A Broader View of Packingham SCOTUS Decision
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My last post focused narrowly on responding to assertions that the Supreme Court decision in Packingham casts doubt on the constitutionality of DMCA Sec. 512(i). But as my friend and colleague Mike Katell observes on his blog, the rhetoric employed by Justice Kennedy in that decision underscores a particular challenge we face as social media continues to alter our relationships to politics, civil rights, and even to one another. In his recent post, Packingham: The Danger of Confusing Cyberspace with Public Space, Katell writes …
“Packingham is a case about constitutional rights that overlooks the increasing privatization of those rights. It is also part of a larger problem of misrepresenting cyberspace as a zone of freedom. This transformation in our relationships to rights, and our perceptions about those rights, is aided by the invisibility of power online.”
A PhD candidate and researcher at the University of Washington Information School, Katell’s post fairly well sums up the hazards of over-valuing social media platforms as the ultimate turbo-boost to civil liberties, particularly free speech. But among the first matters to address in context to Packingham is to remember that we’re not really talking in general terms about “the internet.”
We Don’t Use “The Internet”
The internet is infrastructure. Most of us don’t really think much about the cables, signals, servers, packets, etc. When we use “the internet,” we really mean platforms that are owned by massive corporations; and increasingly our needs are fulfilled by just a handful of companies. In Packingham, Kennedy seems to be partly addressing the matter of access to the internet as a whole, particularly in striking down a State law that would too broadly deny that access. So, in this context, Kennedy’s effusive rhetoric about cyberspace being the “most important place for the exchange of views” is somewhat understandable. At the same time, when the opinion states, “On Facebook, for example, users can debate religion and politics with their friends and neighbors or share vacation photos,” this more narrow focus on a single platform invokes the context Katell and others are talking about.
Social Media is Not Like a Public Park
The main problem with viewing social media platforms as analogous to public spaces is that this view is apt to overlook the extent to which speech itself on these platforms is manipulated by their owners. “Through a combination of architecture (code) and policies (terms of service), social media users are guided and constrained in what they can do or say. Twitter, Facebook, and other platforms routinely block users and delete content that would most likely be considered protected speech if it took place in a public venue,” Katell writes.
It is very likely true that some blocking and deleting would be protected speech in real space, though some blocking and deleting would not be. Web platforms do have a habit of defending speech—defamation, copyright infringement, harassment, incitement of violence—that isn’t protected in any context. But to Katell’s point, probably the first dangerous mistake is to ignore the fact that speech on these platforms is controlled—even to the extent that false or tangential stories can gather considerable steam in the minds of the electorate just by virtue of an algorithm repeatedly feeding similar messages. A steady social-media diet of certain messages can make almost any citizen feel rather under siege by a narrative that might not be true or particularly substantive. We must, therefore, continuously ask to what extent these platforms fuel the present divisive climate rather than ameliorate it with their promises of promoting discourse.
The other danger, however, does arise from the internet industry’s chronic claims to be defenders of speech in numerous cases where harm is actually being done. We have to ask to what extent this warps Americans’ understanding of the speech right, to say nothing of vesting corporations with the power to “protect” speech on our behalf. Every time an edge provider cites the First Amendment as grounds for a business decision—usually to not remove some harmful content—and too many users support this view, we are conferring substantial authority to these private companies to secure our civil liberties for us. Meanwhile, this industry posture feeds a misunderstanding that speech is absolute, which it is not.
The First Amendment prohibits the government from silencing speech. Period. This means that a) everyone will occasionally be offended; and b) some who are offended will take such extreme action that they will effectively stifle the speech of their fellow citizens. This has always been true, and perhaps Justice Kennedy’s exuberant praise of the web ignores the new ways in which social platforms enable some citizens (or non-citizens) to silence others. We see it happen all the time. Twitter mobs erupt and dox an individual by sharing home address, and other private information, with the intent to harass and intimidate the individual into silence. And these mobs come in every flavor across the socio-political spectrum.
This dysfunctional rise in mob culture and tribalism is a bigger topic, but the disconnect regarding speech has often occurred when the site owner and its users defend the mob’s responses as protected speech, which is simply not true by any definition. These privately-owned platforms have every right (and perhaps an obligation) to deny the use of their services to those who would intimidate or harass other users, especially when the speech in question would not be protected outside the realm of cyberspace. Basically, if a restaurant can throw a customer out for harassing another customer, there is no reason to think that Twitter may not do the same thing without raising a real First Amendment challenge. But …
Social Media is Not Exactly a Mall Either
“This case is one of the first this Court has taken to address the relationship between the First Amendment and the modern Internet. As a result, the Court must exercise extreme caution before suggesting that the First Amendment provides scant protection for access to vast networks in that medium,” states Kennedy’s opinion in Packingham.
While the digital rights crowd will love the second sentence in that statement (and I generally agree with it by the way), the first sentence indicating that this is relatively new territory is the more interesting one. A social platform is not exactly analogous to a park or a shopping mall; and public policy has yet to really address constitutional rights in context to these new kinds of spaces—i.e. privately-owned, virtual space that is built for the purpose of public speech.
Parks and malls do no exist for the purpose of speech, although there is a considerable body of local, state, and federal case law, reveling a mosaic of views on allowing or limiting various types of speech at these venues. For instance, a California Appeals court held that a mall could not limit or control visitors who come with the purpose of proselytizing religious, social, or political views to other visitors. I am admittedly anti-pester and think a private facility has a right to restrict a certain amount of pestering on behalf of its customers; but it seems as though the mall’s restrictions, in this case, were viewed as too broad in context to the California State Constitution.
As policy takes shape in relation to cyber-venues, legislators and the courts will look to statutes and decisions associated with physical spaces, but at some point, those analogies must break down, and we enter new territory. It has been a general bias—and certainly the desire of Silicon Valley—that government keep its mitts off “the internet.” But if indeed access to a privately-owned platform like Facebook is held to be a civil right because of the First Amendment, then some form of social-media regulation may be the result of that conclusion. Won’t that get interesting?
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