When Facebook and other social media sites announced in August 2018 that they would ban extremist speakers, such as conspiracy theorist Alex Jones, for violating their rules against hate speech, reactions were strong. People either criticized the ban by saying that such measures were only a drop in the bucket with regard to toxic and harmful speech online, or they despised Facebook for penalizing only right-wing speakers, censoring political opinions and joining some type of anti-conservative media conglomerate. This anecdote foremost begged the question: should someone like Alex Jones be excluded from Facebook? Moreover, may Facebook exclude users for publishing political opinions?
As social media platforms take up more and more space in our daily lives, enabling not only individual and mass communication but also offering payment and other services, there is still a need for a common understanding regarding the social and communicative space social media platforms create in cyberspace. This common understanding is needed on a global scale since this is the way most social media platforms operate. While in the social science realm a new digital sphere was proclaimed and social media platforms can be categorized as “personal publics,” there is still no such denomination in legal scholarship that is globally agreed upon for social media.
Public space can generally be defined as a free room between the state and society, a space for freedom. Generally, it is where individuals are protected by their fundamental rights while operating in the public sphere. However, terms like forum, space, and sphere may not be used as synonyms in this discussion. Under the First Amendment, the public forum doctrine mainly serves the purposes of democracy and truth and could be perpetuated in communication services that promote direct dialogue between the state and citizens. But where and by whom is the public forum guaranteed in cyberspace? The notion of the public space in cyberspace is central, and it constantly evolves as platforms become broader in their services. Hence, it needs to be examined more closely. When looking at social media platforms, we need to take into account how they moderate speech and subsequently, how they influence social processes. If representative democracies are built on the grounds of deliberation, it is essential to safeguard the room for public discourse to actually happen. Are constitutional concepts for the analog space transferable into the digital? Should private actors such as social media platforms be bound by freedom of speech without being considered state actors? Accordingly, do they create a new type of public forum?
The goal of this article is to provide answers to the questions mentioned. First, it will give an overview of the doctrinal concept of public forum doctrine in U.S. constitutional scholarship and its choke points related to cyberspace. Second, it will introduce the notion of “public” in German constitutional jurisprudence as a point of reference and the outcome of the comparative analysis. It will answer whether the public forum doctrine and the definition of “public” in Germany serve the same function in both systems, and, if so, how the doctrine needs to be taken into account by non-state actors. The focus will be on the consequences of this comparison for the digital sphere, such as for the intermediaries that globally connect users and provide platforms to share content. The fundamental question is to which extent platforms can factually be the hosts of public discourse and at the same time enforce their own rules on the basis of their contractual relationship with users, such as moderating content. Gaining more clarity about these questions would serve the purpose of possibly revising our current expectations towards platforms, which are based on their role in modern society rather than on legal obligations. It would also show that judicial review can serve as a flexible tool if the doctrine is open to changes in society. Finally, this article proposes an extension of the public forum doctrine that would be based on the findings of the first parts and could serve as potential guidance to the courts that are applying the public forum doctrine in practice.