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Wednesday
Aug012012

Cool Shirt, Bro

Imagine you and a friend are visiting the Mall of America. I don’t know why you’re there, exactly. Maybe you really love audio-animatronic gorillas and every other Rainforest Cafe between your house and Bloomington, Minnesota is closed for repairs. But the why isn’t important. You’re at the Mall of America with a friend and you spill Rainforest Juice all over your shirt. It’s a mess -- and you should really be more careful, butterfingers -- but here we are. You’re at the Mall of America and you need a new shirt.

Now imagine you walk into one of the Mall of America’s many fine clothing stores and find a shirt you like. You try it on, pay for it, and you walk out of the store with it to go play mini-golf or have a cereal adventure or do whatever they have over by that one food court now.

Your friend really likes your shirt. It’s a very cool shirt and your friend wants to let you know how cool it is, so your friend says, “Cool shirt, bro.”

Now let’s pretend that the Mall of America has a policy that it doesn’t allow people to say the phrase “Cool shirt, bro” in the mall. Anyone caught saying the phrase “Cool shirt, bro” will be immediately escorted off the property and dumped in the Ikea across the street or something. So that’s exactly what the security guard does. Paul Flart or whatever his real name is (it was actually pretty mean of you to call him that) proceeds to escort you and your friend off the mall property.

Now let’s imagine you protest this injustice and say, “Hey bro, what my friend said isn’t illegal! I didn’t even know about this anti-bro policy! We have free speech rights! What about the First Amendment!”

What this security guard (a noted scholar of retail jurisprudence) would likely tell you is something along the lines of “go fuck yourself” as he’s tossing you into a platter of Swedish meatballs. Because whether you like it or not, you don’t have First Amendment rights inside the Mall of America.

This is the point where we stop playing pretend, so I’ll say it again to be clear: you don’t have First Amendment rights in the Mall of America. That mall is considered private property and even though it’s open to the public during business hours and the mall was heavily subsidized in its construction by public funds, they can kick you out for saying or doing things they don’t like, no matter how stupid their rules may seem to you.

As I said, this isn’t entirely hypothetical. In a 1999 case before the Minnesota Supreme Court called State v. Wicklund, the court held that a protest staged by anti-fur demonstrators in a common area of the mall was not constitutionally protected speech. Neither the First Amendment nor the state of Minnesota’s own constitutional provisions guaranteeing free speech mattered inside the mall in 1996 when protesters began handing out flyers in an area adjacent to Macy’s. These peaceful protesters believed that fur was cruel and felt that they were within their rights to express themselves at the mall. The court said that after the mall asked them to leave they were trespassing.

I’m reminded of this Mall of America case anytime someone cries foul about censorship of Americans on social networking sites like Twitter or Facebook. Whether we like it or not, Twitter is private property.

On paper, Americans enjoy some of the most liberal free speech laws in the world. But once you’re on what the law deems private property your ability to express yourself is at the mercy of the property owners. If I go to the sidewalk outside of my neighborhood Trader Joe’s and protest about how terrible their store-brand cola is (it really is; sorry TJ) I’m protected by the First Amendment. But once I’m inside that store -- despite the fact that it’s open to the public -- the store has every right to kick me out.

Twitter can pretty much do whatever it likes within its own walls as long as it takes into account the potential for negative public opinion which may harm its profits. I imagine if Twitter decided tomorrow that it didn’t want to let Norwegian-Americans or Pastafarians use Twitter, it may run afoul of Title II of the 1964 Civil Rights Act which doesn’t allow discrimination “based on race, color, religion or national origin in hotels, motels, restaurants, theaters, and all other public accommodations engaged in interstate commerce.” But I’ve never heard of a social media discrimination case coming before an American court and it may be difficult to argue that this particular anti-discrimination law pertains to the digital realm.

But Twitter wouldn’t exclude people like that anyway. It’s bad business. And so is kicking out your customers over speech you don’t like. People will generally raise a ruckus when they think others are being treated unjustly.

But the point is that it doesn’t matter. Twitter makes the rules about speech on its service. Twitter is private property. Despite what some op-ed in the Wall Street Journal might argue (hilariously and inaccurately), the internet was indeed built by the government and didn’t become the largely privatized infrastructure we know today until the early 1990s.

Let me be very clear that I love Twitter. It’s been an important part of my life for almost 4 years now. But whatever I think of their policies, I can’t cry “First Amendment!” if they ever boot me off (which I suspect will happen any day now after a drunken night of terrible Space Cat jokes). Twitter isn’t a public service. We live with the realities of a private internet. It didn’t have to become private property, and I’m not even arguing that a private internet is a bad thing. I’m simply arguing that we need to realize what kind of rights we have and how we got to this point.

Twitter is a business and it’s a business that I want to see succeed. When they do something I dislike, I will absolutely discuss it -- I will even tweet my displeasure -- but I do so realizing that it’s like being upset at any other business. In the latter half of the 20th century you could argue that malls became the new town square -- a place where the community gathers and the average American might expect First Amendment protections. But that didn’t happen. It didn’t happen in malls and it didn’t happen on the internet.

But that’s still a cool shirt, bro.