Platforms and Public Spaces
Clarifying the Public Square
I would like to clarify my argument I presented on Monday that the dominant online platforms, the dominant social media and e-commerce platforms, count as the Virtual Public Square. That these should be considered "quasi-public" spaces.
A Recap of the Argument
Marsh v. Alabama17:
In Marsh v. Alabama,1494 ... the Court reasoned, “the more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the statutory and constitutional rights of those who use it.”1495
Food Employees Union v. Logan Valley Plaza18:
“[T]he State,” said Justice Marshall, “may not delegate the power, through the use of its trespass laws, wholly to exclude those members of the public wishing to exercise their First Amendment rights on the premises in a manner and for a purpose generally consonant with the use to which the property is actually put.
Four years later, in Lloyd Corp v. Tanner21, the Supreme Court answered...by saying that property owners could legally exclude people if their protesting was on property not dedicated to public use AND the protesting (or other form of speech) was not relevant to any activity of the quasi-public property22
I believe it should be reasonably clear that our modern social media and e-commerce companies dominate the boundaries of conversation. They ARE the Virtual Agora, and are just as (if not even more) important as the Physical Agora (made even more clear by the recent coronavirus crisis). What is the purpose of these platforms? Their purposes are, put very simply, to connect individuals (for social media) and to connect buyers and sellers (for e-commerce). In that sense, any form of speech and any good or service that isn't illegal should be allowed. These platforms (note the use of that word) are quasi-public property.
A Clarification: Platform vs. Merchant
I want to explain a difference between platforms and merchants.
With a merchant, the goods and services sold on the merchant's premises are the merchant's goods and services and the merchant's alone. The merchant has every legal right to tell someone to get off their property for being disruptive or breaking etiquette (or doing something worse).
On the other hand, the good/service a platform is providing (first and foremost) is access to a particular space (the "platform"). Platforms can span from farmers markets up to Facebook. It is important to note that platforms have a right to make money from providing access, because this is indeed providing a service (they maintain the space and improve it, etc.). But what a platform is doing is cultivating a space where merchants and the public can meet and engage in commerce and/or where members of the public can engage with each other.
When we get to the dominant e-commerce and social media platforms, the purpose of these business is, put very simply, to connect individuals and/or buyers and sellers. And when so much of our conversations and commerce occur on these platforms, one must conclude that the spaces these platforms are providing access to is the Public Square, and that access must therefore not be reserved for the privileged few, but allowed for all members of the public, so long as they do not act in an expressly illegal manner on them.
One further note I will make on this: there is a "fractal" nature to this discussion. What I mean is that, at different scales, the "dominant platforms" may be different. For instance, the sole farmer's market in a rural town might be considered a dominant platform, even if on the grand scale of things it is incredibly tiny. Of course, as scales change, how we regulate that access may change as well. A democratic system of determining access might be more reasonable in a small town than with the global public on Facebook. This is just me tossing out ideas, but I think you get the concept.
Ultimately, we need to understand that there are different kinds of businesses. And not just "manufacturing vs. publishing" or "industrial vs. service" economies, etc. What I mean here is that the goods and services being provided are fundamentally, perhaps even ontologically, different. And that they must be treated in different ways.
Finally, I want to say this: there will be numerous conflicts between individuals and institutions (or, more specifically, individuals acting in an institutional capacity - like a CEO making a business decision). In these conflicts, we must also understand that individuals act in different manners, and that trying to balance the rights of two "individuals" may not make much sense when those two individuals are operating in such different contexts. We need to be willing to dive into the weeds on this, if we are to ever have a set of policies that meaningfully provide some kind of freedom.
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