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Current Affairs

A Magazine of Politics and Culture

What Rights Do We Have On Social Media?

It’s absolutely good that Donald Trump was suspended. But unilateral censorship decisions by tech companies are not something we should ultimately celebrate.

Donald Trump has been permanently banned from Twitter, which cited posts by the president that the company said could encourage supporters to commit acts of violence at the upcoming inauguration. Facebook followed suit. Separately, both Apple and Google have removed Parler, a social media app favored by right-wingers, from their app stores, citing its lack of a moderation policy. (It had become the No. 1 free app in the Apple App Store.) Amazon then suspended its web hosting, bringing the whole app down. 

Supporters of the president insist that he has been unfairly censored by Big Tech. Right-wing pundit Dan Bongino said that, “This Big Tech/Big Government symbiont is now in open war with civil liberties and free speech in America.” Conservative Christian blogger Matt Walsh, whose latest book was reviewed in Current Affairs, said:

Big Tech has the power to utterly erase you from modern existence. Your whole life is tied up in things they control. The idea that they should be able to exercise this power with no legal restraint is madness and the “conservatives” who advanced that idea are fools and stooges.

Donald Trump Jr. , whose book has also been reviewed in Current Affairs, said that, “It’s a sad day when Big Tech has more power than Big Government.” 

Is it “censorship” for Twitter to remove the president, and for Apple and Google to remove Parler? Is it an attack on free speech rights?

The easiest response to offer is that no, rights are not implicated, because Facebook, Twitter, Apple, and Google are private companies, and they are not bound by the Constitution. You are “free to choose” whether you use these platforms, and if you do, you are governed by their terms of service. If they don’t like what you say and decide to shut your account, tough shit, that’s the free market for you. Go create your own platform if you want to exercise your free speech rights. The government has to respect your First Amendment rights, but a corporation of which you are a customer does not.

This was also the obvious response to Trump ally senator Josh Hawley, who complained after Simon & Schuster terminated his book contract—incidentally, for a book called The Tyranny of Big Techthat it was an “Orwellian” act by a “woke mob” and a “direct assault on the First Amendment.” The First Amendment has never previously been known to govern the publishing choices of Simon & Schuster—in fact, under existing jurisprudence it would be an interference with free speech if the First Amendment did tell the company that they were required to publish a senator’s book. 

But while this response is easy, it is too easy, because it ignores that “corporate censorship” can be a very real thing, especially when corporations are gigantic and powerful. If you are a strict libertarian, who believes that “freedom of contract” means a company does not owe you anything except what they promise you in the Terms & Conditions, then it’s true that complaining a corporation has violated your speech rights is self-contradictory: they can’t have violated them, because you don’t have free speech rights vis-a-vis a private entity. 

On the left, we recognize that the libertarian case is very weak, however, because it ignores the fact that in the real world, corporations often function as “private governments.” When a company is functionally a monopoly, and controls access to critical infrastructure, it has the kind of power that a government has. We can see this if we think about a literal public square. If the square is indeed public, then protests and demonstrations in it are governed by the First Amendment. But if the city government is taken over by a neoliberal administration, who are ideologically committed to the belief that private entities do a better job running public services than the government, the public square might be privatized and sold to a corporation. Once the square is owned by a company called, let’s say, City Systems & Solutions, Incorporated, decisions about who gets to say what pass to the CEO. 

Leftists point out that it’s absurd for our rights to change just because what is rightfully ours has been handed to an unaccountable institution, and it’s strange when your rights depend not on what kind of place you’re in but on who happens to own it. That is to say, my speech rights at a college or an airport or on a street depend entirely on whether it’s a private or public college, airport, or street. But this means that if a corporation ends up owning vast amounts of infrastructure, we have very few rights. The more privatized the world becomes, the more our basic civil liberties disappear. 

The big tech companies can be thought of like private corporations that own the roads or the square. I’ve written before about how because Amazon is a company that owns a public marketplace, it can manipulate the market in insidious ways. Facebook and Twitter are essentially the public square, and it’s extremely difficult to go and “make your own” platform. My colleague, Current Affairs in-house economist Rob Larson, has written an excellent book called Bit Tyrants: The Political Economy of Silicon Valley that talks about “network effects:” the way increased usership increases the value of a service, making it impossible for small players to compete and entrenching large ones. You may think that the conservative move to Parler shows that alternate platforms are possible, but we can see already that Parler itself depended on Apple, Google, and Amazon. 

We should not, then, accept that there are no free speech rights that apply to corporate decisions about who to allow on a platform. I say this partly out of self-interest: Current Affairs is hugely dependent on Facebook and Twitter traffic for its revenue, and if either of them decided to crack down on “fringe” political views or “fake news,” and stuck us in the bucket, we would have no recourse and might collapse overnight. It’s a very real threat, and so I do not want rich liberals (of the kind we regularly antagonize) to be the ones deciding whether our magazine gets to be heard. Amazon Web Services is absolutely ubiquitous to the point where it’s a core part of the net’s architecture, but at the moment, Jeff Bezos could decide one day that he’s going to pull the plug on anyone who spreads what he considers “falsehoods” about him (and which the rest of us would call “facts”). 

What we really need is democratic, publicly owned platforms. Facebook and Twitter should be publicly owned. They should be governed by the Wikipedia model with rules created by users themselves rather than the whims of some billionaire from an island in French Polynesia. And yes, the First Amendment should apply to them. 

But that doesn’t mean that all speech would be permitted. The First Amendment prohibits Congress from making laws abridging free speech, but this has never been held to be a blanket prohibition on any restriction of speech in any context. You can’t stand up in your class at a public university and start drowning the professor out by shouting nonsense syllables. What it does mean is that courts (which are, theoretically, democratically accountable) have a more active role in deciding the propriety of various restrictions, and that there is a presumption in favor of expansive speech rights. 

The argument that there should be broad free speech rights on social media is not an argument that Donald Trump should have his Twitter account intact. I don’t actually think he should. Reading Twitter’s justification for the decision, I think it is actually reasonable, and defensible even under a highly libertarian speech rights framework. 

Since the November election, Donald Trump has been insisting that Joe Biden did not actually win, and that the election was a giant fraud. This is a lie, but it’s worth realizing just how dangerous of a lie it is. Anyone who believes Trump believes that Biden is, essentially, a usurper, a criminal who is trying to destroy the Constitution and impose himself as an unelected ruler, while Trump—the democratically elected president—is being unlawfully deposed. If you believe this, you may well see the Republic as being under a fundamental threat. If you see yourself as a patriot, you may see it as your moral duty to take up arms and prevent Joe Biden from being inaugurated… by any means necessary.

Trump has declined to acknowledge that he is pushing a point of view that, if taken seriously, might encourage otherwise-normal people to take drastic and even violent measures. In fact, that is precisely what happened at the Capitol. Trump’s supporters, inflamed by his charges that their country’s elected government was about to be overthrown, swarmed past security to try to stop the Electoral College vote from being certified. In the process, someone smashed a police officer in the head with a fire extinguisher, killing him. (Four rioters also died, one shot by police and three others from somewhat murky medical emergencies.) 

Now, there are murmurings on social media that the Trump mob will come back for the inauguration, with online posts saying things like, “we will storm the government buildings, kill cops, kill security guards, kill federal employees and agents, and demand a recount.” Trump has declined to do much to try to calm his people down. He called the Capitol rioters patriots and seemed to justify their actions, saying it was what happened when elections were stolen. He said they should go home in peace, but didn’t comment on the fact that a police officer had been killed. And he continued to stoke their delusions about an illegitimate election. 

The posts that finally led Twitter to pull the plug involved Trump saying that his supporters “will not be disrespected or treated unfairly in any way, shape or form!!!” and commenting that, “To all of those who have asked, I will not be going to the Inauguration on January 20th.” Twitter says it reasoned that, in light of the Capitol violence, Trump’s continued tweets could increase the chances of a violent attack on the inauguration, which he was making into a safe target through his absence.

The prospect of violence at the inauguration is not theoretical. A Capitol police officer is dead because Trump’s supporters, whom he encouraged to feel enraged and aggrieved, stormed one of the most secure institutions in the country. We are lucky there was not more organization and planning behind the Capitol raid. 

Of course, Trump himself hasn’t explicitly called for violence. But it’s playing dumb to say that he doesn’t know what he’s doing by saying the Republic is under threat with those who raided the Capitol. (And appearing reluctant to condemn the violence, his first response being positive before the scale and unpopularity of the rioting became clear.) Twitter reasoned that if this continues, there might well be an attack on Joe Biden at his inauguration, and that the need to prevent this takes precedence over Trump’s right to be heard.

We get into very difficult territory here, because “security” justifications, once invoked, can be used to rationalize almost any kind of censorship. Already, in the wake of the Capitol raid, there is talk among lawmakers and officials of passing new domestic terrorism laws. This is a horrible idea, though a familiar one; post-9/11 madness also led to the drastic expansion of government police power, and it was a mistake. Free speech may not extend to speech that incites imminent violence, but it’s also the case that once you start drawing more and more tenuous connections between speech today and predicted violence tomorrow, lots of speech that ought to be protected may no longer be. “Slippery slopes” are actually quite a real phenomenon; once you think speech that causes violence should be banned, what about speech that causes harm that is like violence in its effects? And so on and so forth. 

But the risk of slipping down an unfortunate slope does not mean that “security” justifications always fail. Instead, it means that we have to be extremely careful and apply censorship as little as possible while preventing outright violent acts from being caused. There will always be hard cases and wrong calls. If the incoming president was violently attacked, however, as a direct consequence of a social media discourse encouraging that violence, it would not have been worth preserving the right to stoke violence. (Although, yes, it is a hard job assessing what violence is “caused” by what speech, and whether someone has a “responsibility” for what some deranged person does in their name. It does not surprise me that the ACLU seems to find the Trump Twitter ban a bit of a difficult case to weigh in on, because this is indeed one of those situations where security justifications are genuine and conflict with civil liberties—though generally I think the ACLU should be “unreasonable” in their radical commitment to civil liberties, because that’s their role.)

Personally I do not think Trump should be banned forever, but only until the heightened threat of imminent violence by his supporters subsides. Certainly any reinstatement would need to be after the inauguration, and he would need to promise to abide by the Terms of Service in future and not keep saying stuff that might get his successor killed. Parler needs to agree to keep people from making direct threats of violence. Ultimately, however, I do not want corporate bigwigs being the ones making these decisions. Social media should belong to all, and the rules should be transparent. We can accept the suspension of Trump from Twitter (and even find it hilarious, which it is) while still demanding public control of our platforms.

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