Let's consider that the question can be altered slightly to "how much private space can one single entity acquire?" Perhaps the current understanding of public/private is sufficient, e.g. "a private company can bar who it chooses, given that they do not violate some paradigm of protected classes, etc." The problem is that ONE entity owns a majority of a certain type of "space."
The redefinition would be to say, "once you own more than X% of something, it cannot be governed by existing rules about 'private' spaces?"
This is exactly the key in all conversations about banned accounts on private companies. In my opinion, either our habits regarding information intake using the internet needs to change, so that we use "the old commons" more often. (like real town squares)
Or there NEEDS to be a jurisdiction where if you are big enough, you can't just arbitrarily ban users from your space. The propagation of free thought and sound ideas depends on one of the points completely. There are huge problems, like how a company can be regulated when it is a global company. I don't want US law to facilitate Swedish spaces.
Honestly, the first idea where habits are formed back onto the "old commons" is probably the only real solution. But it's not exactly simple to change the habits of an entire planet.
I'm pretty confident that if a suitable case made it to the supreme court, social media like Twitter would be deemed a de facto public square under the US Constitution.
Hopefully then people would apply a little more critical thought, rather than just parroting private vs public.
It's clear that at a certain scale, a private space becomes de facto public one, similar to anti-trust legislation breaking up perfectly valid private business that also happen to be monopolies.
Thomas might write that in a dissent (in fact, he already has). But he won't find a lot of allies on SCOTUS.
However, the key distinction between limited public forums and private forums is that the government creates the former. Twitter is private, and it has constitutionally-protected freedom of association to choose who it can associate with and constitutionally-protected freedom from being compelled to speak certain viewpoints. Any government that attempts to require social media to let everybody speak will find itself facing a constitutional challenge, as such a law is laughably unconstitutional. (Indeed, Texas and Florida have already written such laws, and they've already been enjoined for the very same reasons).
You are talking about prior case law, while I'm talking about likely future trajectory of case law. The constitution protects what the supreme court deems it to protect, within some reasonable interpretation of the text.
There is no text in the constitution protecting abortions either, yet we have the Roe v Wade result.
Here was the finding:
"The Due Process Clause of the Fourteenth Amendment to the U.S. Constitution provides a fundamental "right to privacy" that protects a pregnant woman's liberty to choose whether or not to have an abortion. This right is not absolute, and must be balanced against the government's interests in protecting women's health and protecting prenatal life. The Texas law making it a crime to procure an abortion violated this right."
I'm sure any rational observer can infer that the result stretches the definition of the wording to reach that conclusion. I am not anti-choice, just pointing out how loose of an interpretation can be used to reach a result.
It's pretty clear to me that if we enter a world where 95% of communication runs through a handful of companies, that right to free speech is meaningless without protections also against sufficiently sized/impactful organizations. There's certainly a way to reach that conclusion using the current text.
A conclusion could be that the government is infringing on the rights to free speech by not adequately protecting the public from large private entities. That's a pretty easy to reason and grasp result.
Let's revisit this comment in a few years. Pretty confident it will play out this way, especially given the current makeup of the court.
There is no text in the constitution protecting either a right to abortion or any broader right to privacy. There is specific text in the constitution protecting speech and association; in fact, it's the first enumerated right. Abortion has a much higher hill to climb than free association.
Apart from that you are also free to apply freedom of speech as a principle outside the bounds of the law, like many platforms have done most of the time until advertising got out of hand with privacy violations and content restrictions. Don't know how anyone could support more content restrictions... doesn't seem too bright at all, didn't hear any compelling case and you always have the option to not engage.
Yeah, there are also many workarounds aside from censoring. Such as allowing people to select filters/their own curation algorithm and so on.
But it seems to be the European model to censor societally undesirable viewpoints, from my understanding. So free speech from the American perspective does not seem to be a universally held belief.
Personally I think it's worth striving for, but providing tools for those who want to live in a bubble.
There will never be a "correct" single algorithm or filter that can be applied globally. These companies are doing a lot of unnecessary damage to themselves by trying to force it to be that way.
I believe all algorithms for curating what you see on the largest social media platforms should be required to be open source/explained, and that third parties should be able to write their own to be used on those platforms. Idea needs to be fleshed out more, but something along those lines. And all speech that's constitutional should be left untouched (in USA). If you don't like it, filter it out.
Agreed, especially if they would think 10 minutes about the values they allegedly espouse. There will always be something offensive in a culture that is benign or even welcomed in another. Their model is some artifical neutral culture mirroring diplomatic or corporate cultures.
Europes legislators are prominently very old and their fears are projected on the net.
We had hate speech laws for more than 1.5 centuries and still 2 dictatorships in one century and people still believe the state should regulate content and this power won't be abused. I don't know anymore, hereditary brain damage probably. It fits the definition of insanity too.
I believe we need some form of fisher-price browser that keeps some groups demanding moderation in their own land and completely separate them from those that do not like it. Android- and iPhone-countries, slowly running out of ideas...
> I'm pretty confident that if a suitable case made it to the supreme court, social media like Twitter would be deemed a de facto public square under the US Constitution.
1) Everyone agreed that there was no chance of the presence of petitioners implied that they were endorsed by the shopping center. This is key: Pruneyard's speech isn't being impacted, so such a law isn't infringing Pruneyard's rights. This does NOT hold true for social media--the reputation of even the largest social media sites is driven by the content posted on them, which means any restrictions on sites' ability to regulate their own posted content necessarily infringes those sites' rights.
2) The California state constitution has a stronger guarantee than the US constitution, and the right of the protestors to set up a table was only granted by the former and not the latter. But this is only permissible so long as it doesn't infringe the US constitutional rights, which, see the first point.
The issue I see is: that was an outdoor shopping mall where you didn't have to check an "I agree to the terms and conditions" in order to enter. And Twitter's T&C say they can suspend you for any reason.
My point is that most case law was ruled on when businesses were an order of magnitude smaller, and had smaller impact on the individual.
Sometimes difference in scale is also difference in kind.
A lot of prior case law that involved much smaller private entities would be unlikely to hold if retested at current scale, against e.g. Facebook or Twitter.
Even if the mechanism isn't through the constitution, Congress is likely to enact similar protections through new laws sooner or later.
This is getting into the more nuanced argument of “taking private property” for the public good - or at least allowing access to it for first amendment activities.
One issue with “forcing” first amendment protections on a private party is compelling speech from that party (in this case Twitter). If Twitter is entitled to first amendment “protection” from the government then it can’t be compelled to “speak” on behalf of a user.
Prohibiting shopping centers from blocking first amendment activities recognized that there are only so many “publicly available” squares in “real life” where people can exercise their first amendment rights. This doesn’t exactly hold true on the internet. There are an “infinite” number of public squares.
Another way to look at this is how IP “theft” is thought of. If I steal your CD you can’t listen to the music on it - but if I copy the MP3 then no one has been “deprived” of the original. Similarly “anyone” can stand in the “public square” of the internet without depriving someone else of that same space and access - an argument that doesn’t work in real life.
If there are infinite public squares do you need to be given access to all of them? Do you want to be compelled to speak for someone else simply because you’ve become large enough?
As a US citizen I’d prefer that these issues with corporations be addressed via other means that deal with monopoly power, open standards, data privacy/portability and similar. The first amendment is a powerful sword but it’s not a solution to a “bad actor” at the scale of Twitter - break up the company if you don’t like what they’re doing but don’t force them to speak for other people.
> But there aren't and infinite number online or off.
Not literally, no. But there is effectively unlimited room in "cyberspace" for both public and private squares. That people actually choose to congregate in a particular place isn't really part of the definition. You have the right to speak to those who wish to listen—not the right to an unwilling audience or the use of others' property to amplify your message.
> Online, are there any public squares?
Only those that the operators choose to make public. The government could run its own forums where it guarantees access to anyone who wants to speak… not that this is necessarily less prone to censorship. It can't guarantee you an audience (and most sane individuals would probably avoid a completely unmoderated forum given the kinds of speakers they attract), but then that's also true of real-life public squares.
It's quite an interesting question. There are lots of privately owned 'public' spaces in meatspace, and the function of a space (a place where people get together in public) and its ownership (municipal, commons, private) don't always overlap.
Which doesn't necessarily mean that Twitter should be treated as a town square, because it's clearly something different to that. Similar sorts of concerns about the centrality of private spaces to public use led to PruneYard Shopping Center v. Robins, a California case allowing political activity at shopping centres against the wishes of the operator. That case hasn't been widely followed in other states and countries, though, probably for good reasons.
Section 230 is specifically designed to allow them to do that without being liable. Without section 230, a site "curating" by deleting some comments, banning some accounts, etc. would then be liable for any illegal content on the site. The EFF has a very good article on why removing/repealing it would be a horrible idea: https://www.eff.org/issues/cda230
