Trump, Twitter and Digital Free Speech

Updated: Nov 3

By Paul S

There seems to be a mix of confusion and doubt about the role of free speech In social media platforms. This has been made centre stage by President Trump's legal objections to Twitters flagging of his own post as well as the stronger censorship policies that social media sites as a whole have been taking part in. Many people find this confusing because Free Speech is a constitutional guarantee but in the United States, social media is not regulated by the constitution. This is included in the State Action doctrine. That is to say that the Constitution is built to regulate the power of the government, not the people or the private business of said people. It is explained well in Shelley v. Kraemer, 334 U.S. 1, 13 (1948).

“It is State action of a particular character that is prohibited. Individual invasion of individual rights is not the subject-matter of the amendment. It has a deeper and broader scope. It nullifies and makes void all State legislation, and State action of every kind, which impairs the privileges and immunities of citizens of the United States, or which injures them in life, liberty or property without due process of law, or which denies to any of them the equal protection of the laws.” Civil Rights Cases, 109 U.S. 3, 11 (1883)

But while in a broad sense this is true there are specific cases that the Constitution begins to apply to private corporations as well. Such as in the case of Marsh v. Alabama, 326 U.S. 501 (1946). This case declared that in the case of a company owning a town, even though all the property was private, the constitution could apply since the area is freely accessible to and freely used by the public in general and the company in many ways is as powerful as a township.

“Whether a corporation or a municipality owns or possesses a town, the public, in either case, has an identical interest in the functioning of the community in such manner that the channels of communication remain free.” P. 326 U. S. 507.

This does leave room for a legitimate argument being made about the role of such powerful companies like Google, Twitter and Facebook actively censoring information the company dislikes. In section 1 of the executive order, this argument is made in part. It talks about how these companies are powerful enough to manipulate the information flow of the United States to a degree that threatens democracy and that online spaces are being policed in a biased way. Indeed arguments have been made by the likes of Timothy Garton Ash, that social media platforms are so crucial to modern-day communication and political life that censorious practices ought to be prevented lest those in control of a platform could come to control discourse. However, it is section 2 that the document gets into the main argument of why social media platforms can’t censor however they want.

”Sec. 2. Protections Against Online Censorship. (a) It is the policy of the United States to foster clear ground rules promoting free and open debate on the internet. Prominent among the ground rules governing that debate is the immunity from liability created by section 230(c) of the Communications Decency Act (section 230(c)). 47 U.S.C. 230(c).

It is the policy of the United States that the scope of that immunity should be clarified: the immunity should not extend beyond its text and purpose to provide protection for those who purport to provide users a forum for free and open speech, but in reality, use their power over a vital means of communication to engage in deceptive or pretextual actions stifling free and open debate by censoring certain viewpoints.”

This sounds confusing but it is actually rather simple. In Section 230 ISP and Websites are made immune to wrongdoings done on their own website, unlike a publisher. For example, CNN as a publisher got Sued by Nick Sandmann for defamation. Nick Sandmann would not be able to do this to a website like twitter because of section 230. This is because a website like Twitter is based on the principle that others are the ones expressing themselves on the site and that the site itself is not controlling the content, unlike a CNN who publishes its journalists’ articles. Censoring beyond legal necessity inches in the direction of becoming a publisher. Actions like fact-checking your own users take it to a level that at least to the view of President Trump is becoming a publisher and with it all the legal liability. His Executive order is his move to reinforces this legal distinction.

It's also important to note that this is not a partisan opinion. In fact, Joe Biden has taken an even more aggressive stance than Trump. The Democrats Presidential Nominee has called for Section 230 Protections to be revoked entirely claiming that social media sites will promote false information without reproductions. Beyond being an issue of party politics it is clear that social media platforms are facing a significant challenge in relation to free speech and if the government is to intervene it should be to widen the protection of free speech as far as possible.