Written by Carinne Johnson and Andrea Angquist with reference to this article:
Back in January, Twitter resisted a court order to turn over personal data about users connected to WikiLeaks (including founder Julian Assange and accused leaker Pfc. Bradley Manning) and successfully challenged the accompanying gag order in court. The gag order was meant to prevent Twitter from notifying anyone, especially the intended targets, of the court order. Twitter’s decision to challenge the gag order set an important precedent for other tech companies in similar situations; Twitter’s victory in court allowed the company to alert its users to the court’s request for their records.
That same month, Twitter founder Biz Stone posted a blog entry entitled, “The Tweets Must Flow,” in response to the Egyptian government’s restriction of Internet access to curb political protests. In it, he pledged that Twitter’s “position on freedom of expression carries with it a mandate to protect our users’ right to speak freely and preserve their ability to contest having their private information revealed.”
Twitter’s role in controversial circumstances has become increasingly prominent. More recently, Twitter has been a vehicle for political unrest in London and San Francisco, used by protest (or “riot”) organizers to plan and execute mass protests that led to violence and illegal activities.
How does this relate to private property and the First Amendment?
Unlike the cases in last week’s readings, the government isn’t restricting freedom of speech in a designated public forum, but it is infringing on freedom of expression in a privately held forum. By requesting data on certain Twitter users, the government is creating a chilling effect on the users’ rights to privacy and free expression. Under the First Amendment, freedom of speech must be protected by the government in public forums, but private property is exempt. Ironically, the issue here isn’t private property owners restricting speech; rather, Twitter is defending freedom of expression on its private property from government intervention.
Additionally, freedom of expression is protected in the press, from government or other intervention. “The press” is defined as “every sort of publication which affords a vehicle of information and opinion.” (Lovell v. City of Griffin) Under this broad definition, would Twitter be considered part of the press? Is Twitter protected by the First Amendment in its function as part of the press?
How does this relate to our readings?
Twitter’s situation is the opposite of that of the US vs American Library Association, where the library, despite being a public institution, is not primarily or historically in the business of creating a public forum on the internet. Twitter is in the business of creating a public forum for internet users to express themselves, despite being a private company.
As we saw in the article “WikiLeaks, Amazon and the New Threat to Internet Speech,” Google resisted removing content from YouTube, while Amazon caved to pressure from Congress (or, rather, one lone congressman) and booted WikiLeaks from its servers. Similarly, companies like Paypal, Mastercard, and Visa banned donations to WikiLeaks. In the face of mounting political pressure, Twitter and YouTube chose to prioritize freedom of expression while Amazon bowed to political pressure, possibly to prevent legal action being taken against them. However, it must be noted that Twitter and YouTube, in defending their media content, were acting in the role of the press.
How might this issue be decided according to Lloyd v Tanner, Intel v Hamidi, and US v ALA?
While Twitter’s stand in favor of free speech is admirable, is it legal based on this week’s cases? Can Twitter refuse to turn over data under a court order from the government–or delay their response in order to notify their affected users? As Intel v Hamidi makes clear, the First Amendment protection for freedom of speech applies only to the public domain, and not to private companies. Twitter can promote freedom of expression as much as it likes, but it’s not legally required to. In addition, Twitter may be protected in terms of what they publish by freedom of the press, but even more traditional press is not protected from having to reveal names and personal data on their sources.
Further Questions:
Twitter’s resistance to releasing private data about its users or shutting down service during political unrest introduces new questions about the government’s demands and possible infringement on free speech.
Is the government rightfully asking for information related to illegal activity or is it repressing freedom of expression by making these requests? If the government urges a company to take action on their private property does that limit free speech? If it’s to obtain a record of speech (and speakers) and not to prohibit the speech in the first place, does that limit free speech in any way?
In the case of the London riots or BART protests, is the speech legal if it leads to illegal actions? How can governments (the U.S., the U.K.) justify support for Internet access in foreign protests (e.g., the “Arab Spring”) and restriction of it in domestic uprisings? Is Twitter responsible for the actions of users who organize through its service?
Should all speech on social networks be considered journalism and protected as such? Is the Internet as a whole a public forum or private property?