Elon Musk is Correct—Big Tech Platforms Are Digital Public Squares | Opinion

Elon Musk's announced intent to "buy" Twitter has provoked some mixed reactions. Some celebrate it as an opportunity to reshape the social media site into a more politically balanced platform. Others take the opposite view, seeing it as Elon trying to turn democracy on its head. But both perspectives seem to miss the billionaire's point—Big Tech companies, like Twitter or Facebook, are now, as Musk puts it, our "de facto town square," and they have not been living up to their obligations. Unfortunately, he's right on both counts.

Public squares play a very special role in our society. They are a cradle for free expression where we, the public, can express approval or dissent, campaign or simply convene with friends with little interference. On Big Tech platforms these features are frequently missing, given the companies' penchant to "moderate" political content they don't like. They send more conservative campaign emails to spam folders than liberal ones, remove conservative-leaning apps from app stores, shut down the New York Post's account for reporting on Hunter Biden and more.

Like Elon, the U.S. Supreme Court understands tech platforms as providers of public squares. In fact, the Court declared that some Big Tech services—specifically social networking sites—were the "modern public square" in the 2017 case Packingham v. North Carolina. In the Packingham case, the Court found unconstitutional a North Carolina law that prohibited sex offenders from subscribing to social media sites. The Court reasoned that such state prohibitions would prevent offenders "from engaging in the legitimate exercise of First Amendment rights," specifically "speaking and listening in the modern public square." The Court, in effect, declared Big Tech platforms to be as integral to our First Amendment rights as any government-run public square.

The Court's rationale is similar to the one Congress used when providing Big Tech legal protection under Section 230 of the Communications Decency Act. The law allows Big Tech to police people who unreasonably disrupt their services or act in a way that adversely affects the public's experience or expression, such as posting pornography or openly threatening other users, without the risk of civil liability (e.g., most breach of contract claims or defamation suits).

But—you might be asking—aren't Big Tech firms private companies? How can a privately owned space act as a public forum?

Although most public squares are owned and operated by the government, not all are. In New York City, there's a garden on Fifth Avenue that is privately owned, but completely open to the public. Why is it open to the public? It's certainly not out of the kindness of the property owner's heart. Rather, the government made inclusion of the park a condition of the private landowner's permission to exceed the local height restriction. Oh...did I mentioned that the owner is former President Donald Trump, and the garden is located in Trump Tower? Trump's garden is an example of a privately owned "public square." It is only one of many.

Elon Musk
Elon Musk gestures as he speaks during a press conference at SpaceX's Starbase facility near Boca Chica Village in South Texas on February 10, 2022. - Billionaire entrepreneur Elon Musk delivered an eagerly-awaited update on SpaceX's Starship, a prototype rocket the company is developing for crewed interplanetary exploration. JIM WATSON / AFP/Getty Images

Trump's garden shows that government ownership is not a prerequisite for treating a venue, or in our case a digital platform, as a public square. The government can also confer some benefit to a private owner whose property is used as a public good. In the digital context, such an exchange could manifest as a tech platform facilitating a venue for freedom of expression or speech in exchange for legal immunity to host the content.

The key difference between Big Tech's platforms and Trump's garden is that Donald Trump cannot kick any person out of his garden arbitrarily or based on his personal beliefs with legal immunity.

Social media platforms, by contrast, enjoy a windfall because of courts' broad interpretation of Section 230, which allows them to kick anyone out of their public squares with impunity. Justice Clarence Thomas lamented in Malwarebytes, Inc. v. Enigma Software Group that courts have expanded Section 230 immunities far beyond Congress's intent. Big Tech feels empowered to moderate content based on its particular political views.

In short, the courts give Big Tech all the benefits of a public square, but absolve it of any responsibility to the public for that benefit.

Congress, not Elon Musk, needs to step in to fix the courts' mess by bringing First Amendment-like remedies to the digital public squares. It should consider an approach like what Senator Roger Wicker (R-Miss.) suggested in his PRO SPEECH Act, which would tether Big Tech's Section 230 immunity to a public accommodation obligation. Such an obligation would prohibit large tech platforms from denying would-be users access to its public square solely based on race, gender, religion or political affiliation. If a company violates that obligation, then it loses its legal immunity. Given that the First Amendment does not guarantee a company legal immunity to host speech, such legislation will almost certainly pass constitutional muster.

With these protections in place, we will undoubtedly see a more equitable marketplace of ideas on these digital public squares.

Joel Thayer focuses his law practice on telecommunications, regulatory and transactional matters, as well as privacy and cybersecurity issues. He has represented clients in front of myriad legal and regulatory fora, including the Federal Communications Commission, Federal Trade Commission and federal administrative agencies.

The views expressed in this article are the writer's own.