Artificial Interruption

by Alexander Urbelis (alex@urbel.is)

Public Squares and Private Rights

In light of my recent columns on political speech, sedition, and online platforms, I have been thinking of an instance in 1996 when campus security ejected me from a Hillary Clinton political rally.  It was hardly a propitious start to my first semester as a freshman at the State University of New York at Stony Brook.  Allow me to explain.  I had nothing against Hillary Clinton.  Hillary was then the First Lady of the United States; this was well before her ascendancy to the Senate and then to Secretary of State, and decades before Hillary set up her infamous email server in Chappaqua, New York, just a few hours away.

I heard at the last minute that Hillary was on campus and that she was going to be stumping for a local politician running for Congress.  The event was being held in the Staller Center, the largest auditorium on campus.  Secret Service abounded.  Campus police were out en masse.  Through much effort, I managed to social engineer my way inside without a ticket, but that wasn't why I was tossed out.

I was fairly appalled - but not surprised - by the rigid, pre-canned nature of the event.  When shown to your seat, ushers presented you with a standard issue political banner bearing the name of the local pol running for Congress.  Prior to the event starting, as if on the set of a talk show, stagehands instructed the audience about when to clap, when to stand, and when to wave our banners ahead of the sweep of television cameras.

The other side of these banners, it turned out, were blank and as pure as the driven snow.  And I, as it turned out, was a typical 18-year-old hacker who always carried a large, black, permanent Sharpie pen in his bag.  Being short of time and within eyesight of security, I had thought about what to write and what kind of statement I should make with this opportunity.  Railing against nothing more than the precise choreography of the event, I settled on simple block letters bearing the exclamation, "Boo!"

When the cameras swept through the rally towards my section of the audience, we were instructed to stand and wave our banners.  I stood and waved my "Boo!" banner.  Security saw this, came over to my seat, and informed me that I was not allowed to do that again.  The cameras came around again.  I stood up again.  I waved my "Boo!" banner again.  Security came around again, this time angrier than the last.  I was informed that if I did that again, I was going to be removed from the auditorium.  The cameras came around again.  I stood up again.  And yes, you guessed it, I held up my "Boo!" banner again.  When security came around again, they made good on their promise and escorted me out of the auditorium.

I was polite about the situation.  I thanked security for the escort and then said to them, "Do you mind if I ask one question?" security replied, "What?"  "Can you tell me what happened to the First Amendment today?"  Dismissively hissing in response, security replied, "You should ask the Secret Service about that."

In hindsight, I wish I had.  Stony Brook is a university that the State of New York owns and operates.  It was being used as a real-life public forum to host political speech.  Curtailing my right to hold up a "Boo!" sign infringed on my First Amendment rights.  And while every physical venue - state-owned or not - has the right to expel the unruly, my simple speech act may have been inconvenient but was certainly not disruptive.

Public forums, these days, have transformed: they are digital as well as physical places.  In Knight First Amendment Institute v. Trump, the Second Circuit Court of Appeals held that because Trump was using his @realdonaldtrump Twitter account as a platform for official government business, it had become a public forum, and it was therefore unconstitutional for the then-President to ban citizens from viewing and commenting on his actions, regardless of how unsavory the comments may have been.  This case recently made its way to the Supreme Court of the United States, where the justices unanimously dismissed the matter as moot, the reasons being that Donald Trump was no longer President and that Twitter had banned Trump from its platform forever.

Justice Thomas, however, used this opportunity to opine about the strange legal tension between a social media platform being considered a public forum, yet being privately owned and having the absolute power to moderate, censor, and even ban the President of the United States.  Justice Thomas argued that usually the government (either state or federal) has some kind of control over what would ordinarily be a public forum.  This is not the case with Twitter, Facebook, or any other platform.  Indeed, in the United States we do not even have any overarching federal privacy or data governance statutes that apply to these platforms.  Perhaps then, Justice Thomas mused, it was high time to consider regulating social media platforms similarly to how telephone companies are regulated, i.e., as common carriers.  Common carriers - private entities that perform a public service - cannot act unconstitutionally in denying access or services to persons.  Regulating social media in this way would thus bootstrap certain constitutional rights to users of the platform.

Now I know this is on the whole a bizarre idea, but as a thought experiment, what if we took Justice Thomas' concurring opinion further - what if the government operated a social media platform?  On its face, this sounds like a privacy nightmare.  The government having access to your social media data, your private messages, your connections, your login passwords, all your metadata, etc., seems like a disaster.  Well, guess what?  The government, in essence, already has access to that data via legal process, i.e., a search warrant or a subpoena.  It does not take much more than an active civil case or criminal investigation to obtain your data.

If government operated a social media platform, it would truly be a digital platform that was designed and intended as a public forum.  For this reason, we would not need to bootstrap our constitutional rights to legal fictions and fact-specific analyses - all of our civil rights and the entirety of the Bill of Rights would apply to the government's conduct.  Unless we signed away our rights through terms of service or privacy policies, the government would still need the same form of judicial authorization to access our data as they do now.

What is more, if the government controlled this data, there is already legislation on the books, the Privacy Act, enabling us to access, inspect, correct, or delete our personal data.  Data about how the government used or with whom information was shared would be obtainable via the FOIA.

And what about the massive troves of data that the government would possess simply by running its own platform?  Perhaps this data could not only be limited but anonymized and placed into a data escrow for the benefit of the public.  Access could be strictly audited and limited to organizations satisfying stringent criteria of an escrow, with commercial access to the data being prohibited, highly regulated, or sold at a price to diversify tax revenues.  Perhaps commercial transactions originating from such data could be taxed, providing a much-needed boost to the Treasury's post-COVID coffers?

But most important: if the government operated a social media platform, the First Amendment, with its 245 years of common law, would protect the speech of all its users.  That means that neither conservatives nor liberals could complain about being treated unfairly on the basis of viewpoint.  It also means that liberals and conservatives - without the algorithmic artificial isolation of viewpoint echo chambers - would often clash and interact directly with each other.  In the age of rampant disinformation and political polarization, speech, digital public forums, and our democratic processes could not be more inextricably intertwined.

As Justice Brandeis stated about the need for dialogue in Whitney v. California, "If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the process of education, the remedy to be applied is more speech, not enforced silence."  Though I still believe a government-operated social media platform is, on the whole, a dangerous idea, I am starting to convince myself that the notion may not be as crazy as I thought when I started writing.  Stay with me in future columns to travel further down the rabbit hole of this thought experiment.