A framework for First Amendment questions in digital spaces

Co-authored with Michelle Carney

With the omnipresence of the Internet, we are faced with a new challenge of where and how the First Amendment applies to the virtual world. We suggest a framework for thinking about this challenge by extrapolating from the physical towards digital spaces. The examples given here are intended to represent the ambiguity involved in this process.

Examples of physical and digital spaces

In this framework, we begin by indicating examples of First Amendment applied to physical spaces. The First Amendment is applied in public spaces, like towns and municipalities, but does not necessarily cover all private spaces. For example, in Lloyd v Tanner (1972), the Court found that an alternate public space accessible for free speech and the respondents were therefore not entitled to exercise their free speech on private property. But Lloyd does not define property rights, only freedom of speech. However, in another case Pruneyard Shopping Center v Robins (1980), the Court found it acceptable to solicit signatures for a petition in a mall. However, in Marsh v Alabama (1946), the Court made the distinction that a company town or privately owned property could allow for protected freedom of speech if there is not another suitable alternative to reach the public audiences. This is similar to Food Employees v Logan Valley (Links to an external site.)Links to an external site.(1968) — when the public speech is related to a place of business on private property and there is not a public way to reach the intended audience, the speech is protected.

But what about in digital spaces?
We see companies like Facebook, Google, Twitter, as private properties, each with their own distinct sets of rules and guidelines for behavior, but not an exact alternative to a public sidewalk where others can express their freedom of speech. As outlined by Ammori in The ‘New’ New York Times, these companies’ ‘codes of conduct’ are shaping free expression globally. Already we see a large number of people engaging in social “activism” online (Civic Engagement in the Digital Age, 2013). This report also suggests that the Internet is seen as a more balanced space in terms of representation of income categories, while offline (physical spaces) skew towards higher income levels. We would like to argue that the notion of “company town” also applies to Facebook, Twitter, Google, and other platforms which do not have a public alternative.

…the notion of “company town” also applies to Facebook, Twitter, Google, and other platforms which do not have a public alternative.

The framework suggested above provides a way to think about the range of public and private fora in the digital space. However, the challenge lies in clarifying how freedom of expression and restriction of harmful speech are balanced in these situations, and how these relate to our current understanding of the First Amendment and Property Rights of private owners. Below we have attempted to highlight some of these issues.

1. Hate speech: In the physical space (of US context), we generally agree that hate speech is protected under the First Amendment with some narrow exceptions. However, in the digital spaces, we see a variety of definitions, produced by the firms themselves. They are thus writing their own speech rules for millions, sometimes with user involvement. For example, Facebook’s statement suggests prohibition on ‘directly harmful’ content, while ‘distasteful humor’ is not considered hate speech. It goes even further to prohibit anonymity, which played out poorly for the founders of RapeBook. It is FaceBook’s discretion to decide what can be harmful, and that is ambiguous.
2. Group libel: Another notable decision of FaceBook was to prohibit libel against groups but not institutions. However, such attempts are still inadequate when the public fora traverse national boundaries, as was the case when Google was asked to ban videos defaming Turkey’s historic leader. A similar situation arose regarding the controversial Innocence of Muslims video, which YouTube eventually did not ban making a conclusion that nothing was explicitly said about Muslims. These examples beg the question of whether expressive conduct can provoke violence, and whether an honored figure is an institution or a representative of a group?
3. Scale and scope: The trouble with tech giants is their control over large online platforms used by public. Catering to the wishes of millions of users across vastly differing national laws and cultures, is a formidable challenge. Within this quagmire however, certain patterns are visible, with American firms tilting more towards a wider version of freedom of speech, while European countries attempting to put limits e.g. “the right to be forgotten”.
4. Public forum on private property: If we assume the digital real estate (hosted content) to be the equivalent of physical real estate, does that mean that Google, Twitter, Facebook and the like are entitled to use this space as they wish? Drawing from Lloyd v Tanner, we may decide whether these platforms are akin to a private shopping mall where people come for specific business, or are these digital equivalents of a “company town ” where public debate and expression is the norm (and perhaps the objective). It is not difficult to see that the latter is the case. The next question is whether there are suitable alternatives available for someone who wishes to express what might be offensive to others? We believe that because of the scale achieved by Google, Facebook,Twitter and other such platforms, there are few or no similar alternatives i.e. alternative options would be hardly able to provide the exposure similar to these. Given these two factors, at least in the US context, regulation of digital real estate could be mapped to the manner in which speech on physical estate is regulated.
5. Digital silos: While there is evidence that tech savvy and younger adults are more politically active on social networking sites, class differences related to education level are visible. Google shows results based on relevance, but also hides those it considers irrelevant. Facebook feeds are curated to the taste of individuals, in effect reinforcing our offline segregations. Thus the internet while bringing like people together, may be stifling diversity of opinion. As noted by Eli Pariser, “Grappling with what it means to look at the world through these lenses is really important to us as a society”.
6. Physical-digital gap: There is a “gap” between how we regulate the physical spaces and how the digital space should/can be regulated. This gap is being filled by tech companies using their own crafted “terms of service”. This gap is also a source of cognitive dissonance in the minds of those live both online and offline. Case in point is the recent protest by UC Berkeley students leading to cancellation of a talk by Milo Yiannopoulos. While the protest stemmed from the controversial nature of the speaker’s previous talks, the protesters also had a validation arising from his being banned on Twitter.

We believe the current landscape of public digital space to be vacuous in terms of robust regulations, and to be ripe with challenges. However, as we struggle to moderate the content of these platforms, re-creating ‘filter bubbles’ should not be the objective.