In a most recent decision, the Supreme Court of the United States decided that Twitter could bar Donald Trump from its platform without violating the 1st amendment of the United States Constitution. The struggle in the decision was between the meaning of the 1st amendment and the American love of capitalism. It was no surprise that the Supreme Court should come out on the side of capitalism. While I am not a Trump lover, I believe that his 1st amendment rights were stymied because Twitter could prevent him from using its platform.
The winning argument before the Supreme Court was that Twitter is a private company and therefore is permitted to make its own rules as to who uses it and for what purpose. I certainly agree If Twitter had made a rule that only Democrats could buy time on its platform, that would be permissible. It could make its own rules as to the specifications of the user or the type of message which the user can promulgate.
However, where the platform generally states that anyone can use Its services, the platform should be stuck with Its own rules. It should not be able to charge people depending on the message with the user makes , and it should not be able to prevent people from delivering a message simply because the platform doesn't like it.
Twitter has become so much a part of the public discourse that our legal system should not permit the company to start regulating who uses its platform In an otherwise legal manner.
We can start with the traditional idea that any person may make any speech in a public park as long as it is not illegal. That is, the speech cannot, for example, be pornographic. You cannot violate the rules of copyright. The owner of the park, which is the public, cannot limit the rights of individuals to exercise their 1st amendment rights.
The difference between the public park and Twitter is that Twitter is a private company. But at the same time Twitter has become so much a part of the public discourse that our legal system should not permit the company to start regulating who uses its platform In an otherwise legal manner. This would be different if Twitter were trying to make a specific message. A newspaper devoted to Democratic or Republican politics should not be forced to allow another person speak on its pages contrary to the principles which the newspaper espouses.
Twitter, on the other hand, pretends that it supports no particular message and that it is open to all. Therefore, it is a public forum, even though the platform is owned by a private company.
One can imagine—particularly in this day and age—that all platforms might become owned by private companies.If that were the only controlling factor, then virtually no one would be able to speak anywhere. For example, if all streets In the city were owned by private companies, then they could prevent individuals from making speechis out in the open.But that would completely undermine the 1st amendment.
My conclusion: how a platform operate should not depend upon whether it is owned by a private company or not. Rather It should depend upon the normal usage of that platform. If it is normally used for public speaking, then the private company cannot regulate the speech used upon it. If the private company wants to take advantage of the fact that it is generally promoting a public platform, then it should be stuck with that proposition.
The same should be true In fact for services which do not fall within the 1st amendment. For example, if a private company owns a public road, it should not be able to stop someone from using the road simply because they do not like that user. Rather, they should be stuck with the type of service which they say that they are providing. Note that this goes beyond the 1st amendment and basically makes the proposition of the 1st amendment, that all of us are free, apply generally.
Michael T. Hertz