Pruneyard Shopping Ctr. v. Robin
https://supreme.justia.com/cases/federal/us/447/74/#tab-opin...
held that parties could collect signatures for their political activity on mall property due to a provision in the CA state constitution or more generally that a state constitution could offer more protections than federal law or the US constitution provides.
It found that it didn't represent a taking because passing out leaflets didn't substantially harm the mall.
It found that the political speech was unlikely to be confused with the malls and that they could publicly disclaim such association thus it wasn't compelled speech.
We can logically assume both of the above points are congruent with twitter so we can conclude that if CA or any other state provides a similar protection it ought to be applicable. What it notably did NOT say is that such speech on someone else's property was generally federally protected nor if I understand did it disclaim it.
The next question is does CA law make banning people from your social platform an illegal infringement of citizens rights. So lets follow the same case back to CA.
https://law.justia.com/cases/california/supreme-court/3d/23/...
"The Agricultural Labor Relations Board opinion further observes that the power to regulate property is not static; rather it is capable of expansion to meet new conditions of modern life. Property rights must be "'redefined in response to a swelling demand that ownership be [23 Cal. 3d 907] responsible and responsive to the needs of the social whole. Property rights cannot be used as a shibboleth to cloak conduct which adversely affects the health, the safety, the morals, or the welfare of others.'"
In context it is talking about the worthiness of restricting the property rights of owners by forcing them to allow speech on their property.
In fact it calls out the fact that the increase in importance of places like malls makes the cause of allowing free speech there more worthy which is in line with the rise of importance of social media.
Seems pretty clear that there isn't much daylight between allowing people to petition people for an offensive cause in a mall vs on twitter at least in California but while I reluctantly agree with you I have a few concerns.
I'm concerned that in the short term our Orange dictator will end democracy as we know it and would prefer the matter of free speech to be litigated after we have averted the immediate threat and had the opportunity to decrease the power of the executive to decrease the chance of a similar situation. Given the time required for any court decision this seems inevitable.
The court it seems would have found it an infringement on the property owners rights if the activity made say commercial activity at the property impossible. What kind of activity on a platform would be regarded as a taking? Electronic properties are a lot different from physical ones in this regard.
- Is speech from a bot protected? Is it still protected if it pretends to be a bunch of fake people?
- Is using someone else's platform to distribute ads protected? Does it matter if they are political ads?
- Is Slander protected speech? Do we get to remove obvious to us slander or does it require a court to decide?
- Is direct incitement to illegal activity allowed?
- What about indirect incitement? Can I run ads for the purple haters club which aren't themselves directly offensive themselves but promote a group that everyone knows is all about promoting the murder of purple people?
It seems like disclaimers on posts are the safest legal choice as they represent the owners own free speech rights. From the Supreme Court opinion
"appellants are free to publicly dissociate themselves from the views of the speakers"
It seems logical that other limits to your free speech on others property will logically be established to protect the integrity of the platform in the future. It would be better if the limits in question could meet one standard under law.