The McPhail, et al, article made 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 unientified. 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.