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Several years ago the Supreme Court in Romania ruled that social networks (Facebook is the most prevalent in Romania) are public space (source).

If you live in Romania, your Facebook page is now considered public space. The recent ruling by Romania's supreme court is the first of its kind in Romania, where there are over 7 million Facebook users.

Romania's High Court of Cassation and Justice (HCCJ) has recently affirmed a lower court's decision that personal Facebook pages are considered public space, even if they are accessible to only a small group of friends.

This decision has now been affirmed by the HCCJ on appeal, meaning the determination that Facebook pages are public space is now the legal reality in Romania.

Reducing the scope to political life, from a layman's perspective treating social networks as public space seems natural, as one could easily see that most news mix information from live/recorded interviews with information from public posts of political figures on Facebook.

However, according to this article treating social networks as public space is not trivial because owners are private companies which can be pressured by some governments to partially censor some content:

Social media has, in many ways, taken on the role of the public sphere, [...] the online social spaces standing in for the public sphere are private ones, owned by billionaires and shareholders. Nevertheless, we treat them as public spaces.

The trouble with private companies controlling our speech is that they are subject not only to shareholders, but also to governments. [...] these companies often face an unfortunate choice: to avoid being blocked by a government’s censorship apparatus, they must sometimes agree to take down content, at least in a given country.

I have looked for a source aggregating how western countries treat social networks, but could not find one. To narrow down question scope, I am interested in how it works in US.

Question: how are social networks treated in the United States from the public vs. private space perspective?

migrated from politics.stackexchange.com Oct 12 '17 at 12:10

This question came from our site for people interested in governments, policies, and political processes.

  • This appears to be a questions about how laws are interpreted and applied, not about the political processes which make them. I will migrate this question to Law.SE. – Philipp Oct 12 '17 at 12:10
  • I'm not sure the question is meaningful. I'm not aware of any concept of "private vs public space" in US law that has been applied to websites in any way whatsoever. – Nate Eldredge Oct 12 '17 at 13:50
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Public/private space is an unclear term of art which is not relevant to US law. There are four relevant categories created by the interaction between the private / government distinction, and "open to the public" vs. "not open to the public" (for example: government parks, military bases, private shopping malls, your own home). The First Amendment says

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Obviously the government cannot prohibit you from criticizing or praising the president, per se, and as applied to things in the government park category, that means that you can give a soapbox speech on whatever topic you want in the park. On the other hand, the First Amendment does not prohibit the government from protecting individual property rights, which means that you cannot invade my home and use it as a venue for a protest, without my permission: that is, the First Amendment does not nullify trespassing laws and constitutional property rights. The courts have long held that the government can designate properties such as military bases as closed areas where demonstrations can be banned, even (US v. Apel) when an easement grants access, so the right to protest on government land is not absolute.

One relevant decision about so-called public spaces on private property and the First Amendment is Lloyd v. Tanner 407 U.S. 551. That court held that

There has been no dedication of petitioner's privately owned and operated shopping center to public use so as to entitle respondents to exercise First Amendment rights therein that are unrelated to the center's operations, and petitioner's property did not lose its private character and its right to protection under the Fourteenth Amendment merely because the public is generally invited to use it for the purpose of doing business with petitioner's tenants. The facts in this case are significantly different from those in Marsh, supra, which involved a company town with "all the attributes" of a municipality, and Logan Valley, supra, which involved labor picketing designed to convey a message to patrons of a particular store, so located in the center of a large private enclave as to preclude other reasonable access to store patrons. Under the circumstances present in this case, where the handbilling was unrelated to any activity within the center and where respondents had adequate alternative means of communication, the courts below erred in holding those decisions controlling.

Subsequently and similarly we find Hudgens v. NLRB, 424 U.S. 507, a shopping mall protest case, where it was ruled that the First Amendment does not negate private property rights. The court observed that

It is, of course, a commonplace that the constitutional guarantee of free speech is a guarantee only against abridgment by government, federal or state...Thus, while statutory or common law may in some situations extend protection or provide redress against a private corporation or person who seeks to abridge the free expression of others, no such protection or redress is provided by the Constitution itself.

The court did refer to prior Marsh v. Alabama (First Amendment argument upheld regarding speech on privatly owned property), 326 U.S. 501, where the location in question was a "company town", indistinguishable from a regular town except that the property was owned by a private corporation rather than a municipal corporation. Citing Food v. Logan, 391 U.S. 308, the Hudgens court observed that

streets, sidewalks, parks, and other similar public places are so historically associated with the exercise of First Amendment rights that access to them for the purpose of exercising such rights cannot constitutionally be denied broadly and absolutely.

The question which the court then raised was

under what circumstances can private property be treated as though it were public? The answer that Marsh gives is when that property has taken on all the attributes of a town, i.e., "residential buildings, streets, a system of sewers, a sewage disposal plant and a ‘business block' on which business places are situated."

and there is

nothing in Marsh which indicates that, if one of these features is present, e.g., a business district, this is sufficient for the Court to confiscate a part of an owner's private property and give its use to people who want to picket on it.

The court reminds us that

it must be remembered that the First and Fourteenth Amendments safeguard the rights of free speech and assembly by limitations on state action, not on action by the owner of private property used nondiscriminatorily for private purposes only.

Whereas,

In the instant case, there is no comparable assumption or exercise of municipal functions or power.

There is no sense in which social media, shopping malls, or news businesses constitute governments: the notion of "public space" is not what's relevant, rather, "government agency" is. "Unfettered access" requires the combination of "is or functions as a government", and "is public (not closed)".

As far as social media (a kind of private property) are concerned, there are recent cases involving what government officials may restrict w.r.t. social media, in particular involving accounts by government officials. Davison v. Loudon County, where a government official banned an individual from access to the official's Facebook page for 12 hours. One of the essential findings of that (lower) court is that the official operated "under color of state law" in maintaining the account, and as such, the banning was a violation of the First Amendment.

There is also a First Amendment case Knight First Amendment v. Trump in the works. The complain alleges that Trump's "account is a public forum under the First Amendment" – we'll see where that goes. However, these cases involve access-limitations by government officials regarding the official's primary means of disseminating policy.

If the First Amendment said (or was interpreted to mean) that anybody has unfettered access to a "public space" and social media constitutes a "public space", then Facebook et. al. could not have terms of service, and all accounts would have to be accessible to everyone – banning simply could not exist. The First Amendment right to freedom of speech is not content-limited to e.g. "matters of public concern" or "things about the government" – you are allowed to protest the actions of a private individual on public land.

  • Thanks for the thorough answer. It is clear that the issue is much more complex than how I thought it was. I am looking forward for a decision in Knight First Amendment v. Trump case. – Alexei Oct 12 '17 at 18:52
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@User6726 made a good description of the laws and court decisions reguarding Free Speech. There is a recent (filed earlier this week) case to also watch for Prager University v. Google, Youtube in which Parger University alleges Youtube's policies regarding offensive content are not properly defined and this allows Youtube to throttle (hide from searching) Prager's political speech because Youtube and Google do not agree with them (Prager is a conservative organization, Youtube is a Liberal Organization.). Ordinarily, Prager does not have a case as Youtube is a private organization and can take down videos it does not agree with as it sees fit.

However, Google/Youtube are California based companies. California's Constitution has a quirk not in the Federal Government's constitution that allows for what's called "Private Public Forums" in it's free speech laws. Essentially under this law, it is unlawful for certain private companies to be considered Public Forums for the purposes of Free Speech. The typical scenario is a shopping mall cannot throw out a patron for protected speech. The argument on Prager can rely on is that Youtube as a private entity has language in mission statements that says it essentially a public forum. As both Youtube and Google are California based companies, they would be under "Private Public Forums" under the California Constitution, meaning that hiding from general public view any video for purely political speech is a violation of the law on Youtube's part, even though it is a private entity and ordinarily would have this protection if it existed in another state.

The Supreme Court has heard on the aforementioned mall case and ruled that as the California Constitution complies with the U.S. Constitution, the granting of more freedoms than the U.S. Constitution is not Unconstitutional.

As one more note, as a general rule, American Jurisprudence sides that the burden of proof in all Free Speech cases is on the party seeking to restrict the speech, not that party making the speech. In theory, the aforementioned case will be used to force YouTube to prove that Prager University's videos are not protected free speech. The United States is very liberal on what is Protected Free Speech, and most of it boils down too context (for example, while you will almost always get a visit from the Secret Service if you threaten one of the protectees, it might not always be a criminal charge. The Supreme Court recognized that the law needs to take context of the alleged threat into account so you don't throw someone in jail for the act of telling an off colored joke or a stupid statement while drunk.)

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