Indentified! On the Way!!
Join Date: May 2012
I find this topic so fascinating. It really is new legal ground. It reminds of the court fights had in Washington State about signature gathering for petitions.
I knows it's not a 1:1 example, but I think some of the core concepts are similar.
Some stores in Washington State banned all forms of political activity on their properties. They didn't want to allow people to gather signatures for Initiatives, petitions, etc. One store would only allow the Salvation Army and Boy/Girl Scouts.
Courts ruled that stores could not do this. That depending on the structure of the location (ie parking lot, square, etc) even though privately owned, they are by and large, public areas where people gather for a variety of purposes and that their 1st Amendment Rights could not be violated. Malls were especially hit hard by this. Some courts said you couldn't "pick and chose" who gets to do what in a "public area" as long as the activity is legal.
In 1979 the California Supreme Court said that the free speech provisions of the California constitution — which are more expansive than those of the federal constitution — protect “reasonably exercised” speech and petitioning activities in privately owned shopping centers. Robins v. Pruneyard Shopping Center, 23 Cal. 3d 899, 910 (1979).
Subsequent decisions considering petitioning and related free speech rights at stand-alone retail establishments followed this reasoning and allowed the property owners to significantly restrict speech activities. See Costco Companies, Inc. v. Gallant, 96 Cal. App. 4th 740 (2002); Albertson’s, Inc. v. Young, 107 Cal. App. 4th 106 (2003); Van v. Target Corp., 155 Cal. App. 4th 1375 (2007).
What constitues a "public forum":
In order for a particular location to be considered a “quasi-public forum” where one has the right to solicit signatures, “it must be shown that the particular location is impressed with the character of a traditional public forum for purposes of free speech.” Id, Albertson’s, Inc. v. Young, 107 Cal. App. 4th 106, 122 (2003).
Again, I know it's not 1:1, but there is some precedent for this already. If youtube is deemed to be a public forum, then they have a serious problem on their hands, even in the US.
I think of YouTube as a global, digital public square where thoughts, ideas, etc are exchanged. If the courts see it in a similar way, there could be similar consequences for Google.