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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 Const

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.

raxxorrax 5y ago
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.
- adam_arthur 5y ago
  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.
  - raxxorrax 5y ago
    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...
pixelgeek 5y ago
> 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. Any case law to that effect?
- tolstoshev 5y ago
  https://en.wikipedia.org/wiki/Pruneyard_Shopping_Center_v._Robins https://en.wikipedia.org/wiki/Pruneyard_Shopping_Center_v._R...
  - colejohnson66 5y ago
    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.
  - jcranmer 5y ago
    Two key reasons why Pruneyard is inapposite: 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.
- adam_arthur 5y ago
  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. The new era of big tech harkens back to the company store/company scrip days, which are widely deemed to have been monopolistic: https://en.m.wikipedia.org/wiki/Company_store https://en.m.wikipedia.org/wiki/Company_store
jcranmer 5y ago
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).
- adam_arthur 5y ago
  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.
  - tptacek 5y ago
op00to 5y ago
I’m pretty confident it wouldn’t.
- adam_arthur 5y ago
  You know prior case law isn't the forever definer for future rulings, and has been overturned many times right? Let's see :)

raxxorrax 5y ago

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.

adam_arthur 5y ago
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.
- raxxorrax 5y ago
  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...

pixelgeek 5y ago

> 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. Any case law to that effect?

tolstoshev 5y ago
https://en.wikipedia.org/wiki/Pruneyard_Shopping_Center_v._Robins https://en.wikipedia.org/wiki/Pruneyard_Shopping_Center_v._R...
- colejohnson66 5y ago
  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.
- jcranmer 5y ago
  Two key reasons why Pruneyard is inapposite: 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.
adam_arthur 5y ago
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. The new era of big tech harkens back to the company store/company scrip days, which are widely deemed to have been monopolistic: https://en.m.wikipedia.org/wiki/Company_store https://en.m.wikipedia.org/wiki/Company_store

jcranmer 5y ago

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).

adam_arthur 5y ago
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.
- tptacek 5y ago

op00to 5y ago

I’m pretty confident it wouldn’t.

adam_arthur 5y ago
You know prior case law isn't the forever definer for future rulings, and has been overturned many times right? Let's see :)