There’s a constitutional right to use social media, US Supreme Court says | Hacker News Reader

There’s a constitutional right to use social media, US Supreme Court says

arstechnica.com

15 pointsdredmorbius15 comments

Here's a fun thought: If a government sold off all roads and all public spaces, would there be any place left where you had the right of free speech?

No, and this is a growing problem with many public spaces becoming privately owned, like giant Malls/shopping centers taking over town squares. This is a constant battle world wide against developers and private interests, it should be a battle online too, we should be refusing to use proprietary communication platforms.

In particular, the decision addresses the question, and scope, of necessity of use of social media:

"Social media allows users to gain access to information and communicate with one another about it on any subject that might come to mind... By prohibiting sex offenders from using those websites, North Carolina with one broad stroke bars access to what, for many, are the principal sources for knowing current events, checking ads for employment, speaking and listening in the modern public square, and otherwise exploring the vast realms of human thought and knowledge. These websites can provide perhaps the most powerful mechanisms available to a private citizen to make his or her voice heard."

This answers a frequently-heard claim that restriction (or abstension) from use is any more a reasonable choice.

Facebook is still free to ban him. (It's against their ToS.) But the government can't order it.

Considering this ruling, CAN Facebook continue to ban sex offenders?

Yeah, free speech doesn't apply to private companies. Facebook banning you doesn't count as a violation of your free speech rights. They ban people all the time.

Under present SCOTUS precedent, free speech rights don't extend to privately-owned physical space, though the matter remains in contention in numerous states:

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=139661

The FCC has some guidance on free speech as pertains to broadcast (television, radio) media:

https://www.fcc.gov/consumers/guides/fcc-and-freedom-speech

"Individual radio and television station licensees are responsible for selecting all broadcast matter and for determining how their stations can best serve their communities. Broadcast licensees are responsible for choosing both the entertainment programming and the programming concerning local issues, news, public affairs, religion, sports and other subjects to be aired by the station."

The EFF's issue centre on free speech is conspicuously silent on the specific matter of major private-platform provider rights and/or obligations:

https://www.eff.org/issues/free-speech

The Net Neutrality debate touches on this question in part, and the pro-net-neutrality argument generally contradicts your viewpoint:

https://www.aclu.org/feature/what-net-neutrality

Much of the question revolves around the definition of "common carrier", and who's included. By one argument, a constitutionally protected service providing common access to billions of people, might just conceivably fit that definition.

https://www.nytimes.com/2014/05/11/business/defending-the-op...

> Under present SCOTUS precedent, free speech rights don't extend to privately-owned physical space

Yes, they do; they don't apply against private actors, including private property owners, because free speech rights are limits on the actions of government.

But it's the actor, not the space, that is at issue.

Clarifying: whilst the government cannot order you off of a specific public space on the basis of the content of your message, the agent of a privately-owned space can.

From the perspective of the speaker, free speech rights do not extend to such spaces. The mechanism and dynamics are somewhat arbitrary.

The fact that the government might act, by proxy, to enforce the wishes of the property owner strikes me as an interesting aspect of this rationale.

> From the perspective of the speaker, free speech rights do not extend to such spaces.

The exact same free speech rights exist in those spaces as in any other spaces. The scope of those rights, irrespective of the space, extends only to freedom from content-based restrictions imposed by government. They don't include freedom from having private licenses you may have been extended withdrawn based on speech acts (such licenses can be withdrawn whether or not you are exercising them at the time of the speech act.)

Say, for instance, you don't like that someone is advocating neo-Nazi causes in a public space and choose to withdraw a standing invitation you had previously extended to them due to that conduct: this is legal private content-based discrimination for speech on public property. It doesn't mean free speech rights don't extend to public property, it just means that private discriminstion was never within the scope of what those rights protect against.

I've acknowledged that.

We're discussing different aspects, and implications, of the law.

You also appear to be studiously avoiding acknowledging my point.

Cheers.

> You also appear to be studiously avoiding acknowledging my point.

I'm actually trying to get you to clearly articulate your point by avoiding false descriptions; descriptively, there is an issue with private actor impacts on pragmatic free speech, but it's not equivalent to free speech rights not be existing in private physical spaces; it's both bigger (private discrimination can have an impact on expression anywhere, and isn't restricted to speech occurring in private spaces) and smaller (in that free speech rights are, in fact, in full legal effect everywhere, including private spaces) than that.

But I don't know if the point obscured by your inaccurate description is merely to point to that general fact or to make some deeper point based on it.

Since the matter appears to be exemplified in the Askin article I've cited at the top of this thread, and I'm trying to honestly and fairly present the facts of current law and informed discussion, I'll simply quote Aksin's abstract:

Since the Supreme Court reinforced the state-action doctrine in the early Seventies and ruled that privately owned shopping malls could not qualify as a public forums under the First Amendment, efforts to protect free expression at privately-owned public gathering places have shifted to state courts.

That is: privately-owned, publicly-accessed spaces "do not qualify as a public forum". As a consequence, "courts must now consider the constitutional obligation of private communities." This includes, for example, privately-owned condominiums -- people's homes: "In a case involving a high-rise condominium, the court held that once the condo association opens a forum for some speech, it must allow access to opposing speech."

You might argue that Prof. Askin is misrepresenting the state of law as of 1999. That may be the case -- I read and follow some legal discussion, but haven't formally studied law myself.

I find your characterisation of my descriptions as "false" exceedingly uncharitable.

And with that I'm dropping this thread.

But free speech rights do extend to those private spaces since the government can't of it's own accord order you out of that private space any more than it could a public space, nor punish you for speech per se in private spaces. Conversely, if by your speech or actions you violate the rights of others, whether it be some general right like private property rights or some privilege arising from private contract (e.g. an NDA), the government (even if only government qua the courts) can punish you regardless of whether you are in a public space or private. Hence we can say that the nature of the space you occupy is not relevant in general to freedom of speech, only when the specific nature of the public space further distinguishes cases where the government (qua the executive) is acting as adversary of its own accord. In my view it comes down to the distinction between places "owned" by the government as if by a private owner, and places "owned" by the government as custodian of the commons, but that's obviously an insufficient legal distinction.

The question is one of de facto free speech rights, given access to physical space, platforms, or media, especially those removed from the common weal by state intervention in the first place: broadcast spectrum, land.

If you look to court decisions, you'll find that the strict literalism you and others are following is often tempered by a pragmatic consideration.

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