Twitter is not a monopoly therefore every web site would be considered a public web space.
And so if I run a knitting forum I am not allowed to restrict people who want to turn it into a pornography one. And how would it work for spam. This could end up in a situation where a large spammer could force websites to not remove spam.
It sounds unworkable and over the top just to protect some people who aren't even having their rights impeded.
Twitter is not equivalent to some obscure knitting forum. It is huge. So huge that it gets quoted in nearly every mainstream media article. Twitter matters to political discourse, knitting doesn't.
The owners of printing presses have even more power, but the government does not mandate open access to those machines for dispensing speech. Unfettered access to twitter is not akin to free speech.
Twitter is essentially a big public square the results of which end up getting printed by mainstream press. Publishers are also under more legal restrictions than Twitter is.
Newspapers are publishers, and are subject to rules and regulations for being publishers.
Twitter would not be mandate to open up access to everyone. Instead, the proposed legal changes would merely treat them as publishers, if they act like publishers, and therefore twitter would not have liability protections anymore.
So as soon as they make any kind of restriction on the use of their platform they become publishers? That's quite a stretch. That would have the same effect: it would require them to provide unfettered access for anyone, for any purpose.
Twitter matters to political discourse, knitting doesn't.
Doesn't matter. Twitter is a privately owned platform not a public one.
SCOTUS has already said that simply being open to the public does not make a business a public platform, see Pruneyard v Robins, applying this reasoning to privately-owned malls.
And yes, that makes all the difference, since SCOTUS has repeatedly held that publicly owned spaces like public parks and main streets are subject to first amendment requirements.
Except it's not nearly as simple as you make out here.
In Packingham v. North Carolina (2017) SCOTUS described social media websites as similar to a public square and ruled that the state couldn't block access to them in an overly broad manner.
Being open to the public does change how a business is regulated (see the ADA and Civil Rights Act among others) even if it doesn't make it a "public platform" specifically. However, a reasonable case can be made that Twitter has _intentionally_ positioned themselves as a public platform and so the case you cite could be argued not to apply.
Alternatively, Twitter could be argued to be editorializing. If that were the case, presumably they wouldn't really be a public platform but rather a publisher. But if that's the case, shouldn't they be held liable for all the nonsense that people post there?
The situation isn't clear at all even though many people on both sides of the debate frequently claim that it is.
That's not at all what Packingham says. That ruling was about a sex offender's right to access a website on which he could engage in first amendment activities without government restriction. It was not about whether a social media website was a public platform or whether the websites had to allow the appellant access. Moreover, many of the activities identified in the ruling also apply to private malls...which the courts have already ruled several times are not public forums for first amendment purposes (Lloyd and Pruneyard).
Being open to the public does change how a business is regulated (see the ADA and Civil Rights Act among others) even if it doesn't make it a "public platform" specifically
This is true. A statute of Congress can place restrictions on businesses. Last I checked, the President is not a member of Congress, and cannot unilaterally override congressional laws.
Moreover, SCOTUS cases have ruled that privately owned facilities are not subject to the "limited purpose" test. It doesn't matter that they've held themselves open to the public, it matters that they're privately owned. (See Lloyd and Pruneyard, explicitly addressing this point.)
You keep citing cases regarding private malls. I previously pointed out that a reasonable argument can be made as to why that precedent should not apply. I don't claim to know what the outcome of such an argument would be in court, only that it is a reasonable one to make under the circumstances (and thus the situation is fairly complicated).
> Last I checked, the President is not a member of Congress, and cannot unilaterally override congressional laws.
I never claimed this? I said only that the current situation was not as simple as you made out. (I would also note that the president appears to be targeting Section 230 protections which is quite a different beast.)
> That's not at all what Packingham says.
Except... it is. In their ruling the court _directly_ compares social media to other venues for public gathering. I'm not claiming that they explicitly rule it to be one way or the other (they don't), but they do repeatedly make direct comparisons that would appear to lean that way.
Except... it is. In their ruling the court _directly_ compares social media to other venues for public gathering. I'm not claiming that they explicitly rule it to be one way or the other (they don't), but they do repeatedly make direct comparisons that would appear to lean that way.
Except the text of the case itself literally does not do that. You need to read the actual text and not just the summary. Importantly, every time in the case they reference a "social media" website and a form of expression that could occur in a public forum, it is with respect to how the appellant would use that website--to freely express himself under his own first Amendment rights, and they contrast that with the government's attempt to restrict that expression. And as I pointed out, these activities were expressly addressed in the mall cases I cited, in which the courts said it didn't matter that such activities could occur in a mall, what mattered was that the malls were privately owned facilities. (And that is why I keep bringing the cases up--because malls are the closest analog to Twitter. They let people come in and at the time of these cases had millions of customers/visitors annually--on a relative basis, they were more a part of American life back then than Twitter is now.)
I would also note that the president appears to be targeting Section 230 protections which is quite a different beast.
The Section 230 protected are provided by congressional law, so it's not a different beast. The President does not have the power to target section 230 protections. The executive agencies could arguably make rules to change those protections, if they adhere to the administrative rulemaking process and their rules do not contradict the express text or purpose of the law.
I previously pointed out that a reasonable argument can be made as to why that precedent should not apply.
No, you didn't. The ADA (1990) and Civil Rights Act (1964), are older unrelated laws governing different issues. The CDA was passed in 1996, and so jurisprudence and the law itself already incorporated existing understandings of both of those laws...as well as the SCOTUS cases addressing the exact points you raised in your comment (i.e., the mall cases you keep dismissing). The CDA was written in a world where private facilities were not public forums as a result of multiple SCOTUS decisions saying they weren't. And the law reflects that.
A number of serious misunderstandings seem to have developed in our back and forth here and I'm not sure it's worth writing a wall of text to clarify them. Perhaps I didn't previously word things as clearly as would have been ideal.
> > I previously pointed out ...
> No, you didn't. The ADA ...
That isn't what I was referring to. I initially noted that Twitter has very clearly and intentionally positioned themselves as what I can only think to describe as a public platform. Private malls simply do not do that. They are also so many orders of magnitude larger than any private mall that I fail to see a relevant comparison there. It is my understanding that factors such as intentions and size of influence are important in cases like this. I make no claim as to how that argument would go in court, only that it seems like a reasonable one to put forward.
> You need to read the actual text and not just the summary.
I was very careful to clarify that the court did not explicitly rule on that. When the majority opinion goes out of its way to bring such an issue up and makes direct comparisons, I think it is reasonable to assume that they would be open to entertaining such a line of argument. If they thought it was ridiculous then why did they bring it up and go on about it to such an extent?
I initially noted that Twitter has very clearly and intentionally positioned themselves as what I can only think to describe as a public platform. Private malls simply do not do that.
You need to actually read the private mall cases, since the malls actually held themselves out to be replacements for the public square, i.e., to replace Main St and the public park where people used to freely meet and discuss stuff. There is a reason these cases are so important to First Amendment jurisprudence.
The point of the private mall cases is that it doesn't matter if they hold themselves out to be replacements for the traditional public forum, because they're not actually a public forum--they're still just privately owned venues that can withdraw their openness to public expression at any time as a matter of their own first amendment rights.
Twitter is just the new private mall. It may hold itself up to be a public platform, but as a private entity, it can revoke that presentation at any time as a matter of its own first amendment rights.
It is my understanding that factors such as intentions and size of influence are important in cases like this
You would be wrong. This has never been relevant to first amendment cases. Moreover, at the time of the private mall cases, the malls had significantly more customers on an absolute and proportional basis (out of the US population at the time) than Twitter does today in the US.
When the majority opinion goes out of its way to bring such an issue up and makes direct comparisons, I think it is reasonable to assume that they would be open to entertaining such a line of argument.
The ruling does not "go out of its way" to compare social media platforms to public forums. In mentions "public forum" only once, offhand, as one of the ways that social media could be used by the appellant whose civil rights were being violated when the government tried to bar him from using social media. And even then, under the lineage of the private mall cases, it's irrelevant because private websites are still private websites with their own first amendment rights to control the speech that appears on their websites.
There is a large gap between the Twitter user base and the number of visitors in a mall. Are you saying that quantity doesn't matter, we should uphold the principle on its own? I think the more people use a platform, the more society needs to regulate it to its benefit.
Yes. On a relative basis for decades malls were a larger part of American life than Twitter is or ever was. The fraction of people that actually use Twitter is extremely small once you leave SV and Hollywood.
Currently. Might not be long after this change to Section 230 enforcement.
> Twitter matters to political discourse, knitting doesn't.
I don't follow this logic. There are substitutes for Twitter, even banned users can view publicly posted content on Twitter, and the CDA Section 230 has nothing to do with "political discourse" -- it describes all content.
I'm also fascinated that you used the word "political" and not "policy". All things "political" could vanish tomorrow and the world would be better off. Not being able to discuss policy issues/ideas would be tragic.
It easy to make it workable, just claim that general-purpose platforms beyond a certain use size become public forums where freedom of speech must be protected.
If an online forum wants to curate speech it should be treated as a publisher. Or, perhaps develop some legal regime that recognizes that smaller forums can be restrict to certain topics, but not viewpoints if they want to retain their immunity against defamation.
And so if I run a knitting forum I am not allowed to restrict people who want to turn it into a pornography one. And how would it work for spam. This could end up in a situation where a large spammer could force websites to not remove spam.
It sounds unworkable and over the top just to protect some people who aren't even having their rights impeded.