[insickness]

> "Ownership does not always mean absolute dominion. The more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it."

This from Marsh v. Alabama, 326 U.S. 501 (1946), a case decided by the United States Supreme Court, in which it ruled that a state trespassing statute could not be used to prevent the distribution of religious materials on a town's sidewalk, even though the sidewalk was part of a privately owned company town. The Court based its ruling on the provisions of the First Amendment and Fourteenth Amendment. https://en.wikipedia.org/wiki/Marsh_v._Alabama

[tptacek]

Everything the court has done since Marsh v Alabama has walked that decision back, and I think you'll have a hard time finding legal experts to back the interpretation that Twitter owns the obligations of a public square.

We've had threads about it on HN, but it's also (for obvious reasons) come up recently, and here's Ken White citing a recent SCOTUS decision knocking this idea down:

https://twitter.com/Popehat/status/1141766582382678016

(The whole thread is good).

[joshuamorton]

There's another thing that I think is often glossed over in discussions of Marsh v. Alabama (I'm not a lawyer though, and Ken is probably smarter than me anyhow).

But that is that Marsh v. Alabama had the company wanting to use a state law to kick people out (and this was repeated with the California case Pruneyard). "The state doesn't need to actively help you kick people exercising their 1A rights in a place you don't want them to" is very, very different from "The state can prevent you from exercising your own autonomy to prevent someone from re-accessing your property".

If the company town put up a fence and a gate, they wouldn't be forced to let anyone in.

[splistud]

I wholly agree with you. They do, however, own the obligations of a public forum if that is how they ask to be regulated.

They are playing cute with political speech. They aren't publishing in the traditional sense. But heavy curation of independent content is (at their volume) publishing - without the regulation accorded publishers. They are, by their actions, espousing certain political ideas by only allowing those ideas to exist in their 'public forum'.

For anyone, even a staunch libertarian, to claim that the government should not get in their kitchen on that basis is naive in my opinion.

[tptacek]

I don't think you'll find a lot of lawyers who specialize in speech and 230 that agree with this interpretation either, and it would have extremely wide-ranging consequences for the entire Internet that the fiercest advocates of this position would not like at all.

[splistud]

I expect that you are correct. However, allowing an org to act as a publisher by heavily curating who is allowed to use their 'forum' is having wide-ranging consequences for our society. As they are occupying a spot in the regulatory scheme that they no longer deserve, redressing this with regulation is necessary.

[tptacek]

I don't think anyone wants another long thread recapitulating the whole debate about Twitter's obligations to to society; they can just read the thousands of HN comments that have been written in the last week about it.

What I will say is, however you hope to resolve this problem, eliminating the 230 protections is probably not the right way to go about it if you want providers like Twitter to be less intrusive, or for alternative venues to be viable at all. I think the only coherent "free speech" strategy that involves attacking 230 is accelerationism; that maybe by blowing up the US commercial Internet we'll somehow all migrate to a completely free blockchain Internet run out of the Azores or something.

[Karunamon]

What do you think about not nuking 230, but making its protections reliant on specific conduct? We can sidestep the 1A issue altogether since these companies would do anything to avoid being held responsible for the libelous, harassing, defamatory, threatening and sometimes terroristic content that their users post every day. That is nothing short of a gift given by the government, and it can be modified or restricted.

Moderation doesn't scale, so I think this is a case of either do what 230 requires or cease existing as a going concern - either of these would be good outcomes, so this is a powerful lever.

Some ideas in no particular order; a platform owner is only shielded from liability inasmuch as they (choose as many as applicable):

1. Provide a forthright accounting of any negative actions taken against an account (no shadowbans, no silent editing or hiding of content from discovery) at the time the action is taken with a forthright explanation of how the conduct broke the stated rules.

2. Provide an appeals process for bans/negative actions run by a neutral third party, with any ambiguity resolved in favor of the appellant.

3. Do not make or enforce ex-post-facto rule changes

4. Demonstrate no pattern of unfair or unequal application of the stated rules

5. If a ban is issued, a "wind-down" period must be granted to allow the banned user time to move what they can of their social network somewhere else.

6. Upon request, your own account's data must be provided in full.

OR

7. Remain completely hands-off from a content removal standpoint. Content is removed if it is either literally illegal or breaks the service and under no other circumstance.

This last one would still allow for spam filtering and content categorization, which would allow the user experience to change little from today, and puts the most control in the hands of individual users.

[sthnblllII]

Laws can, do and need to change as technology changes the political reality. No one elected twitter. Building a pretty website should not give a private entity the power to control political speech.

[tptacek]

I was going to rebut this, but thought better of it. My point is just, there's not much you can do with the jurisprudence as it exists, despite what you might think Marsh means.

[mc32]

Isn’t there precedent for people being able to speak in malls as part of freedom of speech in certain state constitutions as a consequence of Pruneyard vs Robbins?

[Karunamon]

There is, but that case only applies to California (where Twitter is HQ'd, fair enough), and I don't think it's ever been tested for an online service with a ToS.