Free Speech 2.0?

The Washington Post ran a story yesterday about postings on the website AutoAdmit, which calls itself "the most prestigious law school admissions discussion board in the world." These postings included personal attacks and demeaning messages about women at the "top 14" law schools, with pictures and links to a contest where people were invited to vote on the "hottest" female law students at the "Top 14" law schools (Stanford students, happily, stayed out of the fray).

Certainly, those who have legitimately been libeled or whose right to privacy have been violated have recourse through the law. But what about those who simply said offensive things? In a world of Web 2.0, when so much of society's communication and attention span has moved online, do unpopular minority viewpoints still have a voice? Or can they be silenced at the whim of private companies and individuals? AutoAdmit has taken a stand that it will "almost never censor content, no matter how abhorrent it may be," but other sites may not be so speech-friendly.

In the offline world, unpopular speakers who want their message heard have a place to speak. They can go to public forums, places where speech has traditionally been given a high level of constitutional protection. These public forums include the streets, parks, and other places that have been historically open avenues for speech or have been designated as places for public speech by the government. These public forums are generally effective channels for speech because they get significant traffic (people tend to travel through and congregate in streets and parks).

However, in the online world, "public forum" equivalents tend to be privately owned. Those places where the majority of people spend their time online are owned and operated by the Googles, Yahoos, and Facebooks of the world. These privately-owned public forums have taken the place (in the online context) of parks, streets, and other offline public forums. But because these are privately owned, constitutional protection of speech may not apply. In fact, a recent decision by a district court in Delaware, Langdon v. Google, said that constitutional protection doesn't apply to Google's AdWords because the AdWords program is not a government owned public forum, hence there was no government action.

If that's the case, then sites like the Facebook have complete latitude to censor speakers however they want. They can choose to silence anyone saying anything bad about their company. They can take down materials they find offensive. They can (and do) take down "cyberbullying" postings at the request of other users. Thus, the Googles, Yahoos, and Facebooks can control, at their whim, the public discourse in these private public forums and effectively silence whichever viewpoints they choose. (Though there will still be market regulation, the market by definition favors majoritarian views, leaving unprotected the unpopular minorities.)

This may not be an entirely bad thing. We may think as a society that it is more important to allow private companies to control what happens within their private sites than to let minority viewpoints access these forums. After all, these minority viewpoints have not been completely silenced, they have just been denied speech in a particular place. They can just go somewhere else.

Of course, literally, these viewpoints still have a voice. Anyone can still set up a blog or a personal web page with little time or money, but unless they have access to the private public forums of the internet, chances are they will never be found. Though the internet might transform anyone with an internet connection into a town crier, when that town crier has no audience, he might as well be standing on a soapbox in his backyard yelling at his shrubbery. His voice may make a sound, but it will not carry its message.

The real danger here arises if these private public forums become so ubiquitous and control so much of the market share that not being able to speak on them is effectively not being able to speak at all. While private public forums might not have reached this point yet (though Google may be close in terms of searches), if it does happen, can we say then that the Constitution must apply?

The Supreme Court has applied constitutional free speech protections against private property owners in certain situations, namely where the private property owner is standing in the shoes of the government (for example, when an entire town is owned by a corporation, the corporation is subject to the First Amendment). It will be interesting to see if, as Google becomes more and more a search monolith, whether other courts will follow the approach in Langdon v. Google.

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