Public Forum and Free Speech

Are the electronic platforms of Twitter, Facebook, Google and Apple, public forums? Free speech is protected in the public forum, not in private locations. The public square, parks, and sidewalks are places of public fora. Yet, in our society public speaking is largely conducted via audio, video, and electronic means through television, radio and ever-expanding digital formats. Is the Internet a public arena or a completely private sphere created and operated by private individuals? Email is private, but are broadcast messages, blogs, opinion journals, tweets, and comments posted for the entire digital world on various platforms public speech?

Disputes over the abuse of private information and censored speech by the large internet platform providers mentioned earlier resulted in congressional hearings questioning the necessity of government oversight or regulation. A few large corporations control the various network platforms. The officers or owners of these corporations program their political and social bias into these networks in order to promote their own values, ideas, and political agenda, which is lawful, but they go further by censoring dissent. Much of it is done in secret with algorithms that block distribution while appearing to be broadcast. More flagrant censorship happens when an “offenders” account is blocked or terminated.

The Supreme Court is reviewing the case Manhattan Community Access Corporation v. Halleck, that could have a bearing on these issues and what constitutes a public forum. The 2nd Circuit Court of Appeals overturned the District Courts decision that the community cable network was a private concern, rather than a “state actor”. This ruling conflicted with decisions in the 6th Circuit and DC circuit, thus guidance from the Supreme Court is required.

Free speech is protected from censoring in a public forum. The Cato institute filed a friend of the court brief explaining that first amendment protections apply only to the state. “…when it comes to the First Amendment. Allowing the state unfettered power to interfere with the flow of speech in the marketplace of ideas would allow the state to alter discourse and consequently interfere with the search for truth. The First Amendment therefore prevents the state from restricting who may speak and what they can say. This risk of abuse of power is absent, though, when a private person is speaking or—as relevant here—

deciding who may use its property to speak. Allowing lawsuits that challenge the editorial decisions of private persons who promote speech via their private property would unduly and unnecessarily stifle the free flow of speech in the marketplace of ideas.”

Historically, this is all true and pertinent, however, in our digital age of monopolized electronic public forums, the abuse of power is perpetuated not by the State, but by a very few Internet barons, who are actively restricting who may speak, what may be said, and who may use their property (if in-fact they own the infrastructure) to speak. Moreover, these self-appointed censors are not interested in promoting speech, but rather preserving their bias. Censorship is not editorial activity when it is applied to further a political purpose and agenda as we see today.

Unfortunately, the issues we face today can not be resolved by merely concluding that the monopoly of electronic platforms are public forums. To do so requires entanglement with the state, which the founders and constitution deem the entity from whom protection is necessary. Public speech is being censored by a few private individuals who control vast electronic forums. Political and religious speech is being censored, rather than, threats, vulgarity, indecency, or other acknowledged inappropriate speech. When the only source for securing one’s right comes from the very entity most likely to deny it, we are left in a paradox without recourse. It will be interesting to see how the Court clarifies these issues in our digital age and whether the right questions will be addressed. If my hope and faith were not in God alone, I might be worried that the Supreme Court is like a seventeenth century physician whose patient has a severely infected wound. After a brief physical examination the doctor recommends blood-letting and application of a dung poultice.