Indeed, I think so many don't really consider the consequences of their actions. If this lawsuit is successful on the desired basis that private companies operating semi-open platforms are legally deemed as "Public Forum" then that is a huge game changer for everything.
I have an extremely positive view of the EFF, but in this case it really looks like they're trying to have their cake and eat it too. A key statement in the article is, "It’s the president’s (and other officials’) use of Twitter that is subject to the First Amendment, not Twitter itself." Yet their entire argument states quite the opposite - that this entire thing is contingent on Twitter being defined as a sort of legally defined Forum for discussion so that first amendment law is applicable. That categorization most certainly has major implications for Twitter and all major social media for that matter.
The thing about issues like net neutrality and the NSA is that, so far, they've covered their legal bases. I think dedicating legal resources to something, that the organization itself presumably has no expectation of a positive ability to influence, would be a far greater travesty than pursuing something where they believe they can effect positive change. The EFF, for how much they do, are incredibly small and underfunded -- they have to pick their fights.
Yet their entire argument states quite the opposite - that this entire thing is contingent on Twitter being defined as a sort of legally defined Forum for discussion so that first amendment law is applicable. That categorization most certainly has major implications for Twitter and all major social media for that matter.
IANAL, but I don't think there's such thing as a binary test of whether a place is subject to the First Amendment or not. It's always applicable in a specific context - here being the restrictions that the government can apply to the public, nothing else.
They gave the example of Television, saying that the government can't block specific viewers from seeing it - yet that doesn't make TV channels a sort of public square, where they have to allow anyone to make their statements. It's only a restriction on the government.
"In creating social media accounts with these communication features, like a Facebook page with a comments section, or a Twitter account that permits tagging and replies, the government endows the public with First Amendment rights to speak in these forums.
The First Amendment forbids viewpoint-based speech restrictions like those that result from blocking. The legal doctrine that applies here is the same one that is used to determine the government’s ability to regulate speech in government-controlled places or programs—the Forum Doctrine. [1][2]
Essentially, government-controlled forums for speech are divided into three categories [which then determine what can or cannot be controlled.]"
That is of course begging the question as to whether a Twitter account qualifies as a government-controlled place or program. And there are major implications of this qualification, far beyond whether politicians are allowed to block people on Twitter. I do not think TV and online private discussion platform have much in common. And I'm sure companies like Twitter and Facebook will fight to try to keep it that way. Television has become somewhat deregulated, but it's still under infinitely more rules and regulations than social media today.
For instance the television rules against profanity and nudity did not come from television stations themselves - it was rules imposed on them by the FCC. A single slip of the word fuck was enough to subject stations to huge fines. The enforcement of those rules (huge fines in particular) was deemed unconstitutional only in 2010! There still mountains of other rules and regulations in place on television nonetheless. This is certainly not where social media sites want to find themselves.
And to be clear, I'm not suggesting that if it is decided the politicians cannot legally block people on Twitter then suddenly that swearing will be regulated against. That is clearly absurd. What I am saying is that the current state of social media is very much unlike other more traditional platforms, like television. And so comparison between them, as a form of precedent, is not terribly meaningful.
And there are major implications of this qualification, far beyond whether politicians are allowed to block people on Twitter.
Why and how? I don't see how the restrictions on what governmental officials can do with their Twitter accounts will have "major implications". What's the step I'm missing?
Law is built on qualifiers. Right now social media lacks a qualifier. This case is, as shown previously, seeking to qualify social media. The implications of such qualification would then hold for all precedent for entities of said qualifier such as a legal "open forum." That part is not speculative. What I would speculate is that such qualification may also spark government interest in more direct regulation of social media. It would be done under the pretext of 'clarifying legal uncertainty and ensuring fair protection under the law.'
Qualifiers are context-based (as lawyers usually put it, "X is Y for the purpose of section Z"). I don't see why would this qualification extend beyond this context.
I have an extremely positive view of the EFF, but in this case it really looks like they're trying to have their cake and eat it too. A key statement in the article is, "It’s the president’s (and other officials’) use of Twitter that is subject to the First Amendment, not Twitter itself." Yet their entire argument states quite the opposite - that this entire thing is contingent on Twitter being defined as a sort of legally defined Forum for discussion so that first amendment law is applicable. That categorization most certainly has major implications for Twitter and all major social media for that matter.
The thing about issues like net neutrality and the NSA is that, so far, they've covered their legal bases. I think dedicating legal resources to something, that the organization itself presumably has no expectation of a positive ability to influence, would be a far greater travesty than pursuing something where they believe they can effect positive change. The EFF, for how much they do, are incredibly small and underfunded -- they have to pick their fights.