniform and therefore tantamount to discrimination on grounds of political ideology

All in the context of a lawsuit, because in any scenario, Social Media has the right to terminate at their discretion and the legality of that termination should be decided in court. As compelling evidence that those you suggest are "censored" are not, in fact, due remedy: Pathway 1 already exists, yet there is no legal challenge underway on behalf of your examples.

Pathway 2 is both wholly contingent on 2c and is also required to demonstrate what I've been saying all along, which is that they need to demonstrate that they've terminated these people based on discrimination against political ideology, not on abusive behavior. In court.

In absence of 2c, it's within their right under their freedom to associate to explicitly discriminate against political ideology. Even in presence of 2c, I'd say it's arguable that it's within their right to terminate associations which advocate for an ideology which is equivalent to advocating for discrimination, because that grants clear exception from the compelling state interest in 2b - The state would be deciding discrimination of one protected class over another.


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