Defining the Virtual Forum for Ourselves and Our Posterity
How applying the Designated Public Forum Doctrine to the Internet could save it from itself.
I’m old enough that I remember when the Internet was a curiosity rather than a necessity: using a 300 baud modem connected to my dad’s CP/M computer to dial into Compuserve and discovering that there was this thing called “email” where you could send messages to people on other network systems if you had a valid address to send it with. Back then we still got most of our information about the world from newspapers and TV.
Since that time, inter-networked platforms have grown and supplanted nearly every other communication channel in our society. This has brought with it a profound and rapid change in how we, Americans in particular, talk to one another.
In science fiction they talk about “singularity events” in history, which mark change so significant that human societies, institutions, conventions, norms, and language on either side of the change lack mutual intelligibility. If you were to tell someone from 1950 that you were going to “email them from my cell to set up an outlook for a Skype telecon about that PDF,” they would have absolutely no idea what you were talking about. We’re on opposite sides of the singularity boundary, and beyond? There be dragons.
Unfortunately, social and legal institutions and conventions can lag far behind the pace of change in technologies. And that’s were we can find ourselves in deep trouble.
Within the past 10 years, one such seismic shift has come in the form of social media: platforms where people can come together and share information of many kinds and build direct and persistent communication channels with one another. One of the results of that shift has been a near-total disintermediation of mass information flow in our society, as well as a near-total privatization of the American speech commons.
Pre-Internet, information distribution in America was primarily effected through centralized media outlets: newspapers and magazines, then later both radio and television broadcasting. These media channels were typically defined by centralized control and editorial voice. But they were distributing information in a physical commons: via print or public broadcast spectrum.
The Internet began as a government project, instigated by DARPA in an effort to create a robust communication infrastructure which could survive a nuclear attack, but has since quickly grown beyond its public nucleus into a vast and ramified interlocking system of privately-owned and -controlled systems, both physical and virtual. It has also become a significant driving engine in modern America’s economic prosperity.
Which is all well and good. Until we get to how long-established laws in the United States protecting our rights of both free speech and the press — the wording and precedents of which are mostly way back there on the trailing side of the singularity frontier — hit modern communications and we quickly wind up mired in lots of mutual intelligibility.
This has recently come into sharp relief with a controversy over social media platforms censoring and even banning users for posting content which is not actually illegal, but is considered offensive or undesirable by the platform owners or other users. A lot of that speech is political.
In the world of pre-Internet physical communication, these issues were mostly settled and unambiguous. The press was free to print what they wanted to. Later, they were free to broadcast it too, with a few more restrictions related to public interest and public bandwidth scarcity. Individuals were free to speak and assemble as they wanted to, again given a few reasonable limitations. For instance, physical places which are public property are, for the most part, covered by First Amendment rights to free speech to varying degree. Private property is legally outside that domain. You can’t demand to go on somebody’s lawn and set up a protest, but you mostly CAN do it on the public street by their house, so long as you don’t break any other laws.
Over the years, as our society grew and became more complex, legal precedents and interpretations came into being to clarify how these situations get resolved in ways that protect everybody’s rights the the best extent possible. One of those doctrines, as applied to the exercise of First Amendment free speech rights in the public realm in what’s called the Public Forum.
Under the doctrine of the Public (or Open) Forum, open, publicly-accessible spaces are considered fully open to the expression of First Amendment speech and assembly rights. The quintessential example of a Public Forum is a city park: public land intended for public use and accessible to public occupation. In a Public Forum, under most circumstances, neither the government nor private parties may act to infringe your right to free speech or assembly. The few exceptions to this are directly connected to the protection of other rights and the general welfare. For example, peaceable assembly means peaceable. You can’t claim a right to start a riot, and the government can legitimately prevent you from trying. You also can’t deny others from using the Public Forum by your own use of it either. Hence it being against the law in most places to block a highway with a protest.
There are extension of this doctrine to other physical spaces, as well. Between an Open or Public Forum and Private Property is a spectrum of boundary cases. Most of these are special-use public properties, but some of them are private properties that are in public use. One step down from the fully Public Forum is what is known as a Designated Public Forum. Sometimes also called Limited Public Forums, these are designated public areas for use as forums with some specified limitations. The courts have ruled that these are allowed to exist and that the government can police speech within them more rigorously than in a true Public Forum. An example of a Designated Public Forum is a public city council meeting. You can get up and speak, but you need to behave or they will kick you out.
Then you have Nonpublic Forums. These are still mostly public property, but with special nonpublic uses. For example: jails, military bases, public schools, etc. The courts have generally found that there is no full right to free speech in these places. They may be public property, but their special use makes them quasi-private in some way. However, even in these cases, the government may not allow selective speech access as a matter of fairness under the First Amendment. If the government allows a Democratic political candidate to come give a speech at a public school, it can’t then deny that same access selectively to a Republican (or any other party) candidate.
In fact, no matter what kind of forum it is — Public, Designated, Nonpublic — the government is legally obligated to remain viewpoint neutral in all cases. Playing favorites or putting its thumb on the scales to favor or inhibit one viewpoint versus another is strictly forbidden even if other restrictions may be allowed.
On private property, of course, none of this comes into play. Private is private, with the implied meaning that private property is never a Forum as far as speech rights are concerned. In the physical world, this distinction is easy to make. A private theater may be for “public” performances, but it’s still private property contained within the public realm beginning at its front door. Once you buy a ticket and go inside, you’re there under their rules and sufferance.
Which is all good and well until we get to the 21st century, where suddenly the vast majority of people are interacting with one another in a virtual world we call the Internet, and its various subdomains such as Usenet, Email, Twitter, Facebook, Instagram, ad infinitum.
What happens when the place we now use to interact with each other in a social context isn’t completely physical anymore? When it really only exists as a metaphoric abstraction overlaid on a bunch of bits in a database? And what happens when the infrastructure and software algorithms over which that metaphoric abstraction are overlaid and used are all privately owned, right down to the logic and structure of the algorithms themselves? And when the owners of that communication infrastructure coordinate to use the fact of that private control to limit access by people who wish to interact with the public communication channels? When they start using that private control to reject viewpoint neutrality and put their thumbs on the scales of the public conversation? When they try to use information control to influence voting patterns? When they start acting like petty despots in ways utterly forbidden to public entities under the Constitution, silencing dissent and throwing people in Information Gulags via shadowbanning, closing of payment accounts, coordinated deplatforming, or even full-blown DNS-blocking?
Well, then we have a very serious problem.
The First Amendment exists, and is listed first among the Bill of Rights, not just as a guarantee of essential liberty as a matter of individual right and dignity, but as a primary roadblock to tyranny. So long as you are free to speak, free to believe, free to assemble, and free to publish, you are free to THINK. Where you can think, you can then independently ACT.
In the world of thought and ideas, open communication is an essential requirement for truth and justice. It’s the American Way.
Attempts to control communication are fundamentally attempts to control people’s minds. Even in 1789 this was self-evident. During the Revolutionary War, pamphleteering (the state-of-the-art blogging / tweet-threading of its day) was essential to dissemination of information in the effort to gain independence from the world’s greatest superpower at the time. The Founders knew this stuff was important from first-hand experience.
However, we now find ourselves in the position where the speech commons in our society has moved almost entirely out of the physical, public realm and into the virtual, private arena. Yet the the First Amendment has not followed along with it. Worse, the shift in valence from public to private control of the speech commons has effectively inverted the First Amendment, giving all of its protections and liberties to an elite class of oligarchic owners while denying it to everyone else.
Tragically, perhaps ironically, this entire situation was born out of a kind of libertarian utopianism in which everybody was supposed to become more free through full privatization of the information commons and escape from big government controls. Yet while its owners and avatars may not technically be governments, they sure have started acting a lot like the worst of them. So much for “Don’t Be Evil.”
Societies and institutions evolve through time, and they adapt to change as they can, sometimes successfully and sometimes not. American society adapted our protections for essential liberties from the age of pamphlets and newspapers to the age of radio and television. Certain legal doctrines and conventions changed emphasis and interpretation as part of this. New ones arose as necessary.
That hasn’t happened yet as we’ve made the transition to the age of the Internet, and it is long past due.
I am not a lawyer, Constitutional or otherwise, but I am keen observer of history and politics. This is a situation which must be resolved intentionally in favor of essential liberty and justice or it will default to tyranny as the emergence of new oligarchic powers is so prone to do. Internet communication is a wonderful tool, and it empowers us in dramatic ways. We must, as a society, define and protect our new, virtual speech commons in such a way that it protects all our rights and is secured for future generations of Americans.
Fortunately, as I briefly touched on above, there is a framework within existing First Amendment doctrine that may help us do exactly that: the Public Forum.
What is Internet social media if not explicitly a forum for public expression? While social media companies and their databases may be privately owned, so are television stations. But their function in our national conversation demands that they be treated as more than just private playpens. The Internet, in proportion to its power and influence, much more so.
Designating the Internet as a Public Forum would go a long way toward resolving the problems and conflicts. It would not require nationalizing internet companies or even implementing anti-trust action against them (though that might still be applicable otherwise, depending). It would not require substantial regulation to enforce.
But it would require viewpoint neutrality as a matter of fundamental legal duty in all cases as a condition of access and use. Violations of that requirement would be actionable under current law, thus serving to maintain continuity with existing jurisprudence by extension and providing a significant incentive to good behavior via private liability in tort. If somebody violates my civil rights, I can sue them.
Is it an optimal solution? Maybe not. But the alternatives seem much worse. Do we continue to let private monopolies control the public conversation and silence people who disagree with them through raw exercise of power? Do we use the sledgehammer of Federal Antitrust action to break Facebook into a thousand Babybooks? Do we nationalize Twitter? None of those options is consistent with the essential spirit of America or its Constitution, even if they might be legal or practical. They are not who we are.
But the Public Forum, even if Designated, very much is. So is using liability for tortious conduct to regulate corporate misbehavior. Shareholders don’t like lawsuits. And the Internet (and many of its most successful companies, such as Google) wouldn’t exist without US government action and funding, so there is jurisdiction as well.
There have already been a few tentative moves toward making it official via judicial interpretation. But these have been slow, confused, and limited. We need clarity and general applicability. All it would take is a clear statement of clarification and intent, in other words Leadership, from the President or (especially) Congress.
