Following my post Condemning Censorship, Even of Werewolves, a great many people took me for task for trying to make a principled distinction between public space and private space, and tangled that up with a lot of confusion about the distinction between “public” and “state-owned” space. Here I’ll attempt to shed some light on the matter. In doing so, I will not actually be retailing a private theory of mine, but touching on principles with a long history in ethics and Anglo-American common law.
Suppose I privately own a road which is the only access to your property. Can I bar you from using it? My principles say no. Ancient common law says no. Current U.S. law says no. I may charge a fee, but it must be reasonable in light of my maintainance costs and local market conditions, and it must be waived in emergencies.
A lot of people interpret this doctrine as an assertion of social ownership of the roads, but there is a different ethical basis for it shared by libertarians and Anglo-American common law. That is: the law should not be interpreted to further privilege power relationships that are already asymmetrical. Where they conflict, we should be more scrupulous about the rights of weak parties than of strong ones.
If you own a private club, should you be permiitted to bar blacks or women? Current U.S. law says no. Ancient common law is silent. I say, yes, you should be so permitted, even though I consider such discrimination odious. The difference is, that kind of law intrudes into your personal choices in ways that allowing someone to use your road does not.
Can you bar individuals from your residence because they are black or female? Yes. Current U.S. law, ancient common law, and I all agree that a homeowner has a right to control personal space that trumps other claims.
Now let’s go to cyberspace. How do these principles apply to defining public space there? In particular, how can we distinguish in a principled way between blogs, public forums, and project-hosting sites such as SourceForge?
The right decision procedure here is to think about what the power relationships are, and which choices avoid infringing personal space while also avoiding placing further burdens on weak parties. Matters are simplified by the absence of state ownership, so no confusion between public space and government-controlled space is at issue.
A blog is like a private home controlled by a single owner. Treating it as private space imposes no undue burden on guests, because their investment in the content is minimal. They may of course, leave comments, but the comments have value primarily as a reflection of or comment on the owner’s posts. Little or no harm is associated with being banned. In this case it is easy to say “private space”.
A forum is like a club. Some are private and specialized, others more open. The value of the posts in a forum is a joint creation of the members; no individual member normally contributes more than a small fraction. Harm from being banned varies from none to significant, depending on the value of the forum social network. I could do a more extended analysis of how different forums with different traditions imply different rights analyses, but I’m going to pass over that to get to what I think is the interesting case. I’ll say as a placeholder that I think the public-or-private answer depends contingently on the history and social norms of the forum community and can go either way.
A project-hosting or forge site is very different from either case. The most important difference is that the site acts, in effect, as a gatekeeper for access to the user’s own property – the source-code repositories and other project data. The user’s investment is high, and harn from being banned can be severe – in the worst case, even a diligent user may lose work that is backed up nowhere else (e.g. commits since the last backup, project mailing lists, etc.). The analogy of a private road controlling access to a weaker party’s property is strong, and the same remedy applies, which is to restrict the putative owners from taking actions which further burden the weaker party.
If I were running a hosting site like SourceForge, I would make sure that my ban procedure included burning copies of the user’s content onto CD-ROMs and shipping them to his/her contact address. Otherwise, I think I could be sued successfully for destroying property that is not mine. My wife the attorney agrees this would be fair and prudent.
The social expectations around a hosting site also matter. These are, normally, chartered to a particular community. SourceForge’s, for example, is held forth as being open to all projects with licenses conforming to the Open Source definition; Alioth is for Debian developers; Savannah primarily for FSF and FSF-approved projects. Such representations have ethical weight, and courts do not ignore them when a dispute goes to law. If I were running any of these sites, I would consider violation of the traditional norms of my user community to be not just a public-image problem but a multiplier to my risks in the event of a lawsuit.
There are also relevant precedents with respect to community bulletin boards hung in supermarkets, which I know about because I was an individial amicus in the Supreme Court’s hearing on the Communications Decency Act back in 1996. If you are a supermarket and hold forth the bulletin board as being for community use, you are essentially barred from censoring in a content-sensitive way except as required by laws relating to obscenity, felonious threats, and other criminal speech.
I trust it is now clear why I have asserted that forge sites are not private space within the meaning the term has in common law and reasoning about speech rights. This does not mean the owners can’t shut them down, but it does mean that while they are running, the rules of public space – or, perhaps more specifically, the public thoroughfare — apply.