The Right To Free Speech Online: Time, Place, And Manner Restrictions
Given the current outlook of society and specifically the right to free speech online, the question remains as to who is obligated to comply with the rules and provide those rights? It is known that individuals purposefully protesting to cause a "heckler's veto" can be deemed as a violation of First Amendment rights. However, what about private institutions? Clearly, one might find it reprehensible, if not unconstitutional to force businesses to provide a forum for speech they disagree with entirely. Yet, there are businesses that thrive on the idea of providing an online forum to the general public. For example, Twitter, Facebook, and Reddit, which are purportedly bastions of social media rights, are currently struggling between their rights as a business and their market purpose, giving a way to the public's dissemination of opinion. So, what obliges a private entity to allow free speech? Can Twitter, Facebook, and Reddit do so without reasonable justification? How can you ensure your speech will be protected online?
Before diving deeper, it's important to remember the First Amendment, which states: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; a few 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." In short, this amendment prohibits governments, but not private individuals from restricting free speech.
This is why an employer can fire an employee for certain conduct online. When it is applied to a private party, the current case law imposes the restrictions towards an online forum only if it is a public forum. Although, previous case law may have applied to physical properties, there is nothing for online forums. The closest decision comes from Arkansas Ed. Television Comm'n. v. Forbes, ruling that public broadcasters don't need to give full and open access to a forum. However, even this leaves out current restrictions of free speech, like a ban from social media websites.
The issue of private censorship has become more pronounced in recent times. From our last blog posted on the matter, Reddit has expanded the issue. Instead of editing posts, they've now moved to removing boards entirely. These boards were highly political and against the owner's politics or views. Yet, it was probably due to the violations of their website terms and conditions (e.g., doxing, child pornography).
The emphasis is on the terms and conditions for the website. In arguendo, this is the cause of some of the controversy as websites like Twitter have become defenders of free speech. Especially when Twitter hosts defamatory content and refuses to identify the author unless a court issues an order. For any online company that allows the free expression of ideas, clear terms and conditions may help avoid unnecessary backlash.
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