Where’s the digital street?

I just read “Policing Protests in the United States: 1960-1995,” a fascinating article by Clark McPhail, David Scheingruber, and John McCarthy on the development of policing tactics in the US. Highly recommended for anyone interested in the history of social movements in the US.

The article reference to something called public forum doctrine or public forum law. As McPhail describes it, public forum doctrine divides the physical world into different categories, categories which have implications for the different protest actions which may (or may not) take place there. McPhail identifies four broad categories, which he articulates as “the ‘traditional public forum,’ the ‘limited’ or ‘designated’ public forum,’ the ‘nonpublic forum,’ and private property.” The most permissive of these is the traditional public forum, streets, parks, sidewalks, town commons, and other areas traditionally recognized as being held in common for the public good. Limitations of speech and protest actions in these spaces, can, according to McPhail, be subject to only limited “time, place, and manner restrictions,” which cannot be based on the message of the protesters themselves. The next two categories on the continuum, the limited/designated public forum and the nonpublic forum which “includes governmental property that is not a public for ‘by tradition or designation’–such as a post office or jail,” McPhail identifies as being subject to the same criteria as the traditional public forum. That is, speech acts at these locations cannot be restricted based on the content of the speech, and such restrictions must be “reasonable.” The only property category that is not subject to such limits on restrictions is private property. The owners of private property are relatively free in the restrictions they can place on the speech of others when it takes place on their property.

Personal anecdote: Way back when, I worked as a user wrangler for a social networking site which shall go unnamed. Part of my job involved taking down content that violated our Terms of Service: content that was pornographic or offensive or harassed another user, etc. About 80% of the time, upon deleting the offending material, we would get an email from the poster, accusing us of violated their First Amendment rights by deleted their content. We hadn’t, because as a private company, we had the right to determine what speech content we wanted hosted on our privately owned servers. The First Amendment only extends to the actions of the government with regards to he abridgment of free speech. However much within our rights as the website to remove user content, essentially, at will, this crystallizes for me an issue that is coming more and more to the forefront of political action on the internet.

I would argue that there are no public fora on the internet. This is devastating when it comes to the development and use of digital protest tactics. While protest taking place in the various public fora ‘in real life’ have a foundation of history and legal doctrine to support their legitimacy as valid and protected political speech, actions that take place in the online sphere can only ever infringe on privately held property. The architecture of the network does not, as of yet, support spaces held in common. Moreover, I would argue that any attempt to establish dedicated public fora online for the legitimization of digital protest would do little more than create “free speech zones” online, distancing protest speech from the general online discourse.

A great thing about those traditional public fora mentioned above is that, IRL, public streets and roads go, if not everywhere, a hell of a lot of places. In most instances, street protests can take place in actual and rhetorical proximity to the target, be it corporate or governmental, of their speech while remaining in a physical location that protects their rights to free speech. The private-ownership model of the internet co-opts that possibility in the online space. Despite what Neal Stephenson foreshadowed, here is no “street” on the modern internet.

Right now, digital protest tactics, digital direct action in particular, are attacked as illegitimate because they inevitably tread on the private property of someone. This conflict does have a physical world parallel. The initial Occupy Wall Street camp was established at Zucotti Park, a “privately-held public space” which is ostensibly available for public use but still subject to the potential restrictions of private property. The free speech obligations/protections provided by such spaces are legally murky. As more of our public spaces are privatized, and as the private spaces of the internet become an important nexus of speech, the guarantees that protect our ability to engage in public protest become less certain. If digital protest tactics are going to be held as legitimate, and I believe they should be, then this is a fundamental issue that needs to be addressed.

x-posted from the Networked Social Movements class blog

  • Elizabethlbyrne

    This is fascinating. I would have thought that the internet itself is a public place because it gives the illusion of being this somewhat ambiguous communal meeting room where people can go to connect or learn skills, etc. It is easy to forget that all of it is being moderated by an unseen hand.

  • Palidin20

    I would argue that without public connection the internet would be fundamentally nonexistent without public occupation. The internet is a bridge between privately held interests of both citizen and corporate intellectual property, but the net itself is a result of the connection by user access. sort of a “if a tree falls in the woods does it make a sound” scenario. It is also mostly constructed out of contributions by people, be it in regard of a corporate or private interest. And I do recall that a certain political individual did proclaim that the internet access is a right. Subject to interpretation one might say going forward that rights serve citizens, not corporate interests. So despite some space specifically allocated for private interests, the general use is still a tool for the people for the sharing of ideas, regardless of content. A spoken idea in a public forum is protected by the amendment, and so it could be said that the internet is such a street.
    By the way, and Anonymous tweet pointed me to this article. It is well written and interesting. So ill take any bias or argument to the case open-minded, as long as the debater is the same.

  • oddletters

    My argument here is not that the internet is not publicly accessible or used by members of the public. My argument is that the is no part of the internet that is *legally* held to be a public or semi-public forum, which has drastic implications for the exercise of free speech online. The internet is not a public forum, it is a network of privately held resources, and the First Amendment does not restrict the rights of private individuals to restrict speech on their property. AmazonWebServices’ decision to kick Wikileaks off its servers in December 2010 was extremely troubling. What is wasn’t was illegal.

  • Palidin20

    True, but if an interest requests public users to comment or converse at a given site, despite the holding being private, the space provided is indeed public. Sure, the private interest could be removed from the space by the owner, but the right to speak openly in a given hosted area should be protected. If a private user wishes to not have certain speech on their site, its their agenda. But that’s a rule, not a law.