Twitter’s Common Censorship Could Actually Be Unconstitutional

Could Twitter’s censorship actually be unconstitutional? That’s what a recent article in the Washington Post argues, saying that the site’s banning of extremist speech could run afoul of the First Amendment (at least according to recent oral arguments in the Supreme Court).

The standard belief now is that people have free speech “in the public square” to say whatever they what. That right doesn’t extend to cyberspace though, as private companies own these social media sites. But in a recent article, contributor Mark Grabowski explained the internet today is indeed “the popular public square” and should be treated like it.

While hearing arguments in the case Packingham v. North Carolina, Justice Anthony Kennedy said that Twitter and Facebook had not only become, but passed “the public square” as a place for discussion and debate. “Their utility and the extent of their coverage are greater,” he said, “than the communication you could have ever had, even in the paradigm of public square.” All 50 US governors, all 100 US senators, every member of the House, and the past few Presidents all have active Twitter account that’s at least maintained by a staffer, so it’s an easy argument to buy.

Grabowski noted a free speech case in California from nearly 40 years ago that’s surprisingly relevant today. In that case, people were concerned because the town “Main Street” was quickly dying out to mega malls, and the freedoms people enjoyed on those streets were being diminished. There were far more people going to the malls, but since they’re on private property, people couldn’t have their voices heard. The state Supreme Court ruled people’s right would extend to private property.

In today’s world, the shift from Main Street to mega-mall, is of course similar to the shift to the internet. And since there are plenty of social media “stars” that make their living off of Instagram, Twitter, and YouTube, what would happen to those people if their livelihoods were threatened just because the site didn’t like their material?

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