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Its an interesting thought experiment to assess in what ways Twitter is a "private website". It really is a public web space that is operated by a private comp

Its an interesting thought experiment to assess in what ways Twitter is a "private website". It really is a public web space that is operated by a private company, but I can't help but feel that the nuances and similarities of what Twitter really is and what responsibility they truly hold in society is above the courts comprehension.

thrusong 6y ago
Do you have the right to stand in your community's biggest mall screaming racist things or does the property owner/operator have the right to remove you from the premise?
- Wowfunhappy 6y ago
  To play devil's advocate, you can't do that in a public park either. You can be arrested for disturbing the peace or some such. So I'm not sure it's necessarily about private vs public.
  - komali2 6y ago
    I'm not aware of it being illegal to stand on a soapbox and say racist things in a public park. If you're screaming at the top of your lungs, sure, maybe?
    - Wowfunhappy 6y ago
      Well, yeah, I suppose it depends how loud you're screaming. I was imagining someone shouting as loud as possible, which you'd definitely get stopped for in many places.
      - laughinghan 6y ago
        Aren't you just talking about the volume then? You could be screaming the most wholesome things about unicorns and rainbows and still be loud enough to be a public nuisance, and loud enough that authorities will have the right to ask you to pipe down. In America, no matter how big of a community mall, management can always remove you for good reasons (using racial slurs, even at normal volume), silly reasons (they didn't like the color of your hat), or no reason at all, as long as it's not for a prohibited reason (because of your race). Whereas authorities cannot remove you from a public square for no reason or silly reasons, only for good reasons specifically identified by law (like public nuisance).
        thephyber 6y ago
        > Whereas authorities cannot remove you from a public square for no reason or silly reasons, only for good reasons specifically identified by law (like public nuisance). It depends if you are reported and what for. American authorities have prosecutorial discretion, so they can choose to overlook the "wholesome things shouter", but may choose to charge the "racist shouter" with a vaguely defined law like "disturbing the peace". There are enough laws like "disturbing the peace", "trespassing", and "obscenity" which are largely subjective.
  - epicureanideal 6y ago
    And this is where the courts are also going to need to do some work to decide what exactly is "disturbing the peace". What if someone says that wearing a red hat is "disturbing the peace"? What if someone says wearing an "I'm with her" shirt is disturbing the peace? Who decides when simply displaying a political view is disturbing the peace? The left can attempt to immediately equate everything to the right of Obama with Hitler. The right can attempt to immediately equate everything to the left of Reagan with Stalin and Mao. Who is going to sort this out? Both sides might think they're being perfectly reasonable about their characterization of the other side. And if a judge on one side agrees with them, the alternative viewpoint becomes criminal hate speech. This is very dangerous.
  - snowwrestler 6y ago
    You actually can do this in on public property; see for example the Westboro Baptist Church, which funded itself in part by winning lawsuits against government entities that tried to stop them.
  - thephyber 6y ago
    But the rules for many public spaces and all private spaces are fundamentally different because they get to define who can use the property and in what capacity, or face trespassing charges. I don't see banning a user from social media sites very different from exercising trespassing laws. Should Republicans be sheltered from trespass laws just because the owner of the property might not be a Republican? Perhaps the best way for social media websites to avoid being is to more clearly define what content violates their ToS. I suspect most people don't read the ToS and certainly don't know how every company chooses to enforce their ToS with enough detail, and that's almost certainly the confusion when social media users complain about persecution.
- takeda 6y ago
  If you were a president visiting that mall, you would be allowed to do a lot of things that ordinary people would be kicked for.
  - rbanffy 6y ago
    And we need to consider this. By Twitter's ToS, he should have lost his account a long time ago.
  - snowwrestler 6y ago
    Sure but the mall would certainly be within its rights to put up a sign saying "the president might not be telling the truth today."
    - takeda 6y ago
      But it didn't. Same was with Twitter. Trump constantly was breaking their TOS a lot of people lost their access for much much less.
  - evan_ 6y ago
    The President can only play in the mall fountain or whatever if the mall management says he can. If they want to boot him they can. The president is not a king.
    - takeda 6y ago
      You know well that it's not how it works in real life. Everyone would be afraid of repercussions to their business, kind of like the article we are currently discussing.
      - evan_ 6y ago
        it's not how it works if you don't want to get harassed and attacked on twitter (and not on twitter), but you won't actually go to jail over it.
- epicureanideal 6y ago
  The Pruneyard decision [1] though did conclude that the sidewalks (even privately owned walkways) outside a business were quasi-public spaces analogous to public squares. [1] https://www.law.cornell.edu/supremecourt/text/447/74 https://www.law.cornell.edu/supremecourt/text/447/74 About your specific question, I would say "standing INSIDE the mall screaming" (screaming anything) would be more similar to posting large amounts of text on someone else's personal Twitter feed. Whereas simply having your own personal Twitter and saying things that someone doesn't like would be more like standing on the walkway outside a business. Also, I read the draft of Trump's order posted on HN last night, and it doesn't say that lewd or obscene content can't be removed. If you start using the N word or posting pornography, I think that's still legitimate for companies to remove. The problem is that the idea of "hate speech" is being weaponized. If someone simply wears a MAGA hat, that's being called "threatening" or "racist". If someone expresses economically protectionist views, they're called "racist" even though protectionism was used centuries ago to protect European countries from other European countries and has nothing to do with "race". The right could similarly weaponize the idea of "hate speech" by saying that any time anyone mentions any kind of social program spending, that's "threatening" because that's akin to "communism, which has killed hundreds of millions of people". Now, plenty of conservatives do say they're concerned about the slippery slope, but they don't immediately equate "we should give housing to the homeless" with "put the rich in the gulags", the way the vocal far left equates "maybe we should reduce taxes a bit" with "they're racists who want poor minority people to starve to death".
  - pnw_hazor 6y ago
    https://www.law.cornell.edu/constitution-conan/amendment-1/quasi-public-places https://www.law.cornell.edu/constitution-conan/amendment-1/q... edit: deleted - the link did not support my claim.
    - gamblor956 6y ago
      Note that under Pruneyard and Lloyd the limited purpose invitation standard and focus does not apply to private spaces. Thus it matters whether the land is private or public, not the purpose for which the public is invited to enter. The "limited purpose" test examines public or quasi public facilities (i.e., joint public-private parnerships), like airports, to determine whether they would be considered public forums for free speech purposes. (See Hari Krishna vs Lee) Additionally, public sidewalks in front of stores are considered public areas because of the public easement to use the sidewalk. A private sidewalk is not a public area for free speech purposes (see Lloyd). [edit: fixed Logan to Lloyd]
- pnw_hazor 6y ago
  If Twitter wants to become a publisher they can edit or curate their content to their heart's content. Web publishers do not need any special protection from well established jurisprudence governing other publishers. It made some sense in the early days when it was unclear how things would turn out, now those protections should be rolled backed or adjusted.
- basementcat 6y ago
  Some malls have "free speech areas" (possibly mandated by local ordinance) and occasionally some groups and individuals do exactly that.
- gamblor956 6y ago
  Pruneyard v. Robins says the private owner of the mall can kick you out. But note that state laws may provide state-level free speech rights separately from the First Amendment (and several states have such laws). In contrast, a public space like a public park is subject to free speech requirements, which is why the Westboro church can scream vile racist things from a playground.
krapp 6y ago
>It really is a public web space that is operated by a private company No, it isn't, any more than a store is a public space because it has windows the public can see into. You have to sign up for a Twitter account and accept their terms of service to post on the site. It's a private platform run by a private company for its own private business interests.
- Zecar 6y ago
  Twitter has over 300 million monthly active users. That is roughly equal to the entire population of the United States. You can't see any reason why they shouldn't be allowed to have total control over political discourse with no accountability? No reason at all?
- phkahler 6y ago
  You have to pay the old telephone company and it's a lot more private communication than Twitter. Yet they had common carrier statis, which is how we should want ISPs regulated. Where twitter and friends fit simply hasn't been defined yet.
  - komali2 6y ago
    The argument falls apart at the ISP level - why does the UN consider internet a human right, but not, specifically, access to Twitter? It may seem like there's no distinction at all but it is there and it is important.
    - threeseed 6y ago
      Much better examples than Twitter. If I have the right to every website then how about password-protected ones. Do I then have the right to demand that Apple give me access to everyone's iCloud website ?
  - rbanffy 6y ago
    Because you need a phone to phone someone, call an ambulance or the police. You need an ISP to get to the internet. You don't need Twitter.
Joeri 6y ago
One way of looking at it is that the internet is the public space, and twitter is a very large private building in that space. Trump can start his own blog any time he wants, hosted on his own site, and be in the unrestricted public space.
caseysoftware 6y ago
It's further complicated by the people who sued Trump for blocking them. They won, he had to unblock them. Considering they could log out (or open a private tab) and view the content, obviously it wasn't access to the information that was fundamental but the act of the President taking a step to reduce someone's access. With that in mind, does the host have the authority to take the same action? Why or why not? This is not a 1st Amendment issue - after all Trump blocking someone doesn't limit their ability to tweet him or at all - but it's a really weird spot of free speech vs private property vs public forum vs public access vs.. ?
- akersten 6y ago
  As a government official, you cannot take action to try to impede someone's access to your official statements. That is independent of the platform, and independent of how much work someone has to do to still access the information.
  - mc32 6y ago
    But a private company can take action to impede everyone’s access to an official’s statements if they “suppress” those statements... that would mean Twitter has to allow anything any public official, at least in the US, broadcasts via that medium...
    - caseysoftware 6y ago
      You're getting downvoted to oblivion but I think that's a fundamental question in all of this. Does a private company have the authority to impede access to Official Statements? If so, under what conditions? If no, is it "never"?
      - gamblor956 6y ago
        This fundamental question has already been addressed by the courts many times. The answer is yes to your first question. A private company is not required to make available "Official Statements" (whatever that means) using its own resources. The government (in the US at least) must pay for publication and dissemination of "Official Statements."
bosswipe 6y ago
Should breitbart.com be forced to allow liberals comments?
- deleted 6y ago
  [deleted]
- anewdirection 6y ago
  I mean, they do allow them, they just get drowned out.
threeseed 6y ago
Twitter is not a monopoly therefore every web site would be considered a public web space. And so if I run a knitting forum I am not allowed to restrict people who want to turn it into a pornography one. And how would it work for spam. This could end up in a situation where a large spammer could force websites to not remove spam. It sounds unworkable and over the top just to protect some people who aren't even having their rights impeded.
- partyboat1586 6y ago
  Twitter is not equivalent to some obscure knitting forum. It is huge. So huge that it gets quoted in nearly every mainstream media article. Twitter matters to political discourse, knitting doesn't.
  - roganp 6y ago
    The owners of printing presses have even more power, but the government does not mandate open access to those machines for dispensing speech. Unfettered access to twitter is not akin to free speech.
    - partyboat1586 6y ago
      Twitter is essentially a big public square the results of which end up getting printed by mainstream press. Publishers are also under more legal restrictions than Twitter is.
      - belltaco 6y ago
        No, publishers can be as biased as they want, unlike the new requirements here.
        perf1 6y ago
        Twitter can also go the publisher route and be biased as much as they want.
downvoteme1 6y ago
Why do you think Twitter is a public space. Your use of twitter is governed by agreeing to its T&C’s. You agree to them when signing up and violating them will result in bans.
- partyboat1586 6y ago
  You're just repeating what the current state of affairs is. Doesn't mean it has to stay that way.
  - pnw_hazor 6y ago
    It would be surprising, but not irrational if courts construe Twitter as a quasi-public forum. Or, on the other hand, if Twitter continues to exercise viewpoint discrimination, it would be reasonable for them to be construed as a publisher and accept the liability that comes along with it.
  - FireBeyond 6y ago
    Then perhaps let us debate that in a reasoned and considered manner, rather than an executive order that Trump himself describe as a lashing out at Twitter.
    - Karunamon 6y ago
      The executive order signed today is far too detailed and far too nuanced to support the idea that its cause for existence is Trump being upset at Twitter a few days ago. This has been being prepared for a long time.
      - FireBeyond 6y ago
        You underestimate the productivity of some underlings and lawyers pulling an all-nighter. It's also not Day 1 of "Trump being upset at Twitter for much the same reasons", so no doubt there's been a plan. But ascribing the timing of this EO to "just a coincidence" stretches credulity, to me.
deleted 6y ago
[deleted]
2019-nCoV 6y ago
If you're intellectually honest and advocate for a system that controls people, turn over the keys to your enemies for a dry run.
dragonwriter 6y ago
It's arguably a public accommodation, but public accommodations are still private spaces.

thrusong 6y ago

Do you have the right to stand in your community's biggest mall screaming racist things or does the property owner/operator have the right to remove you from the premise?

Wowfunhappy 6y ago
To play devil's advocate, you can't do that in a public park either. You can be arrested for disturbing the peace or some such. So I'm not sure it's necessarily about private vs public.
- komali2 6y ago
  I'm not aware of it being illegal to stand on a soapbox and say racist things in a public park. If you're screaming at the top of your lungs, sure, maybe?
  - Wowfunhappy 6y ago
    Well, yeah, I suppose it depends how loud you're screaming. I was imagining someone shouting as loud as possible, which you'd definitely get stopped for in many places.
    - laughinghan 6y ago
      Aren't you just talking about the volume then? You could be screaming the most wholesome things about unicorns and rainbows and still be loud enough to be a public nuisance, and loud enough that authorities will have the right to ask you to pipe down. In America, no matter how big of a community mall, management can always remove you for good reasons (using racial slurs, even at normal volume), silly reasons (they didn't like the color of your hat), or no reason at all, as long as it's not for a prohibited reason (because of your race). Whereas authorities cannot remove you from a public square for no reason or silly reasons, only for good reasons specifically identified by law (like public nuisance).
      - thephyber 6y ago
        > Whereas authorities cannot remove you from a public square for no reason or silly reasons, only for good reasons specifically identified by law (like public nuisance). It depends if you are reported and what for. American authorities have prosecutorial discretion, so they can choose to overlook the "wholesome things shouter", but may choose to charge the "racist shouter" with a vaguely defined law like "disturbing the peace". There are enough laws like "disturbing the peace", "trespassing", and "obscenity" which are largely subjective.
- epicureanideal 6y ago
  And this is where the courts are also going to need to do some work to decide what exactly is "disturbing the peace". What if someone says that wearing a red hat is "disturbing the peace"? What if someone says wearing an "I'm with her" shirt is disturbing the peace? Who decides when simply displaying a political view is disturbing the peace? The left can attempt to immediately equate everything to the right of Obama with Hitler. The right can attempt to immediately equate everything to the left of Reagan with Stalin and Mao. Who is going to sort this out? Both sides might think they're being perfectly reasonable about their characterization of the other side. And if a judge on one side agrees with them, the alternative viewpoint becomes criminal hate speech. This is very dangerous.
- snowwrestler 6y ago
  You actually can do this in on public property; see for example the Westboro Baptist Church, which funded itself in part by winning lawsuits against government entities that tried to stop them.
- thephyber 6y ago
  But the rules for many public spaces and all private spaces are fundamentally different because they get to define who can use the property and in what capacity, or face trespassing charges. I don't see banning a user from social media sites very different from exercising trespassing laws. Should Republicans be sheltered from trespass laws just because the owner of the property might not be a Republican? Perhaps the best way for social media websites to avoid being is to more clearly define what content violates their ToS. I suspect most people don't read the ToS and certainly don't know how every company chooses to enforce their ToS with enough detail, and that's almost certainly the confusion when social media users complain about persecution.
takeda 6y ago
If you were a president visiting that mall, you would be allowed to do a lot of things that ordinary people would be kicked for.
- rbanffy 6y ago
  And we need to consider this. By Twitter's ToS, he should have lost his account a long time ago.
- snowwrestler 6y ago
  Sure but the mall would certainly be within its rights to put up a sign saying "the president might not be telling the truth today."
  - takeda 6y ago
    But it didn't. Same was with Twitter. Trump constantly was breaking their TOS a lot of people lost their access for much much less.
- evan_ 6y ago
  The President can only play in the mall fountain or whatever if the mall management says he can. If they want to boot him they can. The president is not a king.
  - takeda 6y ago
    You know well that it's not how it works in real life. Everyone would be afraid of repercussions to their business, kind of like the article we are currently discussing.
    - evan_ 6y ago
      it's not how it works if you don't want to get harassed and attacked on twitter (and not on twitter), but you won't actually go to jail over it.
epicureanideal 6y ago
The Pruneyard decision [1] though did conclude that the sidewalks (even privately owned walkways) outside a business were quasi-public spaces analogous to public squares. [1] https://www.law.cornell.edu/supremecourt/text/447/74 https://www.law.cornell.edu/supremecourt/text/447/74 About your specific question, I would say "standing INSIDE the mall screaming" (screaming anything) would be more similar to posting large amounts of text on someone else's personal Twitter feed. Whereas simply having your own personal Twitter and saying things that someone doesn't like would be more like standing on the walkway outside a business. Also, I read the draft of Trump's order posted on HN last night, and it doesn't say that lewd or obscene content can't be removed. If you start using the N word or posting pornography, I think that's still legitimate for companies to remove. The problem is that the idea of "hate speech" is being weaponized. If someone simply wears a MAGA hat, that's being called "threatening" or "racist". If someone expresses economically protectionist views, they're called "racist" even though protectionism was used centuries ago to protect European countries from other European countries and has nothing to do with "race". The right could similarly weaponize the idea of "hate speech" by saying that any time anyone mentions any kind of social program spending, that's "threatening" because that's akin to "communism, which has killed hundreds of millions of people". Now, plenty of conservatives do say they're concerned about the slippery slope, but they don't immediately equate "we should give housing to the homeless" with "put the rich in the gulags", the way the vocal far left equates "maybe we should reduce taxes a bit" with "they're racists who want poor minority people to starve to death".
- pnw_hazor 6y ago
  https://www.law.cornell.edu/constitution-conan/amendment-1/quasi-public-places https://www.law.cornell.edu/constitution-conan/amendment-1/q... edit: deleted - the link did not support my claim.
  - gamblor956 6y ago
    Note that under Pruneyard and Lloyd the limited purpose invitation standard and focus does not apply to private spaces. Thus it matters whether the land is private or public, not the purpose for which the public is invited to enter. The "limited purpose" test examines public or quasi public facilities (i.e., joint public-private parnerships), like airports, to determine whether they would be considered public forums for free speech purposes. (See Hari Krishna vs Lee) Additionally, public sidewalks in front of stores are considered public areas because of the public easement to use the sidewalk. A private sidewalk is not a public area for free speech purposes (see Lloyd). [edit: fixed Logan to Lloyd]
pnw_hazor 6y ago
If Twitter wants to become a publisher they can edit or curate their content to their heart's content. Web publishers do not need any special protection from well established jurisprudence governing other publishers. It made some sense in the early days when it was unclear how things would turn out, now those protections should be rolled backed or adjusted.
basementcat 6y ago
Some malls have "free speech areas" (possibly mandated by local ordinance) and occasionally some groups and individuals do exactly that.
gamblor956 6y ago
Pruneyard v. Robins says the private owner of the mall can kick you out. But note that state laws may provide state-level free speech rights separately from the First Amendment (and several states have such laws). In contrast, a public space like a public park is subject to free speech requirements, which is why the Westboro church can scream vile racist things from a playground.

krapp 6y ago

>It really is a public web space that is operated by a private company No, it isn't, any more than a store is a public space because it has windows the public can see into. You have to sign up for a Twitter account and accept their terms of service to post on the site. It's a private platform run by a private company for its own private business interests.

Zecar 6y ago
Twitter has over 300 million monthly active users. That is roughly equal to the entire population of the United States. You can't see any reason why they shouldn't be allowed to have total control over political discourse with no accountability? No reason at all?
phkahler 6y ago
You have to pay the old telephone company and it's a lot more private communication than Twitter. Yet they had common carrier statis, which is how we should want ISPs regulated. Where twitter and friends fit simply hasn't been defined yet.
- komali2 6y ago
  The argument falls apart at the ISP level - why does the UN consider internet a human right, but not, specifically, access to Twitter? It may seem like there's no distinction at all but it is there and it is important.
  - threeseed 6y ago
    Much better examples than Twitter. If I have the right to every website then how about password-protected ones. Do I then have the right to demand that Apple give me access to everyone's iCloud website ?
- rbanffy 6y ago
  Because you need a phone to phone someone, call an ambulance or the police. You need an ISP to get to the internet. You don't need Twitter.

Joeri 6y ago

One way of looking at it is that the internet is the public space, and twitter is a very large private building in that space. Trump can start his own blog any time he wants, hosted on his own site, and be in the unrestricted public space.

caseysoftware 6y ago

It's further complicated by the people who sued Trump for blocking them. They won, he had to unblock them. Considering they could log out (or open a private tab) and view the content, obviously it wasn't access to the information that was fundamental but the act of the President taking a step to reduce someone's access. With that in mind, does the host have the authority to take the same action? Why or why not? This is not a 1st Amendment issue - after all Trump blocking someone doesn't limit their ability to tweet him or at all - but it's a really weird spot of free speech vs private property vs public forum vs public access vs.. ?

akersten 6y ago
As a government official, you cannot take action to try to impede someone's access to your official statements. That is independent of the platform, and independent of how much work someone has to do to still access the information.
- mc32 6y ago
  But a private company can take action to impede everyone’s access to an official’s statements if they “suppress” those statements... that would mean Twitter has to allow anything any public official, at least in the US, broadcasts via that medium...
  - caseysoftware 6y ago
    You're getting downvoted to oblivion but I think that's a fundamental question in all of this. Does a private company have the authority to impede access to Official Statements? If so, under what conditions? If no, is it "never"?
    - gamblor956 6y ago
      This fundamental question has already been addressed by the courts many times. The answer is yes to your first question. A private company is not required to make available "Official Statements" (whatever that means) using its own resources. The government (in the US at least) must pay for publication and dissemination of "Official Statements."

bosswipe 6y ago

Should breitbart.com be forced to allow liberals comments?

deleted 6y ago
[deleted]
anewdirection 6y ago
I mean, they do allow them, they just get drowned out.

threeseed 6y ago

Twitter is not a monopoly therefore every web site would be considered a public web space. And so if I run a knitting forum I am not allowed to restrict people who want to turn it into a pornography one. And how would it work for spam. This could end up in a situation where a large spammer could force websites to not remove spam. It sounds unworkable and over the top just to protect some people who aren't even having their rights impeded.

partyboat1586 6y ago
Twitter is not equivalent to some obscure knitting forum. It is huge. So huge that it gets quoted in nearly every mainstream media article. Twitter matters to political discourse, knitting doesn't.
- roganp 6y ago
  The owners of printing presses have even more power, but the government does not mandate open access to those machines for dispensing speech. Unfettered access to twitter is not akin to free speech.
  - partyboat1586 6y ago
    Twitter is essentially a big public square the results of which end up getting printed by mainstream press. Publishers are also under more legal restrictions than Twitter is.
    - belltaco 6y ago
      No, publishers can be as biased as they want, unlike the new requirements here.
      - perf1 6y ago
        Twitter can also go the publisher route and be biased as much as they want.

downvoteme1 6y ago

Why do you think Twitter is a public space. Your use of twitter is governed by agreeing to its T&C’s. You agree to them when signing up and violating them will result in bans.

partyboat1586 6y ago
You're just repeating what the current state of affairs is. Doesn't mean it has to stay that way.
- pnw_hazor 6y ago
  It would be surprising, but not irrational if courts construe Twitter as a quasi-public forum. Or, on the other hand, if Twitter continues to exercise viewpoint discrimination, it would be reasonable for them to be construed as a publisher and accept the liability that comes along with it.
- FireBeyond 6y ago
  Then perhaps let us debate that in a reasoned and considered manner, rather than an executive order that Trump himself describe as a lashing out at Twitter.
  - Karunamon 6y ago
    The executive order signed today is far too detailed and far too nuanced to support the idea that its cause for existence is Trump being upset at Twitter a few days ago. This has been being prepared for a long time.
    - FireBeyond 6y ago
      You underestimate the productivity of some underlings and lawyers pulling an all-nighter. It's also not Day 1 of "Trump being upset at Twitter for much the same reasons", so no doubt there's been a plan. But ascribing the timing of this EO to "just a coincidence" stretches credulity, to me.

deleted 6y ago

[deleted]

2019-nCoV 6y ago

If you're intellectually honest and advocate for a system that controls people, turn over the keys to your enemies for a dry run.

dragonwriter 6y ago

It's arguably a public accommodation, but public accommodations are still private spaces.