A comment on the Rumsfeld v. FAIR thread reminded me that there's some confusion about this question, especially in light of last year's Cedar Point Nursery v. Hassid decision. Cedar Point held that a regulation providing that "[a]gricultural employers must allow union organizers onto their property for up to three hours per day, 120 days per year" "constitutes a per se physical taking" of private property and thus requires the government to pay "just compensation" to the property owners. What is the scope of that (and might it be relevant to requirements that social media platforms allow users or user posts that they don't want)?
The general rule, to oversimplify a bit, is that
- it's a taking (which triggers a duty to compensate) when the government "grant[s] a right to invade property closed to the public," but
- it's not a taking when the government provides greater access rights for property that is already "generally open to the public."
