Free speech jurisprudence is complicated, and rarely are there easy answers in this space. But social media platforms such as Facebook and Twitter present especially difficult challenges. They have unquestionably cemented themselves as the primary modes of communication in the modern era; they have become the places that we discuss both the trivial and the consequential. But they are also unambiguously privately-owned businesses. If courts try to shove social media into the existing free speech framework without taking seriously the unique concerns it presents, we risk losing the connection between the doctrine and the value judgments that led to the doctrine’s creation in the first place. And that’s how bad law gets made. Moving forward, courts should look critically at how methods of communication have changed, apply the reasons underlying the doctrines (or explain why new ones should replace them), and accept that the doctrine may have to change to more accurately reflect modern communication.

The doctrine as it stands: public forums, nonpublic forums, and private spaces.

Within free speech jurisprudence, the courts use forum categorizations that are based on the nature of the location in which speech occurs to determine how much and what kind of restrictions are constitutionally allowed. Government-owned forums fall within a range from “quintessential” or traditional public forums, which receive the strongest First Amendment protections and therefore have the most limits on the types of restrictions allowed, to limited public forums or nonpublic forums, which may have many restrictions, including those that are content or even viewpoint discriminatory. Outside of this analysis lies private spaces, where the First Amendment provides the strongest protections against government restrictions on speech, but generally allows private owners to place limits as they see fit. This is so because the First Amendment has been read to protect people from state action but not private action.

These differing levels of protection are largely based on historical understandings of the purposes of each of these spaces, how people communicate, and what the courts consider to be the ultimate goals of the First Amendment. Courts define “quintessential” or traditional public forums as consisting of three things: parks, streets, and sidewalks. That list is usually considered immutable, that is the government cannot decide that any of the three are no longer public forums. These three locations receive special First Amendment protection because of their historical importance as places where all people could come together and express their ideas to others; they served as the primary, egalitarian locations for public discourse. This notion of a bustling public square filled with speakers eager to present their differing ideas also fits within the concept of the marketplace of ideas, often cited as a rationale underpinning freedom of speech. If one of the goals of allowing freedom of speech is to ensure all ideas have a chance to be heard and subsequently debated, adopted, or rebuffed, there needs to be a place where all ideas have a chance not only to be spoken, but also to be heard. Finally, the courts’ recognition that the government must, at the very least, leave open these areas for free speech also reflects the fundamental idea that a right without a place to exercise it is no right at all.

Nonpublic forums, on the other hand, are places owned by the government but which serve functions other than as spaces for public expression. Jails are a good example. Greater speech restrictions are justified in these spaces in part because the government has a strong interest in ensuring they can be used for their primary functions. But restrictions are also justified, at least impliedly, based on the assumption that other forums exist where the speaker can communicate their ideas.

Finally, private spaces, such as individuals’ homes or private businesses, are highly protected by the First Amendment against government restrictions on speech; that is, the government cannot generally tell you how or in what way you can speak within your own home. But free speech in private spaces is far from wide open, because while the First Amendment protects you from government interference, it also protects private actors from being forced to allow others to use their property to disseminate their own message. In this space, the courts rely heavily on the distinction between state action and private action: private restrictions, unlike governmentally imposed ones, do not usually raise concerns because the First Amendment is said to protect against only government infringement of free speech rights. Although not all constitutional systems assume such a state action requirement, it has been firmly cemented in United States’ free speech jurisprudence.

However, the state versus private actor distinction has not always carried the day. For example, in Pruneyard Shopping Center v. Robins, the Supreme Court held that forcing the shopping center to allow such speech did not unreasonably intrude on their  First Amendment rights nor their rights as property owners. This case demonstrates how, in these private spaces, the logic of protections vs. allowable restrictions begins to break down: the rights of the public to speak and the rights of private owners not to be forced to speak begin to run into each other, and free speech rights begin to conflict with ownership and privacy rights.

Where do privately owned digital platforms fit in?

Leaving aside the difficulties of defining and implementing these categories, what do we make of them in a world where most of our communications, including on “core” First Amendment issues such as political debates, occur not in streets and parks, but on privately owned, digital platforms? Unlike some nonpublic forums and private spaces, digital platforms like Facebook and Twitter are specifically designed to allow their users to express themselves, and to do so in a way that can reach an unprecedentedly large number of people. Furthermore, with changes in methods of transportation, the idea of streets and sidewalks as areas for robust public discourse seems woefully outdated: with walking replaced by driving as the primary mode of transport, the amount of people one can reach by sitting on a sidewalk has diminished. Perhaps more importantly, regardless of the number of people one can potentially reach, these traditional public forums no longer are places where public discourse really occurs: hardly anyone is stopping to have substantive conversations with strangers on the street. But plenty of people do precisely this on social media, suggesting that the marketplace of ideas has moved from public squares to Facebook walls and Twitter feeds. If we really care about ensuring that people still have substantial access to at least some forums where they can exercise their free speech rights in a meaningful way, might these social media platforms be reasonably treated differently from other privately-owned spaces?

The growing ubiquity of these platforms and their distinct nature as private platforms for public discourse raise questions about where they fall within the established doctrine. Have they replaced streets and parks as the “quintessential” public forum? To what extent should their status as privately-owned corporations matter? These questions are important because they help to answer to other crucial questions: does the First Amendment protect users from the government regulating their speech? Does it protect users from the private owners regulating their speech? A few examples better illustrate the problems that can arise.

Can the government bar a person from these digital platforms? That question was raised in a suit against North Carolina challenging a law that prevented registered sex offenders from using social media sites, such as Facebook, that allow minors.

Or what about the sites themselves banning people, as recently happened to conservative radio host and conspiracy theorist Alex Jones? Several sites such as Twitter and YouTube pulled his content, citing violations of their terms of service prohibiting discriminatory or hateful conduct, views that the First Amendment would certainly protect in other contexts.

What rules apply if the government itself uses social media to communicate with constituents? In July of 2017, seven people who had been blocked by the official Donald Trump Twitter account filed suit in a federal district court. They alleged that the President’s Twitter account amounted to a digital public forum under the First Amendment, that they were blocked because they expressed views critical of the president, and that therefore the act of blocking them amounted to unconstitutional viewpoint discrimination.

What courts have done, and why it is unsatisfactory.

The answers to these questions have been at best unsatisfying, and seem to reveal a fundamental uncertainty in the minds of the courts about where social media fits into the current doctrine, or if it even fits in at all.

The first example cited above—the challenge to the North Carolina law prohibiting registered sex offenders from using social media platforms—was answered by the Supreme Court in Packingham v. North Carolina. The Court struck down the law as infringing on First Amendment rights, but the decision raised mores questions than it answered. Although there are dicta in Justice Kennedy’s majority opinion suggesting that social media sites are essentially public forums, the decision seemed to be largely based on the overbreadth of the law at issue. Indeed, Kennedy’s opinion itself is clear that North Carolina could enact a similar law if it was more specific. It was apparent that the issue of whether to equate Facebook to a public forum was on the minds of the justices, however, because Justice Alito’s concurrence focused explicitly on why it would be an error to call Facebook a public forum.

Despite the Court’s lack of clarity on the issue, Packingham has since been interpreted by lower courts as applying public forum rules to social media sites in certain circumstances where the government itself runs the accounts. The District Court decision in the Trump Twitter lawsuit, which held that blocking the plaintiffs amounted to a First Amendment violation, is a good example. While it is true that the Packingham holding can (and perhaps should) be narrowed to cases where government action is involved, it is nonetheless an acknowledgment of the importance of communication via social media that courts must address moving forward. Furthermore, Justice Alito’s concurrence should serve as a reminder that there are serious consequences for unthoughtful application of old doctrine to new problems.

As for private restrictions, lower courts are currently dealing with cases like Alex Jones’, addressing the problems of restrictions placed by the platforms themselves. The courts in these cases seem to be satisfied with the state versus private action distinction, and have upheld the right of social media sites to ban users. In doing so, they largely ignore or right off any arguments, similar those in Kennedy’s Packingham dicta, that social media has any similarities to public forums or that these platforms present any real problems.

Why modern free speech doctrine is insufficient to deal with social media

Current free speech analysis relies on historical assumptions about how and where we communicate that may no longer be true. The modern forum doctrine will need to deal with the difficultly of changing methods of communication by seriously considering the underlying purpose of free speech doctrine and perhaps revising keys free speech jurisprudence to avoid simultaneous over- and under-inclusion of free speech.

If social media platforms are public forums, then banning people like Alex Jones for hate speech would violate his First Amendment rights by limiting his access to the forum in a viewpoint discriminatory manner. Indeed, many of the prohibitions placed on social media users by terms of service requirements would violate First Amendment protections if brought fully under the public forum umbrella. On the other hand, treating social media as purely private spaces doesn’t easily resolve the problem either, because, as discussed above, there apparently are limits on the speech restrictions private owners can place on their own spaces, at least in some circumstances. Moreover, rote application of the private actor distinction without acknowledging the power these social media sites have is ill-conceived.

Perhaps recent court decisions are correct in their outcome, but I fear they lack a proper consideration of the argument that banning users on these platforms can be a real limitation on their ability to express their ideas (even if those ideas are abhorrent) in light of radical changes in how we communicate. This is not to suggest that no good arguments exist to counteract these claims. Maybe looking at social media sites as the new public squares is too simplistic, and ignores the fact that individuals can use the internet to communicate in other ways without using these platforms. And in light of the increased relevance of, and attention paid to, public demonstrations in streets and parks, perhaps the view that such traditional public forums are no longer relevant is wrong. Regardless of one’s stance on these arguments, we should agree that the courts need to address them directly, because it is disingenuous to simply ignore the fact that methods of communication have changed.

The courts need to return to the principles underlying free speech doctrine. In the case of social media, the right question seems to be more about value judgments than it is about legal doctrines: is it more important that we maintain truly open forums in keeping with the marketplace of ideas ideal, or prevent the spreading of hateful rhetoric? Is it more important that we allow corporations to curate their spaces in ways that ensure their continued functionality and popularity, or that we prevent private corporations from having powers over speech that we have deemed impermissible for the government to have? Formulaic application of the current state action and forum analysis doctrines may give practical answers, but I fear those answers will ultimately be at odds with much of the reasoning that led to the creation of those doctrines in the first place if not properly thought through. Courts are going to have to do the hard work of dealing with these competing value judgments. Acknowledging the realities of modern communication and adapting the doctrine accordingly is necessary not only to maintaining a coherent doctrine, but also a meaningful right to free speech.