Merging the 'Social' and the 'Public': How Social Media Platforms Could Be a New Public Forum
Mitchell Hamline Law Review, Vol. 46, Forthcoming (2020)
64 Pages Posted: 8 Oct 2019
Date Written: April 11, 2019
When Facebook and other social media sites announced in August 2018 they would ban extremist speakers such as conspiracy theorist Alex Jones for violating their rules against hate speech, reactions were strong. Either they would criticize that such measures were only a drop in the bucket with regards to toxic and harmful speech online, or they would despise Facebook & Co. for penalizing only right-wing speakers, hence censoring political opinions and joining some type of anti-conservative media conglomerate. This anecdote foremost begged the question: Should someone like Alex Jones be excluded from Facebook? And the question “should” includes the one of “may Facebook exclude users for publishing political opinions?”.
As social media platforms take up more and more space in our daily lives, enabling not only individual and mass communication, but also offering payment and other services, there is still a need for a common understanding with regards to the social and communicative space they create in cyberspace. By common I mean on a global scale since this is the way most social media platforms operate or aim for (see Facebook’s mission statement: “bring the world closer together”). While in social science a new digital sphere was proclaimed and social media platforms can be categorized as “personal publics”, there is no such denomination in legal scholarship that is globally agreed upon. Public space can be defined as a free room between the state and society, as a space for freedom. Generally, it is where individuals are protected by their fundamental rights while operating in the public sphere. However, terms like forum, space, and sphere may not be used as synonyms in this discussion. Under the First Amendment, the public forum doctrine mainly serves the purposes of democracy and truth and could be perpetuated in communication services that promote direct dialogue between the state and citizens. But where and by whom is the public forum guaranteed in cyberspace? The notion of the public space in cyberspace is central and it constantly evolves as platforms become broader in their services, hence it needs to be examined more closely. When looking at social media platforms we need to take into account how they moderate speech and subsequently how they influence social processes. If representative democracies are built on the grounds of deliberation, it is essential to safeguard the room for public discourse to actually happen. Are constitutional concepts for the analog space transferable into the digital? Should private actors such as social media platforms be bound by freedom of speech without being considered state actors? And, accordingly, create a new type of public forum?
The goal of this article is to provide answers to the questions mentioned. First, it will give an overview of the doctrinal concept of public forum doctrine in U.S. constitutional scholarship and its choke points related to cyberspace. In a second step, it will introduce the notion of “Public” in German constitutional jurisprudence as a point of reference and the outcome of the comparative analysis. It will answer whether the public forum doctrine and the definition of the Public in Germany serve the same function in both systems and if so, how it needs to be taken into account by non-state actors. The focus will be on the consequences of this comparison for the digital sphere, i.e. for the intermediaries that globally connect users and provide platforms to share content. The fundamental question is to which extent can platforms factually be the hosts of public discourse and at the same time enforce their own rules on the basis of their contractual relationship with users, i.e. moderate content. Gaining more clarity about these questions would serve the purpose of possibly revising our current expectations towards platforms, which are rather based on their role in modern society rather than on legal obligations. It would also show that judicial review can serve as a flexible tool if the doctrine is open to changes in society. Finally, I would like to propose an extension of the public forum doctrine, that would be based on the findings of the first parts and could serve as potential guidance to the judiciary, i.e. to the courts that are in practice applying the public forum doctrine.
Keywords: first amendment, public forum doctrine, social media, public sphere
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