Last week, President Trump used social media to encourage his supporters to storm the Capitol to attempt to maintain his power. In the wake of this violent insurrection against the certification of our election, the President and some of his supporters are claiming that the First Amendment rights of the President have been violated because of Twitter and Facebook’s decisions to ban the President from use of their platforms.
These claims come in a couple of forms. One form is the concern about the power that dominant social media platforms have and how they might use that power. Our Competition Policy Director, Charlotte Slaiman addresses that concern in her blog post, “Facebook and Twitter Made the Right Decision. Big Tech Is Still Too Powerful.” But the more fundamental question being raised is simple: Is this ban a violation of President Trump’s First Amendment rights? It’s essential that our country understands the answer to this question is no.
As many legal experts have noted, these social media companies and other digital platforms are private companies, not the government, and that distinction makes their content moderation decisions and actions free of any First Amendment concerns. While we as Americans have a constitutional freedom from having the government inhibit our speech (with some fairly clear limits on the extent of that freedom), this is not a license to use any platform to speak without restriction, nor is it a freedom from criticism or consequences for that speech. First Amendment protections do not, and should not, apply to both private companies and the government. Nor should the same protections limit legal obligations on private companies to protect the public.
Some are referring to this moderation of content as censorship. As we’ve noted before, not all content moderation is synonymous with censorship, and some moderation can even be important for preventing greater harms in our society. Last week’s attack on our Congress was also an attack on our constitutional system of government and the lives of those that make it function. Moderating this speech, from fact checking and labeling to shutting down profiles that persistently spread disinformation or foment violence against our institutions of government, is necessary. Online organizing to target elected officials and bring down our election process and institutions of government is a threat to the actual freedoms that those arguing First Amendment protection claim to hold dear. Without our Constitution and its institutions, these freedoms would not exist in our society, and so we must view calls of violent insurrection as beyond the scope of speech that any platform should carry.
The insurrection, and the lies that led to it, were organized and spread on social media, but not on Facebook or Twitter alone. Social media platforms big and small, as well as television and radio, spread dangerous misinformation about the validity of the election. And yet unlike traditional media, social media and other online digital platforms possess the power of interactive many-to-many communications. These platforms also generally strive to maximize engagement by users, without reference to whether they are being engaged in a positive or a negative way. Because of these differences, social media can amplify content in a viral manner that is hard to control or monitor.
Public Knowledge, along with other digital rights groups, has celebrated the democratizing power of the internet since our founding. It allows for diverse and independent voices to find an audience without asking for permission from gatekeepers. This free expression benefit of the internet should not only be celebrated, but protected as far as our society responsibly can. Our heterogeneous society benefits from being able to publish and distribute views outside the mainstream of thought online. With that power comes a parallel responsibility; in such a decentralized system of communication, that responsibility is diffused among the users of the internet. If we want to keep the uniquely American protections of the First Amendment, we must look to the stakeholders who benefit from this power to take ownership over this decentralized responsibility as well.
This process starts with the platforms who wield so much power over the spaces they have created for communication, organizing, and community building, but it doesn’t end there. In a system of government of, by, and for the people, the people must also take responsibility. The people’s responsibility begins with the calls for moderation that can set societal standards without government intervention, such as the work of the #StopHateForProfit Campaign. Further steps for responsibility by the people may lead to calls for new laws, even some that may challenge our current thinking around the First Amendment. It is the challenge of setting those standards and laws, counterbalanced by the First Amendment, that are an ongoing challenge to our government and our society. Public Knowledge is an ardent advocate for free expression, and this is a challenge we should all embrace, or risk losing our free society as a whole to the weaponization of disinformation and hate on our digital platforms.
Image credit: Nick Youngson