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Social Media and the First Amendment

Discussion in 'Politics' started by Agayek, Jun 20, 2017.

  1. Agayek

    Agayek Dark Lord

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    So today, I saw an article about the Supreme Court essentially calling Facebook, Twitter, et al "the modern public square", as they struck down a North Carolina law that forbid sex offenders from having social media accounts.

    The bit I want to talk about is quoted here:

    https://arstechnica.com/tech-policy...xcluded-from-social-media-supreme-court-says/

    This decision, on its own, seems fairly narrow, but it's got some far-reaching implications. If social media is "the modern public square", what does that mean when it comes to access to social media? What would that make banning a user?

    It seemed like a good topic for conversation, and I was curious what DLP has to say on it.

    Personally, I like the idea. I definitely approve of extending first amendment rights into the digital space, though, as always, some implementation details will need to be done carefully. I've always felt that bans are significantly worse than simply emphasizing the ignore function, but that's just me.

    If nothing else, I'm certainly intrigued by what the Court means when they say "This case is one of the first this Court has taken to address the relationship between the First Amendment and the modern Internet", and what they see that relationship as.
     
  2. Aurion

    Aurion Headmaster

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    Not all that much, to be quite honest. This was one of those bills that got passed because it sounded good in the papers rather than having any real chance of standing up to review.

    As always, the First Amendment is supposed to keep the government from stepping on your toes too hard. Won't save you from getting fired for saying some dumb shit because that isn't the government, though. Or banned from a forum site. Or blocked on Twitter.
     
  3. Agayek

    Agayek Dark Lord

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    That's the thing though. The first amendment does save you from the physical equivalent of being banned from Twitter. That's the essence of "the public square", legally speaking. You can't be removed from a public space for saying something, regardless of how agreeable what you're saying is.

    By the same logic, if Twitter is "the modern public square", the first amendment would protect you from being removed from it for saying something, regardless of how agreeable it is.

    It wouldn't stop someone from blocking you individually, no, but it certainly would prevent the site from banning you or squelching your account. It's the essential difference between the right to speak and the right to be heard; you'll be legally protected to speak, regardless of content, even if no one is listening.

    Edit: And yes, this does apply to private institutions operating in what's deemed a public manner. Things like shopping malls can and have been successfully sued for violating first amendment rights (see: Pruneyard Shopping Center v. Robbins), and it's a very, very small leap of logic from that to holding Twitter to the exact same legal standard.
     
    Last edited: Jun 20, 2017
  4. ScottPress

    ScottPress The Horny Sovereign Prestige

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    Social media are privately owned though. If you equate Twitter to a public space (which it is in application, but not legally), then don't you also have to equate privately owned real estate to an actual public square? I would rather say that Twitter can kick you out, but by doing that they're not banning you from the Internet, just from the piece of it they own.

    Edit: Hell, look at DLP. It's not a social media site, but it does some of the same things. Yet idiots get banned - from the site, not the Internet. Because DLP is privately owned.
     
    Last edited: Jun 20, 2017
  5. Agayek

    Agayek Dark Lord

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    Check my edit. The first case I found was Pruneyard Shopping Center v Robbins, a case wherein a group of high school students were soliciting signatures for a petition protesting a UN resolution inside a privately-owned mall were asked to leave by the owner of the center, and the Court ruled that, in essence, through dint of advertising and business practices, the mall was a public space, and thereby their removal of the students violated the students' first amendment rights.

    The exact same argument could be applied to any large social media platform.

    You raise a good point about private forums et al as well, but I would rejoinder by pointing out that it's a similar level of difference between a private store and a shopping mall. The private forums, such as DLP, that don't go around advertising and conducting themselves as a place for literally everyone, that don't have a near-monopoly on public discourse, are private spaces, subject to the same rights and controls the owners have over a private store.

    Twitter and Facebook, to use the obvious examples, do not. Through dint of advertising and business practices, they are public spaces. Just as shopping malls are.
     
  6. Tenages

    Tenages Unspeakable DLP Supporter

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    That case doesn't quite support that statement. Nobody was found guilty of violating first amendment rights in that speech. The shopping mall was found guilty of violating free speech rights under the California state constitution not the 1st amendment. The trial and appellate court both agreed that the mall banning them didn't violate the first amendment. California just apparently has free speech protections that are even stronger than the first amendment. And then the SC ruled that yes, states can have stronger 1A protections than the US constitution without violating property rights.

    So it does support your point somewhat, but not nearly as strongly as you're suggesting. It would certainly suggest that in California, such banning from social media platforms could be an issue. And of course since many social media platforms are headquartered in California, they'd have outsize influence. If you have a link to a federal case where the same conclusion was reached in regard to federal 1A rights, I'd be interested in seeing it.

    That being said, since this Pruneyard decision was presumably already binding precedent in California, this recent SC decision doesn't seem to have much impact on California free speech law, and given that no cases have been brought suggesting banning from social media violates California free speech protections, I'd imagine there are other laws/precedents elucidating why it's fine to do so.


    EDIT:
    Again, just to be clear, the case did not rule that the removal violated 1A rights. It ruled it violated California state constitution free speech rights.

    Edit 2: Quoting from the Pruneyard Case cited by Agayek. Emphasis mine

    The trial court and 1st appellate court held that banning was permissible under both state and federal constitution. the California SC reversed on the grounds that banning was prohibited by the state constitution. It didn't reverse on 1A grounds.
     
    Last edited: Jun 21, 2017
  7. Darth_Revan

    Darth_Revan Secret Squirrel Prestige DLP Supporter

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    For Facebook and Twitter and the like, you sign away your rights when you sign the ToS. The comparisons to physical spaces don't really jive.
     
  8. Tenages

    Tenages Unspeakable DLP Supporter

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    But getting away from technicalities of previous court questions, I think the more interesting question than "Is the SC moving towards treating participation on social media as a fundamental free speech right" is "Should participation on social media be treated as a fundamental free speech right."

    The former is prognosticating about the direction of the evolution of federal jurisprudence, which is a fun parlor game at best. The other is debating the ethics and philosophy of what's general viewed in the West as an important right (with varying limitations by jurisdiction.)

    I tend to think that yes, platforms that are as ubiquitous as facebook, or twitter have become de facto public squares that free speech protections should be extended to. I find it harder to extend that argument to small private sites and discussion groups ala DLP or Spacebattles or what have you. But how do you draw a distinction?

    That also brings up the question of how to deal with free speech vs stopping harassment, bullying, violent hate speech, etc., which I think we can all agree is far more prevalent in the relatively anonymous confines of the internet than in offline life.
     
    Last edited: Jun 21, 2017
  9. Agayek

    Agayek Dark Lord

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    The importance of the recent decision is in the fact that it's about the digital space. It's among the first such cases out there. I imagine the lack of such cases vis-a-vis social media bans is more because no one's confident enough that the first amendment applies to push a case to court. This ruling may well change that.

    I'll have to do more research on other cases there. The only relevant supreme court case I can think of is Lloyd Corps v Tanner, where it was ruled that barring access is not a violation of the first amendment, since there are public alternatives right outside. There is no public alternative to Facebook though, so I could definitely see that supporting first amendment protections on social media. Not really sure.

    Edit:

    You mean the same ToS agreements that are routinely dismissed as not legally binding and that only last until someone actually brings them to court?

    ---------- Post automerged at 06:52 PM ---------- Previous post was at 06:28 PM ----------


    I'm more or less in agreement with you on this. If I had my way, there are two delineating factors. 1) marketshare, and 2) advertising.

    A place advertising itself as a private club for people that like, I dunno, Harry x Ginny erotica, is an entirely different beast from a place advertising itself as the new place to see and be seen, and to do all your socializing through.

    Similarly, a place with three members is irrelevant, but a place with 1.94 billion is much more of a public area.

    This is unfortunately hard to strictly define, as it's impossible to set hard, binding limits on this kind of thing while still being entirely accurate, but I think its the best definition were going to get. The main idea is that once a platform reaches the point where it's considered strange not to be on it, you've reached the point where that platform is public.

    As for harassment.et al, yeah, that's definitely a concern in such a situation. My idea of a fix would be to give users more control over their own feeds. Expand the ignore and block tools to let the user instantly prune out those the user doesn't want to see, and include the standard anti-sockpuppet measures such as ignoring-by-ip or making users get on friends lists with explicit approval by both parties to send private messages, etcetera.
     
    Last edited: Jun 21, 2017
  10. Sesc

    Sesc Slytherin at Heart Moderator

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    I have thought about this now and again, because, indeed, I agree with the premise.

    Let's consider this: First, in this day and age, communication, exchange of ideas and thoughts, discussions and the like -- in fact, life as such -- take place digitally. Now assume a hypothetical company that has a de-facto monopoly on discussion platforms: Simply because everyone is there, and not anywhere else, so for anyone to want to say something and people to actually hear it, that is the one and only place to go.

    What rules to restrict discussion can this company employ? Well, just like DLP: Any it wants. If we wanted to stop you saying "pink", we could. You have a right to say anything you want -- but you do not have a right to say it here. If you want to keep saying "pink", simply open your own forums.

    You immediately see how this approach fails for a company with a de-facto monopoly. There, arguing "you have a right to say anything you want but not here" amounts to depriving you of the means to partake into discussions altogether. The pre-digital analogon is to say, you're free to protest as loudly as you can, but only in the deep dark forest where no one can hear you. That is the kind of "free speech" Russia et al. are allowing, and it's certainly not healthy for a liberal and democratic society.

    Consequentially, you run into the problem that have to regulate private entities, and not only that, you have to regulate them in around 200 different ways, as they are supranatural. The easiest is negative regulations: If it's a defamation in analog life, it's a defamation in digital life, and you can demand it to be deleted and the account owner punished. More problematic is the positive regulation: How can you demand something be published?

    The only solution really is go into the direction of the OP, even if this doesn't address the 200 different regulations problem, and I'm dissatisfied with such a heavy regulation of a private entity, anyway.


    Personally, my favourite (if unrealistic) solution would be to skip the "private entity" issue altogether, and create a public (as in, publicly funded and run) platform. Just like public squares are owned by the public, so there should be a digital public square owned by the public. Everyone would have free access, there would be no advertising and data selling, and the laws applying are the laws applying offline.

    That train has left the station, of course, because even if such a platform was build now, no one would go there for the reason mentioned above. So what's left is to make the best of this conundrum; and it definitely is an issue that needs to be addressed -- sooner rather than later.
     
  11. Darth_Revan

    Darth_Revan Secret Squirrel Prestige DLP Supporter

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    Regulation of speech in online fora would basically mean sites would give up on the idea of being self-policing marketplaces of ideas. I suspect a majority of people don't want that.

    It's hard to imagine how to avoid that, though, if the sites are seen as the public square and not as a private members site.
     
  12. Nemrut

    Nemrut The Black Mage Prestige

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    Sesc Could the UN or NATO buy twitter or the like? Hypothetically, I mean, to make it a public space? Would that be a step into that direction?
     
  13. Sesc

    Sesc Slytherin at Heart Moderator

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    Nemrut: ... a platform run by a supranational organisation? I suppose that could work; in terms of offering access to everyone, it'd be ideal, even. But "work" and "ideal" is meant here in the same way as in "a world government could work and would be ideal". Maybe in 300 years, if we still exist at that point. Realistically, now, today? I mean, you know what UN sessions are like, and how long we took to agree to a lousy climate deal, for instance XD


    But yeah, the issue is actually broader than just social media. It's about moving civil rights into the digital era. If life happens online, then such questions as the right to have internet access turns up, for example. Or take net-neutrality. Imagine if all roads and highways were private, and whoever paid most got the fastest lane and the most exclusive treatment, and potentially, you could be stopped from driving there altogether? There is a reason infrastructure is public, not private. But this is not the case in the internet. Almost everything is private there and government has little say in most matters. It's as if Ayn Rand turned digital and reincarnated in the internet.

    But life, and when I say this you know it's serious XD, not only needs freedom, but also a minimum of security, so we can't -- realistically -- allow the internet to be this creative, chaotic anarchy it was founded as. Not if it is as vital to our life as it is becoming.

    People can't have nice things, and that's why we've been seeing the abuse of the freedom the internet offers over the last ten years. It's all well and fine if you can do anything you want, but what about the effects on other people? They have the same right to access it, and feel safe doing it, and their rights need to be protected just as yours.

    So I suspect we will see heavy governmental regulation of large platforms eventually (it's already starting here, we are debating a "lex facebook"), and some of the freedom will be lost, just like the innocence of the internet was lost when it was abused for harassment and crime. We only have to take care the regulation actually is intended to help the people, and not a spurious reason invented to censor unwanted opinion or control undesired opposition.
     
  14. LightLordPotter

    LightLordPotter Disappeared

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    The funny thing about being a criminal (aka: Sex Offender) is that the Amendments no longer apply to you anyways, you've given it up by going directly against someone else's basic human rights.
     
  15. ScottPress

    ScottPress The Horny Sovereign Prestige

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    You fuckin wot mate? That's retarded. Speaking of criminals, allow me to quote a (fictional) criminal:

     
  16. Darth_Revan

    Darth_Revan Secret Squirrel Prestige DLP Supporter

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    Yea, that's not a thing. The Constitution doesn't suddenly no longer apply because you're a felon. It applies to all people on US soil and all US citizens anywhere.

    You can't vote anymore, that's the only right you lose, really.
     
  17. Wildfeather

    Wildfeather Seventh Year Prestige

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    And the right to bear arms in many places. Also your right to live wherever you want.
     
  18. tikkier2000

    tikkier2000 First Year

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    It Does Indicate a Change in Attitue

    I can tell you from personal experience that, when it comes to the Internet, police and law enforcement agencies have a very hard time handling the Internet and interpretations of the Constitution. To give an example:

    When investigating any kind of higher level crime such as dealing narcotics, homicide, etc., many criminals use the Internet--and even high-trafficked sites such as Facebook, Twitter, etc.--to conduct business or discuss details. Almost every law enforcement agency in the United States with a crime rate over zero is acquiring technology to info dump smartphones, data mine social media, and generally use the Internet as an asset. However, not only does evidence obtained through the Internet displease the District Attorney's office almost every time, but I've seen numerous cases that would need warrants for further investigating, but judges aren't willing to authorize a warrant on the grounds of Internet evidence if that is the only evidence. Even if said posts are clear indication of dealing drugs, intent to commit homicide, or the like, unless it's explicit that homicide may be going down right now, say goodbye to your warrant.

    Info dumps on smartphones that were on a person during a stop are now considered viable evidence, but it's a new thing.

    So law enforcement almost always errs on the side of extreme caution when it comes to rights and the Internet. (Although, understandably, I would argue that it's more strenuous when concerning 4A rights.) Unless a federal law was enacted to put explicit boundaries on what constitutes the legally public/private barrier, many states would not be willing to pursue cases. Unless, of course, their own state had a more stringent interpretation of 1A rights in their own state constitution.

    I know my state wouldn't be willing to even touch a case like that unless it was for an obviously egregious reason. Which might be more the attitude of law enforcement in general and is a bigger problem, in my opinion.

    But I am glad that this problem is being brought up because of the said attitude toward the Internet by law enforcement communities. It's progress that people want to flesh out the intricacies of how the law applies to the Internet, especially concerning Constitutional rights.
     
  19. Aurion

    Aurion Headmaster

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    The issue wasn't that they were banned from Facebook. It's that the state government was telling them they could not participate on those platforms.

    Any of those platforms.

    That falls squarely within the remit of the First Amendment. It is not the North Carolina General Assembly's decision to make.

    If Twitter, on the other hand, decides they don't care to host what you've got to say, tough shit. It's privately owned. The Internet, generally, is a host of private fiefdoms rather than a true public square which drastically limits the impact of things like this.

    The same logic applies on a smaller scale for DLP. The government can't really say jack about whether you're allowed to post here. Raven, on the other hand, can. You can cry First Amendment until the end of time, and it will mean precisely fuckall because the First Amendment does not apply.

    Unless you're willing to play by one set of rules on the Web and another in real life, but at a guess I think most people would probably not care for that.

    There's also the issue that not everyone who posts on a site is American. But in the interest of not getting completely bogged down in the details I'll pass on that can of worms.
     
    Last edited: Jun 22, 2017
  20. Agayek

    Agayek Dark Lord

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    Well yeah, no ones questioning that that's how it is now. The question is more a) should it stay that way? And b) what does it mean for that if, say, Facebook is legally considered the public square?

    There's no question of whether or not social media platforms currently have total control over all aspects of said platform. It's just that, with the slowly changing attitudes of the legal system, that may well not be the case forever. It's simply a matter of where the line is, or should be, drawn in the digital space between the property rights of the platform owners and the speech rights of the customers. I could realistically seeing it going either way, even if I'd prefer it to err toward speech rights.

    And there's been some interesting discussion in this thread about that so far