The Age of Cyber Federalism

Rebecca Buckwalter-Poza woke up one morning in 2017 to find she had been blocked by @realDonaldTrump on Twitter. Dani Bostick woke up to the same news later that year, as did Annie Rice, an author, William LeGate, a tech entrepreneur, and Caroline Orr, a researcher. Soon, a contingent of Twitter dissenters emerged who all had been banned from the president’s official Twitter page.[1] While a salvo of news stories broke following a related lawsuit filed against Donald Trump, a much more interesting question about legal philosophy arose: what first amendment rights are users of private social media platforms guaranteed on public accounts?

While often reduced to the idea that Americans have absolute reign over speech, the First Amendment operates through a much more convoluted framework.[2][3] The First Amendment, like many other constitutional rights, is stated in negative language. In other words, Americans are not guaranteed the freedom of speech, per se; rather, laws that restrict our freedom of speech are to be deemed unconstitutional in a federal court. These freedoms are unilaterally promised for instances of government entities acting on citizens in public space, but other iterations of free speech suppression are less simple.

An understanding of this premise requires an examination of the possible permutations of speech suppression. Government restriction in a public space is, in most cases, unconstitutional. Government restriction in private space is also not permissible. The restriction of speech by a private entity (e.g. a company and its representatives) within a private space is allowed as long as anti-discrimination laws are adhered to. Lastly, and most germane to the Twitter controversy, is the restriction of speech by a private entity (a company or user) in a public space. This final permutation has become more prevalent with the rise of social media, but the debate over what is protected persists among jurists.[4]

Some, such as the Knight First Amendment Institute at Columbia University, argue that a governmental official blocking an individual on Twitter is a form of speech repression.[5] To them, this unconstitutionally exercises “viewpoint discrimination,” or the exclusion of a user’s speech from public discourse simply because their ideas differ with the facilitator’s. At the Knight First Amendment Institute, scholars argue that much like the arrest of a government dissident in a public square, this form of speech suppression is unconstitutional.

When the Constitution was written, the idea of private and public property could and was more literally meant to describe land. Our founders did not consider that one day, communication and interpersonal action would exist largely within cyberspace. The root of cyberspace’s complexity is derivative to the question of ownership. While cyberspace is maintained and facilitated by private entities, it is open to the public without restriction. Moreover, the survival of this sphere is contingent upon public participation. In other words, a company lays out the canvas, but the users create the art. We must then ask: can a space maintained by private rule but run by individual usership be dubbed either “public” or “private”?

Some experts are steadfast in their answers to this question. Harvard Law professor Noah Feldman posits that Twitter “isn’t public at all. Rather, Trump’s account is a stream of communication that’s wholly owned by Twitter, a private company with First Amendment rights of its own.”[6] Pursuant to this argument, once a user enters a website, a simultaneous forfeiture of the First Amendment occurs. A private social media company is allowed to draft their own Constitution, or in the case of Facebook and Twitter, a “community standard.” The existence of these individualized manifestos, however, do not necessarily negate federal regulation. Just as American states operate within a federal democracy, so ought these social media websites. This “marble cake” style of governance presents a new form of collaboration: cyber federalism.

Governmental-private cooperation in the regulation of social media is not an innovation; the Supreme Court has ruled several cases in favor of governmental oversight of cyberspace activity. Justice Kennedy, for example, said in a recent opinion that the most important place to protect the first amendment in a 21st century context is “cyberspace—the ‘vast democratic forums of the internet’ in general, and social media in particular.”[7]

It is also worth mentioning the instances in which Twitter and its peer social media platforms have almost absolute legal justification to suppress the speech of their users. Suppression of speech on social media platforms is allowed in the same instances when suppression of evidence is allowed in physical spaces by the government.[8] A prominent example of this is incitement of violence that poses an imminent danger. This is an instance that has been at the heart of several landmark Supreme Court cases, most notably in the 1969 Supreme Court decision Brandenburg v. Ohio.[9] Platforms from Twitter to Facebook to Spotify have blocked, removed, or censored content using the Brandenburgviolence test as justification.

We are still very much at the beginning of the road when it comes to cyberspace jurisprudence. The uncertainty surrounding what is and is not allowed is a consequence of time; the rate of technological and cyber innovation and advancement far outstrips the rate of American judicial proceedings. Until these questions are further litigated, this lag will in many ways allow social media platforms to defer to their own judgement. This is, in some regards, a scary notion. For the first time in national history, America contains private entities with free range to suppress speech on public platforms. While free speech laws are murky in the realm of cyberspace, the conduct of the Trump Administration is not. The president’s job is and ought to be focused on making every effort to promote civil discourse—this is the cultural policy and mantra that has backboned our civil society since its inception.

District Court Judge Naomi Reice agreed with this sentiment in May, ruling in favor of Buckwalter-Poza and her fellow plaintiffs. In her decision, she concurred that Twitter is a “designated public forum” and that those who engage with the President on Twitter are “protected by the First Amendment.”[10] Perhaps what we need more than anything else is a reevaluation of our legal compartmentalizations. Can cyberspace be placed neatly into “public” or “private” space? Probably not. But does its ubiquity require us to find a category to place it into? Certainly. Until we reach that answer, it is vital that we keep our cardinal cultural and legal values at the forefront of our collective consciousness. Actively remaining cognizant of the values our nation holds dear will serve as social check to any presidential breaches of our guaranteed rights, on and off of Twitter.

Sources:

[1] Toobin, Jeffrey. “Trump's Twitter Blockees Go To Court.” The New Yorker, The New Yorker, 17 Mar. 2018, www.newyorker.com/magazine/2018/03/26/trumps-twitter-blockees-go-to-court.

[2] Marvin, Ammori. “First Amendment Architecture.” SSRN, 23 Mar. 2011, papers.ssrn.com/sol3/papers.cfm?abstract_id=1791125.

[3] Fowler, Adam, "The Positive- and Negative-Right Conceptions of Freedom of Speech and the Specter of Reimposing the Broadcast Fairness Doctrine ... or Something Like It" (2010). Graduate Theses and Dissertations. http://scholarcommons.usf.edu/etd/3497

[4] Michael H. LeRoy, #AcademicFreedom: Twitter and First Amendment Rights for Professors, 90 Notre Dame Law Review Online158 (2015). https://scholarship.law.nd.edu/ndlr_online/vol90/iss3/4/

[5] “Fighting for the First Amendment.” Knight First Amendment Institute, knightcolumbia.org/news/fighting-first-amendment.

[6] Caplan, Lincoln. “Should Facebook and Twitter Be Regulated Under the First Amendment?” Wired, Conde Nast, 8 Nov. 2017, www.wired.com/story/should-facebook-and-twitter-be-regulated-under-the-first-amendment/.

[7] Kanovitz, Jacqueline R. Constitutional Law for Criminal Justice. S.l.: Routledge, 2018.

[8] “Free Expression on Social Media.” Freedom Forum Institute, www.freedomforuminstitute.org/first-amendment-center/primers/free-expression-on-social-media/.

[9] "Brandenburg v. Ohio." Oyez, 13 Oct. 2018, www.oyez.org/cases/1968/492.

[10] Feldman, Noah. “Are You Sure You Want a Right to Trump's Twitter Account?” The New York Times, 5 June 2018, www.nytimes.com/2018/06/05/opinion/first-amendment-trump-twitter.html.