Speaking before Senators and Representatives today, Twitter CEO Jack Dorsey repeatedly referred to his platform as a “public square” while simultaneously arguing that he has the right to remove lawful content protected by the First Amendment from it.
Dorsey testified at two congressional committees today; the Senate Intelligence Committee and the House Energy and Commerce committee. At both sessions, Dorsey continually referred to Twitter as either a “public square” or a “digital public square.”
The Twitter CEO’s wording is significant — according to U.S. law, speech and expression in the public square are protected by the First Amendment, regardless of whether the public squares are under private ownership.
The precedent was set in Marsh v. Alabama, a 1946 supreme court ruling which found that a Jehovah’s Witness who attempted to distribute religious materials in a company town that was entirely owned by the Gulf Shipbuilding Co. could not be arrested on the grounds that she was trespassing on private property. The court concluded that since the company owned the entire town (including the sidewalks), it constituted a public square under private ownership and that the Jehovah’s Witness’ right to free speech in the public square took priority over the company’s right to remove trespassers.
If Twitter is a public square under private ownership, it is obliged to protect the First Amendment rights of its users. Dorsey’s entire project of controlling “conversational health” and banning constitutionally protected speech on his platform would be a violation of the First Amendment. Dorsey would have no option but to relinquish the power of blocking and filtering users for lawful speech, and instead return that power to users via optional filters.