united-states
How are social networks regarded in the United States (public vs. private space)?
<p>Several years ago the Supreme Court in Romania ruled that social networks (Facebook is the most prevalent in Romania) are public space (<a href="https://www.liberties.eu/en/news/romania-facebook-profiles-are-public-space/2494" rel="nofollow noreferrer">source</a>).</p>

<blockquote>
  <p>If you live in Romania, your <strong>Facebook page is now considered public
  space</strong>. The recent ruling by Romania's supreme court is the first of
  its kind in Romania, where there are over 7 million Facebook users.</p>
  
  <p>Romania's High Court of Cassation and Justice (HCCJ) has recently
  affirmed a lower court's decision that personal Facebook pages are
  considered public space, even if they are accessible to only a small
  group of friends.</p>
  
  <p>This decision has now been affirmed by the HCCJ on appeal, meaning the
  determination that <strong>Facebook pages are public space is now the legal
  reality</strong> in Romania.</p>
</blockquote>

<p>Reducing the scope to political life, from a layman's perspective treating social networks as public space seems natural, as one could easily see that most news mix information from live/recorded interviews with information from public posts of political figures on Facebook.</p>

<p>However, according to <a href="https://www.newstatesman.com/internet/2014/06/social-media-has-been-privatised-why-do-we-treat-it-public-space" rel="nofollow noreferrer">this article</a> treating social networks as public space is not trivial because owners are private companies which can be pressured by some governments to partially censor some content:</p>

<blockquote>
  <p>Social media has, in many ways, taken on the role of the public
  sphere, [...] the online social spaces standing in for the public sphere are private ones, owned by billionaires and shareholders. Nevertheless, we treat
  them as public spaces.</p>
  
  <p>The trouble with private companies controlling our speech is that they
  are subject not only to shareholders, but also to governments. [...] these
  companies often face an unfortunate choice: to avoid being blocked by
  a government’s censorship apparatus, they must sometimes agree to take
  down content, at least in a given country.</p>
</blockquote>

<p>I have looked for a source aggregating how western countries treat social networks, but could not find one. To narrow down question scope, I am interested in how it works in US. </p>

<p><strong>Question:</strong> how are social networks treated in the United States from the public vs. private space perspective?</p>

<p>Public/private space is an unclear term of art which is not relevant to US law. There are four relevant categories created by the interaction between the private / government distinction, and "open to the public" vs. "not open to the public" (for example: government parks, military bases, private shopping malls, your own home). The First Amendment says</p>

<blockquote>
  <p>Congress shall make no law respecting an establishment of religion, or
  prohibiting the free exercise thereof; or abridging the freedom of
  speech, or of the press; or the right of the people peaceably to
  assemble, and to petition the Government for a redress of grievances.</p>
</blockquote>

<p>Obviously the government cannot prohibit you from criticizing or praising the president, per se, and as applied to things in the government park category, that means that you can give a soapbox speech on whatever topic you want in the park. On the other hand, the First Amendment does not prohibit the government from protecting individual property rights, which means that you cannot invade my home and use it as a venue for a protest, without my permission: that is, the First Amendment does not nullify trespassing laws and constitutional property rights. The courts have long held that the government can designate properties such as military bases as closed areas where demonstrations can be banned, even (<a href="https://www.supremecourt.gov/opinions/13pdf/12-1038_6jgm.pdf" rel="nofollow noreferrer">US v. Apel</a>) when an easement grants access, so the right to protest on government land is not absolute. </p>

<p>One relevant decision about so-called public spaces on private property and the First Amendment is <a href="https://www.law.cornell.edu/supremecourt/text/407/551/" rel="nofollow noreferrer">Lloyd v. Tanner</a> 407 U.S. 551. That court held that</p>

<blockquote>
  <p>There has been no dedication of petitioner's privately owned and
  operated shopping center to public use so as to entitle respondents to
  exercise First Amendment rights therein that are unrelated to the
  center's operations, and petitioner's property did not lose its
  private character and its right to protection under the Fourteenth
  Amendment merely because the public is generally invited to use it for
  the purpose of doing business with petitioner's tenants. The facts in
  this case are significantly different from those in Marsh, supra,
  which involved a company town with "all the attributes" of a
  municipality, and Logan Valley, supra, which involved labor picketing
  designed to convey a message to patrons of a particular store, so
  located in the center of a large private enclave as to preclude other
  reasonable access to store patrons. Under the circumstances present in
  this case, where the handbilling was unrelated to any activity within
  the center and where respondents had adequate alternative means of
  communication, the courts below erred in holding those decisions
  controlling.</p>
</blockquote>

<p>Subsequently and similarly we find <a href="https://www.law.cornell.edu/supremecourt/text/424/507" rel="nofollow noreferrer">Hudgens v. NLRB</a>, 424 U.S. 507, a shopping mall protest case, where it was ruled that the First Amendment does not negate private property rights. The court observed that</p>

<blockquote>
  <p>It is, of course, a commonplace that the constitutional guarantee of
  free speech is a guarantee only against abridgment by government,
  federal or state...Thus, while statutory or common law may in some
  situations extend protection or provide redress against a private
  corporation or person who seeks to abridge the free expression of
  others, no such protection or redress is provided by the Constitution
  itself.</p>
</blockquote>

<p>The court did refer to prior <a href="https://www.law.cornell.edu/supremecourt/text/326/501/" rel="nofollow noreferrer">Marsh v. Alabama</a> (First Amendment argument upheld regarding speech on privatly owned property), 326 U.S. 501, where the location in question was a "company town", indistinguishable from a regular town except that the property was owned by a private corporation rather than a municipal corporation. Citing <a href="https://www.law.cornell.edu/supremecourt/text/391/308/" rel="nofollow noreferrer">Food v. Logan</a>, 391 U.S. 308, the Hudgens court observed that</p>

<blockquote>
  <p>streets, sidewalks, parks, and other similar public places are so
  historically associated with the exercise of First Amendment rights
  that access to them for the purpose of exercising such rights cannot
  constitutionally be denied broadly and absolutely.</p>
</blockquote>

<p>The question which the court then raised was</p>

<blockquote>
  <p>under what circumstances can private property be treated as though it
  were public? The answer that Marsh gives is when that property has
  taken on all the attributes of a town, i.e., "residential buildings,
  streets, a system of sewers, a sewage disposal plant and a ‘business
  block' on which business places are situated."</p>
</blockquote>

<p>and there is</p>

<blockquote>
  <p>nothing in Marsh which indicates that, if one of these features is
  present, e.g., a business district, this is sufficient for the Court
  to confiscate a part of an owner's private property and give its use
  to people who want to picket on it.</p>
</blockquote>

<p>The court reminds us that </p>

<blockquote>
  <p>it must be remembered that the First and Fourteenth Amendments
  safeguard the rights of free speech and assembly by limitations on
  state action, not on action by the owner of private property used
  nondiscriminatorily for private purposes only.</p>
</blockquote>

<p>Whereas,</p>

<blockquote>
  <p>In the instant case, there is no comparable assumption or exercise of
  municipal functions or power.</p>
</blockquote>

<p>There is no sense in which social media, shopping malls, or news businesses constitute governments: the notion of "public space" is not what's relevant, rather, "government agency" is. "Unfettered access" requires the combination of "is or functions as a government", and "is public (not closed)".</p>

<p>As far as social media (a kind of private property) are concerned, there are recent cases involving what government officials may restrict w.r.t. social media, in particular involving accounts by government officials. <a href="https://cases.justia.com/federal/district-courts/virginia/vaedce/1:2016cv00932/348006/132/0.pdf?ts=1501081939" rel="nofollow noreferrer">Davison v. Loudon County</a>, where a government official banned an individual from access to the official's Facebook page for 12 hours. One of the essential findings of that (lower) court is that the official operated "under color of state law" in maintaining the account, and as such, the banning was a violation of the First Amendment.</p>

<p>There is also a First Amendment case <a href="https://assets.documentcloud.org/documents/3892179/2017-07-11-Knight-Institute-Trump-Twitter.pdf" rel="nofollow noreferrer">Knight First Amendment v. Trump</a> in the works. The complain alleges that Trump's "account is a public forum under the First Amendment" – we'll see where that goes. However, these cases involve access-limitations by government officials regarding the official's primary means of disseminating policy.</p>

<p>If the First Amendment said (or was interpreted to mean) that anybody has unfettered access to a "public space" and social media constitutes a "public space", then Facebook et. al. could not have terms of service, and all accounts would have to be accessible to everyone – banning simply could not exist. The First Amendment right to freedom of speech is not content-limited to e.g. "matters of public concern" or "things about the government" – you are allowed to protest the actions of a private individual on public land.</p>
