Twitter is now a big part of our commons, like shopping malls B.C. (before COVID); so why not test the well-worn argument that private ownership allows suppression of free speech? In 1980, SCOTUS ruled in favor of some high school students who had been leafleting inside a mall in Campbell, California, until security guards told them to leave, because they hadn’t sought permission from the owners.
In Pruneyard v. Robins, the court unanimously upheld the ruling of California’s Supreme Court: that, under California’s constitution, citizens may exercise their free speech rights in private shopping centers open to the public. It was a controversial decision, which moved Colorado, Massachusetts and New Jersey, as well as Puerto Rico, to follow California’s lead, while 13 other states refused to do so, as did the UK.
With Twitter, Facebook, Instagram and YouTube (i.e., Google) all vigorously policing what we say, and blocking, or deleting, dissident opinion, and inconvenient data and/or news, as openly, and sweepingly, as the CCP controls the Internet in China, the time has come to study Pruneyard for its relevance to cyber-space, as some legal minds have done: “In this new world,” writes James D. Barger in SciTech Lawyer, “long-established property law and state constitutions may provide the best protection for a user’s right to express himself in sometimes controversial ways.”
Could that argument get any legal/constitutional traction? If so, let’s see how we might make that happen. If not, let’s think of other ways to make the case that all this arbitrary censorship is unacceptable; for this vast crackdown is an existential danger to our nominal democracy, our freedom and our very lives—so something must be done about it, now.