BEDI: Free speech is more complicated on internet
Column: Through a Glass, Darkly
Free speech is a doctrine that has been fairly contentious in the past few years. Much of the discourse surrounding it has focused on physical locations — colleges or meeting halls, for example. But the key 21st-century issue regarding free speech has less to do with what is said and more with where it is said.
After all, the internet is the de facto public square of modern America, and it is only set to increase its share of space. A case study might be the best way to tell which way the wind is blowing in regards to speech on the internet. What could serve as a more entertaining (and topical) case to focus on than one involving former President Donald J. Trump’s (former) Twitter feed?
The facts of the case Knight Institute v. Trump were as follows: Trump, having blocked several individuals from his Twitter account, was taken to court by the Knight Institute, a speech advocacy group. The U.S. District Court for the Southern District of New York decided against Trump, and the Court of Appeals for the Second Circuit later affirmed the ruling 3-0, according to the Knight Institute.
This ruling depended on a specific interpretation of the public forum doctrine of free speech (first established in 1939, in Hague v. Committee for Industrial Organization). The doctrine states that the government is obligated to protect free speech in designated or traditional forums of speech, like street corners and public parks. The rise of social media and the internet have made the nature of the public forum harder to pin down.
Accordingly, Knight Institute v. Trump sets an important precedent in this regard. As the court wrote, “The District Court held that the ‘interactive space’ associated with each tweet constituted a public forum for First Amendment purposes because it was a forum ‘in which other users may directly interact with the content of the tweets by ... replying to, retweeting or liking the tweet.’”
As it had already been made clear by the Trump administration that the Twitter account was intended for presidential communication, the Circuit Court considered the exact nature of a Twitter thread and decided that it constituted a public forum — one which the President (since he is a public official) could not bar anyone from based on the content of their speech.
Twitter is not unlike other social media websites regarding interactive spaces.
Accordingly, similar protections of speech will likely be extended by the court to public accounts on Facebook, Instagram and the like. As the digital era comes of age, it will be interesting to see how the courts continue to adapt the public forum doctrine to speech — perhaps even virtual reality gatherings will be designated public forums, like digital street corners.
Although, this does not mean it is open season on flooding public officials’ private messages. Dissenting with the appellate court’s decision to deny a rehearing of the case, Judge Michael Park wrote that the ruling could result in “the social-media pages of public officials (being) overrun with harassment, trolling and hate speech, which officials will be powerless to filter.”
In the interests of smooth administrative functioning, it is always possible that a future court could decide that public officials have the right to take action against trolls or other kinds of abrasive personalities online. In any case, it is unlikely that future courts will clamp down on free speech rights in online forums.
Defining a virtual space as a public square seems to be a strange position to take. While there may be some formal similarities, the psychological aspects of participating in both are vastly different.
In the absence of the sort of face-to-face or soapbox-like drama of an in-person, public meeting, we are provided with a veil blocking off the actor on the other side of the interaction. As such, communication becomes far less personable — and far more efficient.
This efficiency poses a direct threat to smooth public operations. Imagine speaking to a crowd that can heckle you all at once, in unison. This does not make for happy communication between public officialdom and the public itself.
The inherent problems of free speech on the internet will only come to multiply in the following years, and inevitably, pressure will mount on the courts to adopt a doctrine better suited to the modern age.
Sumit Bedi is a School of Arts and Sciences sophomore majoring in philosophy. His column, "Through a Glass, Darkly," runs on alternate Thursdays.
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