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Marsh v. Alabama, 326 U.S. 501 (1946), was a case decided by the United States Supreme Court, in which it ruled that a state trespassing statute could not be us

Marsh v. Alabama, 326 U.S. 501 (1946), was a case decided by the United States Supreme Court, in which it ruled that a state trespassing statute could not be used to prevent the distribution of religious materials on a town's sidewalk, even though the sidewalk was part of a privately owned company town. The Court based its ruling on the provisions of the First Amendment and Fourteenth Amendment. https://en.wikipedia.org/wiki/Marsh_v._Alabama https://en.wikipedia.org/wiki/Marsh_v._Alabama > "Ownership does not always mean absolute dominion. The more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it."

ceejayoz 8y ago
Of course, the follow-ups are important, too: https://en.wikipedia.org/wiki/Lloyd_Corp._v._Tanner https://en.wikipedia.org/wiki/Lloyd_Corp._v._Tanner I'd put Facebook more in the "mall" example than the "company town" one.
- CobrastanJorji 8y ago
  The mall got out of it because there were many alternate places to distribute messages, so banning mall speech didn't significantly stifle overall speech. That probably still also applies to Facebook today, but not by a wide margin.
  - philwelch 8y ago
    One could argue that this implies an antitrust issue, no?
    - ceejayoz 8y ago
      If places like Twitter didn't exist, sure.
      - stcredzero 8y ago
        The group of SV CEOs has a disturbing combination of 1) too much uniformity of viewpoint, 2) too much power over discourse, and 3) too much collusive inter-communication. This combination is highly disturbing. EDIT: Given their uniformity of viewpoint and their power, I would expect a moral, intellectually honest, and highly self-aware of such powerful people to act with forbearance and not attempt to use their power to coerce the public. They should be seeking the consent of the weaker. They should be concerned about the consent of the governed. Instead, they are revealing just what they think of the rest of us. Manipulation is not a substitute for consent!
        ceejayoz 8y ago
        If someone's a douchebag and gets banned from all the malls in a city, that doesn't necessarily mean the malls colluded.
        stcredzero 8y ago
        SV CEOs go on interview shows and talk about getting advice from each other. We're not only going by results here, but by self testimony. They also demonstrate the same idiosyncratic biases -- which very often involve the mislabeling of beliefs they don't like. They behave in concert, often taking similar actions on the same target, all on the same day.
        ceejayoz 8y ago
        > SV CEOs go on interview shows and talk about getting advice from each other. This describes basically every big company CEO in existence, and hardly proves the idea of collusion. > They behave in concert, often taking similar actions on the same target, all on the same day. That's hardly surprising. Media attention has a habit of snowballing, even absent active collusion. It's pretty easy to mistake the two.
        stcredzero 8y ago
  - ams6110 8y ago
    Except the primary purpose of a mall is retail business, not message distribution. Facebook's primary purpose (as far as its users are concerned) is to facilitate social interaction. It's almost exactly analagous to the village commons or town square. Or maybe, to a "place of public accommodation." I was originally sympathetic to the "it's their platform, they can do what they want" argument but this has given me something to think about.
    - jonny_eh 8y ago
      I thought Facebook was a living room now, not a town square.
    - deleted 8y ago
      [deleted]
fixermark 8y ago
Company towns were a bizarre (and, arguably, pathological) special case in American history.
- lukifer 8y ago
  I don’t disagree; but, it could be argued that social media giants are equivalently bizarre institutions, that also blur the line between private property and public Commons.
- stcredzero 8y ago
  Company towns were a bizarre (and, arguably, pathological) special case in American history. Social media in the late 20-teens were a bizarre (and, arguably, pathological) special case in world history. https://www.youtube.com/watch?v=wAIP6fI0NAI https://www.youtube.com/watch?v=wAIP6fI0NAI
  - fixermark 8y ago
    No doubt, but that doesn't imply the lessons gleaned from how law applied to company towns are immediately portable to social media.
    - stcredzero 8y ago
      Given the potential for the company to absolutely control discourse within a community, it looks very portable to me.
      - Pharmakon 8y ago
        No matter how much the definition of monopoly is twisted, I’m sorry, but FaceBook isn’t one. Having the biggest audience and being monopolistic are not the same thing. I’ve never used FaceBook yet here we are talking through a similar medium. I don’t use Twitter, but I can still publish a blog. It’s seriously problematic when people try to redefine words to suit the argument of the day, because the erosion of the language persists and communication breaks down. Nothing about FB is equivalent to living in a town owned by your employer, complete with public services, law enforcement, and grocery stores. YouTube is dominant, because poeple make a totally free choice to use it, not because competition can’t exist. Nothing about being dominant in a market or network effects directly implies a monopoly. It’s not as though we’re dealing with Standard Oil, and if you want heat or a running vehicle you do business with them, or get bent!
function_seven 8y ago
I consider the sidewalk to be the last-mile connection to the Internet. The businesses lining that sidewalk may still trespass annoying pamphleteers from within their building.
tedivm 8y ago
This case was about a "company town", where there was very much a blending of public and private. > The Court initially noted that it would be an easy case if the town were a more traditional, publicly administered, municipality. Then, there would be a clear violation of the right to free speech for the government to bar the sidewalk distribution of such material. The question became, therefore, whether or not constitutional freedom of speech protections could be denied simply because a single company held title to the town. It's also not a good idea to bring up this case without bringing up Cyber Promotions v. America Online, in which America Online put up spam filters and Cyber Promotions tried to use the above precedent to say America Online was blocking their right to free speech. You can probably guess by the fact that we still use spam filters how that case came out. As a final note, even that original case has had limitations based off of the type of property- > In Lloyd Corp. v. Tanner, the Supreme Court distinguished a private shopping mall from the company town in Marsh and held that the mall had not been sufficiently dedicated to public use for First Amendment free speech rights to apply within it.
- basch 8y ago
  How about ATT, Verizon, Tmobile/Sprint if they banned certain content from private text messages? On one side, nearly everybody will agree to allow anti spam measures, denying certain unwanted annoying people speech. On the other end, many would object to disallowing private messages based on morality scores of the content.
  - tedivm 8y ago
    Are you asking about my personal opinion, or about what the law currently says? Telecoms are regulated, which is why they can't do things like that. If we want to have the same thing apply to social media then we need to regulate social media to do so. Depending on a court precedent that has already been deemed by other cases not to apply to tech companies isn't going to work- legislation needs to happen.
  - seankimdesign 8y ago
    Is there an established assumption that Facebook will extend their censorship to private messages also? Otherwise this analogy doesn't hold much ground.
Macross8299 8y ago
In the article you linked, Cyber Promotions v. America Online seems far more relevant given that it pertains to an individual's right to use an online, non-state-owned platform as a host for arbitrary speech. In the decision[0], they cite three distinct tests used in previous cases to determine if the company acted as the state by asking if its activities are "state action" (i.e. meaning that removal of speech constitutes a violation of first amendment rights) 1. Is Facebook exercising the exclusive prerogative of the state in its activities? 2. Is Facebook acting with the help of or in concert with a state official? 3. Did the government insinuate itself into a position of interdependence with Facebook to assert itself as a joint participant? All of these hold for the Marsh v. Alabama ruling, but the argument that these tests pass for Facebook's daily business activities is less convincing. [0] https://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=1181&context=btlj https://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?art...
dang 8y ago
This subthread started as a reply to https://news.ycombinator.com/item?id=19503270 https://news.ycombinator.com/item?id=19503270.
Natanael_L 8y ago
https://www.lawfareblog.com/ted-cruz-vs-section-230-misrepresenting-communications-decency-act https://www.lawfareblog.com/ted-cruz-vs-section-230-misrepre... There's good legal arguments for why online publishing is excluded

ceejayoz 8y ago

Of course, the follow-ups are important, too: https://en.wikipedia.org/wiki/Lloyd_Corp._v._Tanner https://en.wikipedia.org/wiki/Lloyd_Corp._v._Tanner I'd put Facebook more in the "mall" example than the "company town" one.

CobrastanJorji 8y ago
The mall got out of it because there were many alternate places to distribute messages, so banning mall speech didn't significantly stifle overall speech. That probably still also applies to Facebook today, but not by a wide margin.
- philwelch 8y ago
  One could argue that this implies an antitrust issue, no?
  - ceejayoz 8y ago
    If places like Twitter didn't exist, sure.
    - stcredzero 8y ago
      The group of SV CEOs has a disturbing combination of 1) too much uniformity of viewpoint, 2) too much power over discourse, and 3) too much collusive inter-communication. This combination is highly disturbing. EDIT: Given their uniformity of viewpoint and their power, I would expect a moral, intellectually honest, and highly self-aware of such powerful people to act with forbearance and not attempt to use their power to coerce the public. They should be seeking the consent of the weaker. They should be concerned about the consent of the governed. Instead, they are revealing just what they think of the rest of us. Manipulation is not a substitute for consent!
      - ceejayoz 8y ago
        If someone's a douchebag and gets banned from all the malls in a city, that doesn't necessarily mean the malls colluded.
        stcredzero 8y ago
        SV CEOs go on interview shows and talk about getting advice from each other. We're not only going by results here, but by self testimony. They also demonstrate the same idiosyncratic biases -- which very often involve the mislabeling of beliefs they don't like. They behave in concert, often taking similar actions on the same target, all on the same day.
        ceejayoz 8y ago
        > SV CEOs go on interview shows and talk about getting advice from each other. This describes basically every big company CEO in existence, and hardly proves the idea of collusion. > They behave in concert, often taking similar actions on the same target, all on the same day. That's hardly surprising. Media attention has a habit of snowballing, even absent active collusion. It's pretty easy to mistake the two.
        stcredzero 8y ago
- ams6110 8y ago
  Except the primary purpose of a mall is retail business, not message distribution. Facebook's primary purpose (as far as its users are concerned) is to facilitate social interaction. It's almost exactly analagous to the village commons or town square. Or maybe, to a "place of public accommodation." I was originally sympathetic to the "it's their platform, they can do what they want" argument but this has given me something to think about.
  - jonny_eh 8y ago
    I thought Facebook was a living room now, not a town square.
  - deleted 8y ago
    [deleted]

fixermark 8y ago

Company towns were a bizarre (and, arguably, pathological) special case in American history.

lukifer 8y ago
I don’t disagree; but, it could be argued that social media giants are equivalently bizarre institutions, that also blur the line between private property and public Commons.
stcredzero 8y ago
Company towns were a bizarre (and, arguably, pathological) special case in American history. Social media in the late 20-teens were a bizarre (and, arguably, pathological) special case in world history. https://www.youtube.com/watch?v=wAIP6fI0NAI https://www.youtube.com/watch?v=wAIP6fI0NAI
- fixermark 8y ago
  No doubt, but that doesn't imply the lessons gleaned from how law applied to company towns are immediately portable to social media.
  - stcredzero 8y ago
    Given the potential for the company to absolutely control discourse within a community, it looks very portable to me.
    - Pharmakon 8y ago
      No matter how much the definition of monopoly is twisted, I’m sorry, but FaceBook isn’t one. Having the biggest audience and being monopolistic are not the same thing. I’ve never used FaceBook yet here we are talking through a similar medium. I don’t use Twitter, but I can still publish a blog. It’s seriously problematic when people try to redefine words to suit the argument of the day, because the erosion of the language persists and communication breaks down. Nothing about FB is equivalent to living in a town owned by your employer, complete with public services, law enforcement, and grocery stores. YouTube is dominant, because poeple make a totally free choice to use it, not because competition can’t exist. Nothing about being dominant in a market or network effects directly implies a monopoly. It’s not as though we’re dealing with Standard Oil, and if you want heat or a running vehicle you do business with them, or get bent!

function_seven 8y ago

I consider the sidewalk to be the last-mile connection to the Internet. The businesses lining that sidewalk may still trespass annoying pamphleteers from within their building.

tedivm 8y ago

This case was about a "company town", where there was very much a blending of public and private. > The Court initially noted that it would be an easy case if the town were a more traditional, publicly administered, municipality. Then, there would be a clear violation of the right to free speech for the government to bar the sidewalk distribution of such material. The question became, therefore, whether or not constitutional freedom of speech protections could be denied simply because a single company held title to the town. It's also not a good idea to bring up this case without bringing up Cyber Promotions v. America Online, in which America Online put up spam filters and Cyber Promotions tried to use the above precedent to say America Online was blocking their right to free speech. You can probably guess by the fact that we still use spam filters how that case came out. As a final note, even that original case has had limitations based off of the type of property- > In Lloyd Corp. v. Tanner, the Supreme Court distinguished a private shopping mall from the company town in Marsh and held that the mall had not been sufficiently dedicated to public use for First Amendment free speech rights to apply within it.

basch 8y ago
How about ATT, Verizon, Tmobile/Sprint if they banned certain content from private text messages? On one side, nearly everybody will agree to allow anti spam measures, denying certain unwanted annoying people speech. On the other end, many would object to disallowing private messages based on morality scores of the content.
- tedivm 8y ago
  Are you asking about my personal opinion, or about what the law currently says? Telecoms are regulated, which is why they can't do things like that. If we want to have the same thing apply to social media then we need to regulate social media to do so. Depending on a court precedent that has already been deemed by other cases not to apply to tech companies isn't going to work- legislation needs to happen.
- seankimdesign 8y ago
  Is there an established assumption that Facebook will extend their censorship to private messages also? Otherwise this analogy doesn't hold much ground.

Macross8299 8y ago

In the article you linked, Cyber Promotions v. America Online seems far more relevant given that it pertains to an individual's right to use an online, non-state-owned platform as a host for arbitrary speech. In the decision[0], they cite three distinct tests used in previous cases to determine if the company acted as the state by asking if its activities are "state action" (i.e. meaning that removal of speech constitutes a violation of first amendment rights) 1. Is Facebook exercising the exclusive prerogative of the state in its activities? 2. Is Facebook acting with the help of or in concert with a state official? 3. Did the government insinuate itself into a position of interdependence with Facebook to assert itself as a joint participant? All of these hold for the Marsh v. Alabama ruling, but the argument that these tests pass for Facebook's daily business activities is less convincing. [0] https://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?article=1181&context=btlj https://scholarship.law.berkeley.edu/cgi/viewcontent.cgi?art...

dang 8y ago

This subthread started as a reply to https://news.ycombinator.com/item?id=19503270 https://news.ycombinator.com/item?id=19503270.

Natanael_L 8y ago

https://www.lawfareblog.com/ted-cruz-vs-section-230-misrepresenting-communications-decency-act https://www.lawfareblog.com/ted-cruz-vs-section-230-misrepre... There's good legal arguments for why online publishing is excluded