Free speech is a word which gets thrown around quite regularly in political discussions. Often, without much thought put into whether or not it applies to the topic at hand. In an age of digital communication, it is often hard to differentiate between private and government silencing of free speech. If something is posted on Twitter, then as a private business, Twitter has every right to remove that post. However, if the government allows comments to be submitted about a topic on their official website, then they have no right to remove those comments. As such, in our current form of communication, the rules are so flimsy that some major changes are needed to our freedom of speech laws in order to accommodate modern forms of speech, particularly to address the lack of a public forum through the medium of social media.
For starters, it is important to address the origins and flaws of our current system. For one thing, it somewhat exists in a gray area compared to the intent of the founding fathers who wrote the first amendment. The first amendment was created during a time in which one could be executed for speaking out against the political ideals of British leaders. When the founding fathers began rebelling, their lives were at stake, and not wanting such a tragedy as execution for ideals to happen in America, they instituted the first amendment. Nowadays, however, there are multiple problems with this system. For one thing, speech is no longer relegated to verbal in person communication or publication. Nowadays, a large amount of important communication happens through the internet through hosting companies such as YouTube, Twitter, and Facebook. The founding fathers could not possibly have prepared for such an eventuality. As a result, issues like whether or not official government communications should happen through these hosting companies who are within their rights to censor such speech is a large issue. Also, there is the issue of how that information is being communicated. Think of it this way: a hosting website for content is the same as a bulletin board in somebody’s house. They can allow you to post to it, but they are within their legal rights to decline for any reason. Furthermore, as the content poster, you are within your right to put restrictions on what you post if you are allowed to post it. If the hosting service allows, you can make the content inaccessible to certain people. The issue comes when such communications are being done by government officials whose speech is meant for the public to access. In the past, such communication was done through the public forum such as publicly accessible news feeds or press events conducted by the president’s press secretary. Nowadays, the problem lies in the fact that such communication simply is not as popular of a choice. So what can be done about that?
Back before social media was such a popular choice for communication, we had cable, radio, and print as means by which to publish government official content. In the modern day, however, so much of our daily communication is privatised, to the extent that a public forum is hard to ensure exists. This is bad. To put it more elaborately, government information should not rely on private industries to distribute it because those industries could go bankrupt or are perfectly within their rights to deny the government their services. But with that brief aside ahead, it is worth looking into what happens when the government attempts to use privately owned companies as distribution networks for government information. In the ruling Knight First Amendment Inst. at Columbia Univ. v. Trump, a group of seven people sued Donald Trump for blocking them on his personal Twitter account. While Trump defended that his private twitter account was not a public forum due to it not being affiliated with his position as President, as the American Bar Association reported:
Judge Naomi Buchwald likened his Twitter feed to a public park in which many voices could congregate to express their views and ideas. President Trump’s Twitter feed (where a user can interact with the president’s tweets by responding, retweeting, and more) was differentiated from President Trump’s original tweets, which would be considered government speech and not subject to a First Amendment claim. In blocking individual users, President Trump engaged in unconstitutional viewpoint discrimination, and the court ordered the president to unblock the users who filed suit. (“What Constitutes a Public Forum on Social Media?” par. 4)
If one were unfamiliar with the system before social media, then it would be natural at this point to ask how this form of content hosting is any different from a television network. After all, the aforementioned allegory of a bulletin board applies in the same ways. And if a network decided to cut off a person’s access to the network due to them not paying cable bills, then the network could not be accused of economic discrimination in the way that Trump was accused of viewpoint discrimination. Well, the main difference is that there has always been a public option available. The government publicly releases laws and executive orders passed and television has had PBS to cover government stories. For print media there is the Government Printing Office. One would think that for the online forum, there is wh.gov, which is the official website of The White House. Each branch of the United States government has its own website, why does that not suffice? The issue is that in the modern era, the issue is less one of official documents and more one of public information the president wishes to release. If the president intends to use their platform as a means of discussion with the public, then they are essentially attempting to create a public forum. A static webpage such as wh.gov does not work for such communications as it is a one-way service. The government makes posts and the public sees them. Even if the posts were granted a comment section, this would still be one-way, as citizens would not be able to communicate without responding to something officially published. What needs to be created is a government owned option for such online communication as social media allows, with personal profiles and posts by individuals to their profiles.
Now, there are arguments against this, definitely. For one thing, many will argue that social media’s structure and algorithms are specifically constructed in order to generate more money for the owner. A government should not be operating its communications with the goal of maintaining a profit, as that would imply that they are willing to forgo the best interest of the consumer in favor of the best interest of the bottom line. This is how social media companies operating under the current system function. As political opinionist Maciej Baron puts it
Users have absolutely no say regarding how the companies are run, what features should be implemented, what sort of content should and should not be allowed to be published, and so on. If you want a change, you need to hope that enough people agree with you and put enough pressure on the company. (Baron par. 14).
What needs to be developed is something akin to PBS for social media. A democratically maintained dynamic content hosting service, in which communication happens in real time between officials wishing to communicate through this forum and the citizens. There would be a clear separator between the public and private forum. Now, of course there are some arguments to be made about the content that could be posted to this publicly owned social media site and whether or not it could be manipulated by malicious entities in the ways that current social networks have. But the beauty of this concept is that if such a thing were to happen, the government would have direct access to the data and be able to deal with it themselves, rather than relying on a company with potential faults to solve such issues. Additionally, a large issue with current social media networks is the way in which it polarizes viewpoints by responding to what users have shown interest in with more extreme versions of that interest. A publicly owned option can be prevented from doing that legally. As mentioned earlier by Judge Buchwald, a public forum is akin to a public park. Therefore, if this idea were to function, the concept of allowing any content which would be federally acceptable to say or see in a public park would be a simple but effective means by which to censor and allow content on the platform.
This idea is not perfect, of course. However, the enemy of progress is perfection. If people dwell on the potential problems with all new ideas then nothing will ever get done. What must instead be asked is if this idea is an improvement over what already exists. In a system which is largely privately owned, operates loosely with a law not designed for such a system, and has been likened to a public forum in a district court case, it is worth considering that maybe drastic measures are needed to prevent problems when this system inevitably crumbles. For instance, if Twitter deleted one of Trump’s tweets are they interfering with government communication? If this situation is reversed and Trump’s post has already been deleted, would the government mandating Twitter reinstate the post be a violation of Twitter’s freedom of speech? Such questions crumble in the hands of the current system, which is why a change is needed. This is why a publicly owned social media is needed.
