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Twitter matters to political discourse, knitting doesn't. Doesn't matter. Twitter is a privately owned platform not a public one. SCOTUS has already said that

Twitter matters to political discourse, knitting doesn't. Doesn't matter. Twitter is a privately owned platform not a public one. SCOTUS has already said that simply being open to the public does not make a business a public platform, see Pruneyard v Robins, applying this reasoning to privately-owned malls. And yes, that makes all the difference, since SCOTUS has repeatedly held that publicly owned spaces like public parks and main streets are subject to first amendment requirements.

Reelin 6y ago
Except it's not nearly as simple as you make out here. In Packingham v. North Carolina (2017) SCOTUS described social media websites as similar to a public square and ruled that the state couldn't block access to them in an overly broad manner. Being open to the public does change how a business is regulated (see the ADA and Civil Rights Act among others) even if it doesn't make it a "public platform" specifically. However, a reasonable case can be made that Twitter has _intentionally_ positioned themselves as a public platform and so the case you cite could be argued not to apply. Alternatively, Twitter could be argued to be editorializing. If that were the case, presumably they wouldn't really be a public platform but rather a publisher. But if that's the case, shouldn't they be held liable for all the nonsense that people post there? The situation isn't clear at all even though many people on both sides of the debate frequently claim that it is.
- gamblor956 6y ago
  That's not at all what Packingham says. That ruling was about a sex offender's right to access a website on which he could engage in first amendment activities without government restriction. It was not about whether a social media website was a public platform or whether the websites had to allow the appellant access. Moreover, many of the activities identified in the ruling also apply to private malls...which the courts have already ruled several times are not public forums for first amendment purposes (Lloyd and Pruneyard). Being open to the public does change how a business is regulated (see the ADA and Civil Rights Act among others) even if it doesn't make it a "public platform" specifically This is true. A statute of Congress can place restrictions on businesses. Last I checked, the President is not a member of Congress, and cannot unilaterally override congressional laws. Moreover, SCOTUS cases have ruled that privately owned facilities are not subject to the "limited purpose" test. It doesn't matter that they've held themselves open to the public, it matters that they're privately owned. (See Lloyd and Pruneyard, explicitly addressing this point.)
  - Reelin 6y ago
    You keep citing cases regarding private malls. I previously pointed out that a reasonable argument can be made as to why that precedent should not apply. I don't claim to know what the outcome of such an argument would be in court, only that it is a reasonable one to make under the circumstances (and thus the situation is fairly complicated). > Last I checked, the President is not a member of Congress, and cannot unilaterally override congressional laws. I never claimed this? I said only that the current situation was not as simple as you made out. (I would also note that the president appears to be targeting Section 230 protections which is quite a different beast.) > That's not at all what Packingham says. Except... it is. In their ruling the court _directly_ compares social media to other venues for public gathering. I'm not claiming that they explicitly rule it to be one way or the other (they don't), but they do repeatedly make direct comparisons that would appear to lean that way.
    - gamblor956 6y ago
      Except... it is. In their ruling the court _directly_ compares social media to other venues for public gathering. I'm not claiming that they explicitly rule it to be one way or the other (they don't), but they do repeatedly make direct comparisons that would appear to lean that way. Except the text of the case itself literally does not do that. You need to read the actual text and not just the summary. Importantly, every time in the case they reference a "social media" website and a form of expression that could occur in a public forum, it is with respect to how the appellant would use that website--to freely express himself under his own first Amendment rights, and they contrast that with the government's attempt to restrict that expression. And as I pointed out, these activities were expressly addressed in the mall cases I cited, in which the courts said it didn't matter that such activities could occur in a mall, what mattered was that the malls were privately owned facilities. (And that is why I keep bringing the cases up--because malls are the closest analog to Twitter. They let people come in and at the time of these cases had millions of customers/visitors annually--on a relative basis, they were more a part of American life back then than Twitter is now.) I would also note that the president appears to be targeting Section 230 protections which is quite a different beast. The Section 230 protected are provided by congressional law, so it's not a different beast. The President does not have the power to target section 230 protections. The executive agencies could arguably make rules to change those protections, if they adhere to the administrative rulemaking process and their rules do not contradict the express text or purpose of the law. I previously pointed out that a reasonable argument can be made as to why that precedent should not apply. No, you didn't. The ADA (1990) and Civil Rights Act (1964), are older unrelated laws governing different issues. The CDA was passed in 1996, and so jurisprudence and the law itself already incorporated existing understandings of both of those laws...as well as the SCOTUS cases addressing the exact points you raised in your comment (i.e., the mall cases you keep dismissing). The CDA was written in a world where private facilities were not public forums as a result of multiple SCOTUS decisions saying they weren't. And the law reflects that.
visarga 6y ago
There is a large gap between the Twitter user base and the number of visitors in a mall. Are you saying that quantity doesn't matter, we should uphold the principle on its own? I think the more people use a platform, the more society needs to regulate it to its benefit.
- gamblor956 6y ago
  Yes. On a relative basis for decades malls were a larger part of American life than Twitter is or ever was. The fraction of people that actually use Twitter is extremely small once you leave SV and Hollywood.

Reelin 6y ago

Except it's not nearly as simple as you make out here. In Packingham v. North Carolina (2017) SCOTUS described social media websites as similar to a public square and ruled that the state couldn't block access to them in an overly broad manner. Being open to the public does change how a business is regulated (see the ADA and Civil Rights Act among others) even if it doesn't make it a "public platform" specifically. However, a reasonable case can be made that Twitter has _intentionally_ positioned themselves as a public platform and so the case you cite could be argued not to apply. Alternatively, Twitter could be argued to be editorializing. If that were the case, presumably they wouldn't really be a public platform but rather a publisher. But if that's the case, shouldn't they be held liable for all the nonsense that people post there? The situation isn't clear at all even though many people on both sides of the debate frequently claim that it is.

gamblor956 6y ago
That's not at all what Packingham says. That ruling was about a sex offender's right to access a website on which he could engage in first amendment activities without government restriction. It was not about whether a social media website was a public platform or whether the websites had to allow the appellant access. Moreover, many of the activities identified in the ruling also apply to private malls...which the courts have already ruled several times are not public forums for first amendment purposes (Lloyd and Pruneyard). Being open to the public does change how a business is regulated (see the ADA and Civil Rights Act among others) even if it doesn't make it a "public platform" specifically This is true. A statute of Congress can place restrictions on businesses. Last I checked, the President is not a member of Congress, and cannot unilaterally override congressional laws. Moreover, SCOTUS cases have ruled that privately owned facilities are not subject to the "limited purpose" test. It doesn't matter that they've held themselves open to the public, it matters that they're privately owned. (See Lloyd and Pruneyard, explicitly addressing this point.)
- Reelin 6y ago
  You keep citing cases regarding private malls. I previously pointed out that a reasonable argument can be made as to why that precedent should not apply. I don't claim to know what the outcome of such an argument would be in court, only that it is a reasonable one to make under the circumstances (and thus the situation is fairly complicated). > Last I checked, the President is not a member of Congress, and cannot unilaterally override congressional laws. I never claimed this? I said only that the current situation was not as simple as you made out. (I would also note that the president appears to be targeting Section 230 protections which is quite a different beast.) > That's not at all what Packingham says. Except... it is. In their ruling the court _directly_ compares social media to other venues for public gathering. I'm not claiming that they explicitly rule it to be one way or the other (they don't), but they do repeatedly make direct comparisons that would appear to lean that way.
  - gamblor956 6y ago
    Except... it is. In their ruling the court _directly_ compares social media to other venues for public gathering. I'm not claiming that they explicitly rule it to be one way or the other (they don't), but they do repeatedly make direct comparisons that would appear to lean that way. Except the text of the case itself literally does not do that. You need to read the actual text and not just the summary. Importantly, every time in the case they reference a "social media" website and a form of expression that could occur in a public forum, it is with respect to how the appellant would use that website--to freely express himself under his own first Amendment rights, and they contrast that with the government's attempt to restrict that expression. And as I pointed out, these activities were expressly addressed in the mall cases I cited, in which the courts said it didn't matter that such activities could occur in a mall, what mattered was that the malls were privately owned facilities. (And that is why I keep bringing the cases up--because malls are the closest analog to Twitter. They let people come in and at the time of these cases had millions of customers/visitors annually--on a relative basis, they were more a part of American life back then than Twitter is now.) I would also note that the president appears to be targeting Section 230 protections which is quite a different beast. The Section 230 protected are provided by congressional law, so it's not a different beast. The President does not have the power to target section 230 protections. The executive agencies could arguably make rules to change those protections, if they adhere to the administrative rulemaking process and their rules do not contradict the express text or purpose of the law. I previously pointed out that a reasonable argument can be made as to why that precedent should not apply. No, you didn't. The ADA (1990) and Civil Rights Act (1964), are older unrelated laws governing different issues. The CDA was passed in 1996, and so jurisprudence and the law itself already incorporated existing understandings of both of those laws...as well as the SCOTUS cases addressing the exact points you raised in your comment (i.e., the mall cases you keep dismissing). The CDA was written in a world where private facilities were not public forums as a result of multiple SCOTUS decisions saying they weren't. And the law reflects that.

visarga 6y ago

There is a large gap between the Twitter user base and the number of visitors in a mall. Are you saying that quantity doesn't matter, we should uphold the principle on its own? I think the more people use a platform, the more society needs to regulate it to its benefit.

gamblor956 6y ago
Yes. On a relative basis for decades malls were a larger part of American life than Twitter is or ever was. The fraction of people that actually use Twitter is extremely small once you leave SV and Hollywood.