Guest Post: Social Media, Public Forums, and the Freedom of Speech

(This is a guest post by Praharsh Johorey.)

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1. Introduction

Donald Trump is in most senses a unique President. While this essay does not (and I suggest, could not) seek to examine the scope of this statement in its entirety, I instead concern myself with the legal implications of one facet of Trump’s presidency: his use of social media. The nature of changes wrought on society by social media companies are the subject of significant contemporary academia. And it is politicians, amongst other public figures, who have been particularly adept at adopting social media as a means of communicating directly with their constituents. Donald Trump, with nearly 53 million followers on Twitter (and a similar number on Facebook), uses social media to make public his policy pronouncements, executive decisions and personal opinions on government functioning. These encompass most forms of government statements having significant importance to the American public, and have been acknowledged by his government as constituting ‘official statements’ of the Presidency.

With such important information being shared on such media, often before more traditional forms of public pronouncement through government officials, surely the public can reasonably expect to be allowed access to such forums to enable and aid their participation in a democratic society?

This question was recently the subject of adjudication before the Southern District of New York, which decided that the blocking of seven US citizens’ Twitter accounts from access to the Twitter account of the President, ‘@realDonaldTrump’ abrogated their constitutional rights. The First Amendment rights of individuals on a ‘modern public forum’ like Twitter precluded them from being denied access to Trump’s Twitter account solely on the ground of their political affiliation, beliefs, or the content of their objections to his policies.

The Trump twitter case raises the following question: whether the limits on Constitutional adjudication, particularly the freedom of speech does, or indeed should apply to social media. To answer this question, I make the following arguments – in Section 2, I try to locate and negate the theoretical argument for making the government the only subjects of constitutional adjudication. In (3), I examine the NY District Court case which held Trump’s blocking of users from his Twitter unconstitutional, and in (4) I examine the manner in which Twitter as a platform could be held accountable for censorship.

However, as mentioned earlier, private parties are not considered the subject-matter of constitutional laws in a classical sense. It is therefore crucial to understand why the state was originally viewed as being the only party against whom constitutional rights could be invoked, and whether such reasoning withstands scrutiny.

2. Justifying Verticality

Constitutions can be divided into two forms based on their subject-matter: ‘vertical’, i.e. those that only regulate state conduct, and ‘horizontal’, those that regulate the conduct of private parties. Both the American and Indian constitution are essentially ‘vertical’ constitutions, predominantly limiting the conduct of the state. The American Constitution required that there be ‘state action’ in order for the constitutional protections in the Bill of Rights to apply, and that if private parties are alleged to have infringed a right, they must be sufficiently connected to the government to constitute state action. The meaning of the term ‘state action’ has been the subject of intense discussion both inside and outside the US Supreme Court, with the Court having applied the ‘public function’, ‘nexus’ and ‘state-authorisation’ tests to bring the disputed act of a private party within the bounds of state-action and justiciability.

In India, the Constitution adopted what some commentators call ‘a mixed vertical position’, whereby only select Articles, namely Article 15(2), which prohibits discrimination, Article 17, which outlaws untouchability and Article 23 and 24, which prohibit trafficking and bonded labour are said to directly regulate the conduct of private parties. In addition, the Supreme Court of India has applied horizontality indirectly, by imputing ‘statehood’ under Article 12 of the Constitution to private organisations through the ‘public function’ test.

Richard Kay, in defending the dichotomy of vertical and horizontal constitutions, argues that the Constitution creates broad principles of legal conduct that are norm-creating in nature, which are supplementary to the ordinary laws that govern day-to-day conduct. In Kay’s view, subjecting all disputes to the Constitution would ‘undercut the certainty made possible by legislative regulation’, creating a more ad-hoc justice system, converting it into ‘one great arbitration that would engulf the courts of law.’ Therefore, the Constitution was targeted at only certain specific loci of power, which the drafters believed posed ‘special dangers and insufficient safeguards.’

The predominant argument against this divide is that there are no purely private actions. Even where the state does not actively participate, party conducted is moulded and shaped by state law and regulation, granting tacit permission to the ‘private’ act in question. The creation of private persons, classification of acts as private and the creation of an intricate framework of laws within under which private actors participate in society are all creations of public law – rendering them potentially culpable for private harms. A closer look at Kay’s arguments reveals that even they are not an unequivocal defence for the public-private divide. He accepts in Part II of his paper that all private disputes are ‘public in some intrinsic sense’, and that there are certain private functions, such as those delegated by the state which may be interpreted as being within the scope of the Constitution.

3. The Millenial Public Fora

First, let’s be clear about what the NY District Court judgement did and did not say. While recognising on page 60 of the judgement that Twitter cannot be considered a ‘traditional’ public forum, the Court held that the interactive space accompanying each tweet, i.e. where people are allowed to share, comment on and otherwise engage with the tweet, may be considered a designated public forum. Because Twitter by design was created to allow users to ‘interact with other Twitter users in relation to their tweets’, and that users can use it as a tool to ‘petition their elected representatives and otherwise engage with them in a direct manner’ – the interactivity of Twitter may be considered one of its defining characteristics. Additionally, there are no limiting criteria on who is allowed to join such platforms, enabling the creation of a vibrant and extensively used public space. Taking these factors together, the Court declared it amenable to First Amendment rights.

Prominent scholars have contended that no questions of ‘horizontality’, i.e. the imposition of constitutional rights upon private parties, are raised in this case. They argue that because the judgement hinges only on a citizen’s right to access government speech (being Trump’s announcements) – where such speech was made, even if it is a private platform, is irrelevant.

This is incorrect. The principle finding here is not that citizens have the right to access Donald Trump’s speech wherever it is made – it is that Constitutional principles are granted supremacy over the rules and regulations that bind all Twitter engagement. As per Twitter’s rules, all users are granted the right to block users without justification. The District Court subjected this right to the First Amendment rights of those who were blocked. There is no question that Donald Trump owned and operated his Twitter account as a regular user, subject to the private rules of the platforms. His status as President, and his extensive use of the forum to make government pronouncements was allowed to alter the very nature of the platform – transforming it from a private account to a public forum within which all users may exercise a constitutional freedom of speech. It is my contention, therefore, that every account that fulfils some conventional public function (all politician’s Twitter accounts, for example) transforms to being a designated public forum, accompanied by all the rights of the Constitution.

This framework requires certain clarifications. First, it is clear that not all Twitter engagement should be subject to the rules of Constitutional law. A private user should have the right to block/mute another account – such conduct raises no questions of public interest, nor the discharge of any public function. What makes a politician’s social media account inherently distinct is their utilisation of the platform to discharge public, and even constitutional responsibilities in which members of society have a keen interest. Similar characterisation cannot be imputed to purely private conduct on the same platform.

Further, this doctrine does not restrict the ability of prominent Twitter users to block or censor speech that is abusive, vitriolic or threatening – however, it subjects this decision-making to Constitutional rigour, prohibiting users from engaging in viewpoint discrimination. Thus, the operators of Narendra Modi’s Twitter account, for example, should not have the ability to block those who dissent against his policies solely for the expression of dissent itself.

4. A Censorial Social Media

The second question I seek to address is whether individuals may raise any claim against Twitter as a platform, in situations where they find themselves subject to algorithmic censorship, or platform-imposed silence. Here, I would contend that the well-known ‘public-function’ test [which imbues private organisations with the constitutional character of the state when they perform public/state functions] is indisputably applicable to social media companies.

There is little dispute to the position that social media forums now occupy a hugely significant position in modern society, as the hosts and arbiters of the world’s information. The Supreme Court of the United States made a number of significant observations to this end in 2017 in Packingham v. North Carolina, where it was required to adjudicate whether legislation that prohibited sex offenders from use of any social media was constitutional. In declaring that the legislation was overbroad and in violation of the offender’s First Amendment rights, two observations of the Court are significant:

‘A fundamental First Amendment principle is that all persons have access to places where they can speak and listen, and then, after reflection, speak and listen once more. Today, one of the most important places to exchange views is cyberspace, particularly social media, which offers “relatively unlimited, low-cost capacity for communication of all kinds,” to users engaged in a wide array of protected First Amendment activity on any number of diverse topics.’

‘With one broad stroke, North Carolina bars access to what for many are the principal sources for knowing current events, checking ads for employment, speaking and listening in the modern public square, and otherwise exploring the vast realms of human thought and knowledge. Foreclosing access to social media altogether thus prevents users from engaging in the legitimate exercise of First Amendment rights.’

The Supreme Court’s observations are a clear enunciation of the power and all-pervasive influence of social media on our lives, and the visceral impact of being excluded from such media – with J. Kennedy explicitly declaring it a ‘modern public square’. However, the Court omitted to enter any discussion on the private ownership of such social media, and left open the question on the applicability of the public-forum doctrine thereto.

In the context of the Indian Constitution, the wording of Article 19(1)(a) does not mandate that such public forum analysis be entered into. The First Amendment’s wording eliminates the ability of the US Government to interfere with free speech; whereas Article 19(1)(a) instead confers a broad right to free speech and expression, that is then explicitly limited by subject-limitations under Article 19(2). There is no additional protection granted to speech communicated in a public fora under Indian Constitutional law, and as a corollary, there is no textual limitation on the freedom of speech being extended to an individual communicating on private platforms. Article 19(2) instead confers upon the state the power to legislate limitations to the freedom of speech on grounds of the security of the state, sovereignty and integrity of India, etc., but does not require that such right can only be claimed against the state, or state functionaries.

Scholars contend that the use of the word ‘law’ in Article 19(2) suggests that the right under Article 19(1)(a) is enforceable against the state. This is true – the wording of 19(2) allows an individual to make two claims against the state – first, that the censorship in question does not come within the established grounds, and second, that even if it does, the restriction on speech is ‘unreasonable’. Nonetheless, the wording of 19(2) is insufficient to establish the state as the only functionary against whom the right may be claimed, with no explicit recognition that the freedom of speech is a public law right, or that private parties are inherently incapable of denying an individual such freedom. A comparison with the wording of Article 14 makes the point more clear:

Article 14: The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.

Article 19(1)(a): All citizens shall have the right— (a) to freedom of speech and expression;

(2) Nothing in sub-clause (a) of clause (1) shall affect the operation of any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right conferred by the said sub-clause in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, defamation or incitement to an offence.

It is clear that Article 14 views the State as the exclusive functionary against whom violations of the right may be claimed. Article 19 is not worded with the same exclusivity, imbuing upon individuals an inherent right to freedom of speech. However, it grants the state the right to make reasonable restrictions to the freedom of speech under certain circumstances – a right not granted to censorial private parties, ostensibly.

In this vein, I contend that Constitutional tests may be squarely applied to social media organisations, and that only the tests established under Constitution law to deal with censorship, obscenity, hate speech and other forms of harmful speech can peaceably resolve issues of private censorship by social media companies, and form the basis of a legal adjudication of free-speech online. In the context of free speech, the problems with the ‘vertical’ application of constitutional are foreseeable. Individuals do not rely solely on government platforms (public radio, television) to communicate, granting significant censorial powers to private parties like Facebook and Twitter. While the aforementioned companies argue that such powers are used sparingly, if at all, content reflecting hate speech, obscenity, communal incitements and sedition often manifest themselves in their most vicious avatars online – making it arguably necessary for these forums to put editorial guidelines (or ‘terms of use’) in place and invoke them frequently.

As may be apparent to the reader, the scope for misuse of such powers is immense. While all rational individuals would agree that Facebook can and should censor photos and videos of be-headings and child pornography, for example, the same degree of certainty does not apply in the censorship of certain political ideologues, governments and media outlets. What makes the threat of overbroad censorship particularly likely is that due to the sheer volume of content that social media companies are required to sift through, (sometimes within short periods like twenty-four hours, as mandated by the German law on hate speech), such tasks are outsourced from human judgement to algorithms. The most visceral effect of such outsourcing is that inherently subjective decisions about a person’s intent, double-meaning, humour, language and slang and reduced to objective mathematical parameters by which algorithms may quickly flag and censor conduct, subject to human review – which I contend vastly increases the potential for overbroad flagging, having a chilling effect on speech online.

Individuals on social media forums should therefore have the right to claim a freedom of speech online – allowing them to invoke constitutional protections in situations of overbroad censorship, undue denial of access to speech and the arbitrary private restrictions on conduct online, without adequate recourse to redress mechanisms.