You present two different topics here. The first is "What is the dividing line between platform and speaker/publisher?" Let's say a college puts up a bunch of traditional cork bulletins boards around campus. They do so because they want to keep all solicitations confined to specific locations. Anything tacked to the board is fine. Anything tacked elsewhere is taken down. Simple as that. Say someone then thumbtacks to a board clearly "inappropriate" pictures or data on someone. Can you sue the school for owning the bulletin board? No. That should be obvious.
OK, so let's now suppose the school affixes that words "Ride Board" to a given board with a short note that says the board is only for people offering or needing rides; all other topics will be removed. Periodically, the school then removes "for sale" solicitations, help wanted offers, and so on. Are these editorial decisions? Yes. But does that make the school now a publisher? No. The reason is, they are just enforcing their "terms of use", i.e. making decisions based on the type of content, not the content itself.
Where things get murky is in what the terms of use of a board actually is. Say the terms of use prohibit posting stuff that disparages a student at the school. Or perhaps the school prohibits any messages that are deemed political in nature. If it were easy to define what was personal or political, nobody could argue the school was not entitled to enforce these rules as a non-publisher. The problem is that these terms are not easy to define. So far, the courts have given the benefit of the doubt to the bulletin board owners that they are simply enforcing their terms of use. OK, so you show examples of stuff they removed vs stuff they did not that allegedly show unequal enforcement, hence bias, hence the board owners must indeed be considered publishers. Perhaps. Or perhaps these were oversights, honest mistakes, or done by people with differing opinions of nebulous terms such as "political" and "personal".
The bottom line here is that the First Amendment is very broad. You have to show extraordinary circumstances of clear bias to establish that someone is indeed a publisher.
The Nunes case falls into a very generic and longstanding legal understanding that parody and hyperbole are protected forms of free speech. Recall the very first cases were of people being sued for creating websites with the word "sucks" attached to the domain name. The courts held that since no reasonable person would confuse a site with "sucks" affixed to it with the original site, buyer beware. Per the attorney for the Twitter account called Devin Nunes' Cow:
“No reasonable person would believe that Devin Nunes’ cow actually has a Twitter account, or that the hyperbole, satire and cow-related jokes it posts are serious facts,” reads the filing in Virginia’s Henrico County Circuit Court. “It is self-evident that cows are domesticated livestock animals and do not have the intelligence, language, or opposable digits needed to operate a Twitter account. sacbee.com
- Jeff |
