
There’s a constitutional right to use social media, US Supreme Court says - dredmorbius
https://arstechnica.com/tech-policy/2017/06/sex-offenders-cannot-be-excluded-from-social-media-supreme-court-says/
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kevin_b_er
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?

~~~
flukus
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.

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dredmorbius
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.

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sp332
Facebook is still free to ban him. (It's against their ToS.) But the
government can't order it.

~~~
dredmorbius
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](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](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](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](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...](https://www.nytimes.com/2014/05/11/business/defending-the-open-
internet.html)

~~~
dragonwriter
> 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.

~~~
dredmorbius
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.

~~~
dragonwriter
> 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.

~~~
dredmorbius
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.

~~~
dragonwriter
> 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.

~~~
dredmorbius
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.

