First of all, corporations enjoy First Amendment protections, among other constitutional protections. Although some of my friends decry that proposition, given the Supreme Court’s current composition, that is not going to change during my lifetime. And the First Amendment protects the right to refuse to associate with speech one does not like. There is only so much that legislation could do to prevent companies like Twitter from controlling the speech that they allow.
Second, withdrawing or adapting the section 230 liability shield is one way to impose limits on platform’s adoption or implementation of their content control policies, perhaps, but there is no reason to think that any withdrawal that is likely to pass, and that would be constitutional (because it does not involve viewpoint discrimination), would be better than the current state of affairs. Moreover, that would be a very blunt instrument that could not easily be calibrated. I strongly support the principles of section 230, which allow online platforms to decide what speech they will allow on their platforms by protecting them against liability for speech that they carry (with very limited exceptions). They are not common carriers, like USPS or the PSTN’s. (Thus, Apple and Google could cabin Parler by threatening to deny it access to the App and Play Stores, and Amazon could deny Parler web hosting services, all on the ground that Parler failed to successfully enforce rules against advocacy of political violence. I find it mind-boggling that people who call themselves “conservative” are railing about the plug being pulled on a platform for the stated reason that it allegedly fails to block calls for political violence). And they are not government bodies, which are (largely) forbidden to engage in content discrimination, and especially viewpoint discrimination, in allowing or suppressing speech. Section 230, both as a legal principle but also as a social principle, not only allows platforms to tolerate speech that I find abhorrent, but also allows them to exclude speech that I detest, or speech that I adore.
Third, the drafters of section 230 recognized that platforms would have content policies, and considered it desirable for them to have content policies. Indeed, you can’t run a platform without content policies. Anybody who has ever tried to moderate a discussion group will fully appreciate these considerations. And content moderation is HARD. The periodic “COMO” sessions addressing “Content Moderation at Scale” explored the difficulties through a series of hypotheticals. What became clear is that people of good will, even those with relatively common policy perspectives, trying to apply even the best of content policies, will get it wrong sometimes – and that is even if they have lots of time to evaluate a single statement.
It is inevitable that different platforms will take different stances about what speech they will tolerate and what speech they will exclude—in part because of the audiences at which they aim.
The Reasons for Banning Trump
Turning to Twitter, and to Trump in particular: Twitter has for many years had a variety of rules about speech that may and may not be posted to Twitter, which they call their trust and safety guidelines. This includes a ban on speech glorifying or promoting violence; it also includes a ban on false statements about the election. (Many years ago I was asked if I would be willing to be on their outside trust and safety council; I decided it would not be appropriate for me to do that for a number of reasons).
I have never been a fan of social media companies trying to assess the truth or falsity of factual statements, or the hurtfulness of opinions and rhetoric deployed there. The assumption of such a role is likely to lead to the suppression of voices that criticize the rich and powerful (that is, those who can afford to hire lawyers to file baseless lawsuits, or who can deploy government power to attack their critics), or on abusive law enforcement officials themselves. But Trump’s misuse of Twitter and other platforms to foment a violent attack on democratic elections has taken matters to another level.
In the weeks leading up to the attack by a mob of Trump supporters on the Congress, Trump used both tweets and other public communications to try to steal the election from his victorious opponents. At the same time, he tried to use his connections with officials in several states where he had lost to induce them to overturn his losses in those states. Then, with his campaign of frivolous litigation and threats to state election officials having come to naught, he and his mouthpieces escalated heir attack on democratic elections, encouraging his supporters to engage in a physical confrontation with members of Congress in an apparent effort to delay the certification of his electoral college loss. There is every reason to believe that many of the supporters who tried to storm the Capitol believed that they were acting at Trump’s behest, and some analyses suggest that Trump’s language was carefully calculated to encourage the supporters to use violence. My reading of the language leads me to conclude that the calls for violence were insufficiently expressed to make them indictable under the standards set forth in Brandenburg v. Ohio, 395 U.S. 444 (1969), just as my view is that his threats to Georgia state election officials, on a recording, fell short of criminal threats or incitement.
Assuming, as I do, Trump cannot be held legally responsible for inciting the riot, he was still morally responsible for it. And even assuming, as I do, that he cannot be convicted for these communications, that doesn’t mean that a private company, unbound by First Amendment standards, would be unjustified in deeming them a gross violation of its policies against advocating or glorifying violence, and hence treating them as a proper basis for denying him a platform. Platforms are expected to withdraw the accounts of members of the public who repeatedly abuse their access to infringe copyright—indeed, the DMCA gives them a powerful legal incentive to do so. (In my legal practice, I have had to deal with web hosting services that were considering removal of consumer-friendly platforms that were receiving bogus claims othat my clients were hosting defamation or other tortious speech. Despite their section 230 protection, they often simply did not want to deal with the trouble).
In that context, it is no surprise that a platform cancelled the account of a politician who repeatedly abused his access to foment a riot. And Trump, after all, is wealthy enough, and remains powerful enough, to use other means to amplify his speech. Indeed, he has one mainstream news channel and several smaller ones that are dying to carry his speech.
But, at the same time, Twitter has allowed exceptions to those rules, and one very prominent exception is that senior government officials, particularly heads of state, are given more leeway on the theory that there is public interest in letting the public know what such people are saying. As a practical matter, Trump has had almost complete immunity from the sorts of restrictions that constrained other Twitter users. Much of what he has posted was a gross violation of Twitter’s rules, but he was allowed to get away with it. Note that Trump’s hold on the special exception is due to expire on January 20.
What I think has really happened is that, for a variety of reasons, Twitter decided to take away Trump’s special exception, and his ban — based on a range of past conduct — was the inevitable result of that change of position. Twitter has both taken away the special exception a few days early, and made its decision retroactive. Considering the way in which Trump managed to use his bully pulpit to incite a violent attack on Congress that was aimed at overturning a democratic election in which he was defeated, that seems to me to be within the range of understandable reaction.
But the reasons that Twitter gave for its decision strike me as laughable – recall he was suspended for 24 hours, then allowed back on the condition that he delete certain tweets and stop violating the rules. He did delete the tweets in question, and to my mind nothing he did after being reinstated violated their rules. He gave appearance of trying to satisfy them.
Twitter’s blog post explaining the Trump ban, asserted that two Trump tweets violated their rules against glorifying violence. But the two posts they quoted did nothing to “glorify" violence” What this comes down to is that Twitter says Trump has been banned because some of his supporters (in unspecified instances) are allegedly reading his post-suspension tweets in various dangerous ways. And misreading what he said, I might add.
One of the tweets praised his supporters — the 75,000,000 voters who supported him. He called them patriots. He said they should be respected and should continue to have a loud voice. That does not encourage violence.
The other tweet said he won’t be at the inauguration. Yes, a break with tradition, but maybe the best response is, good riddance!
Twitter says (and some other reports have echoed these concerns) that there are plans for armed protests and another attack on the Capitol. That is of great concern. But Twitter does not say that Trump is involved in that planning or that he tweeted anything about them. I did notice in passing a report that, after his initial 12-hour suspension was lifted, Trump had retweeted some of those statements. But the report also said that Twitter had cited those retweets in its decision and plainly it has not, so the fact-checking of the report is suspect. I have not been able to locate the report. And, because the Twitter account has been deleted in its entirety, I can’t verify the report (and I have not been able to find any screenshots).
Now, when Twitter justifies its decisions by relying on tweets that do not, in actuality, violate its rules, it just tends to suggest that what it has done is arbitrary. And that is not useful.
What May Really Be the Reasons
It appears to me that Twitter’s official views on Trump’s status evolved very quickly in the past week. Although top executives felt that so long as he was president he should continue to enjoy his special exception, Twitter staff apparently were very much of a different opinion, and forcefully so. There was apparently a staff petition, and then a large intra-staff meeting, in which Twitter’s top executives were raked over the coals by their staff for their inaction against the Trump account. That may well have mattered.
Additionally, Twitter was facing intense pressure on Capitol Hill and in the public arena to be more forceful about Trump’s incitement of the attach on the Capitol, and I believe they were genuinely concerned that, left with his Twitter account, he might well have used it to incite further violence on January 17 (Q being the 17th letter of the alphabet) and January 20. Not because the two tweets did that, but because the guy is out of control. The explanatory blog post refers to the covert planning for January 17 and January 20 repeat attacks, and I think it is quite possible that Twitter was worried that Trump might abuse his privileges. I wish the company had just said that (comparable to Facebook’s explanation) and said that, in retrospect, they had decided that its initial sanction for Trump’s previous violations of its rules was not sufficiently severe.
Perhaps More Cynical Explanations
First: Both Twitter and Facebook have cut back on Trump knowing that he is not going to have the powers of the presidency much longer, and that, indeed, both the White House and, soon, both Houses of Congress are going to be in Democratic hands. Just as they went out of their way to propitiate conservatives who claim (falsely) that social media companies discriminate disproportionately against conservatives, while those conservatives ran the Senate and the White House, these companies don’t want to be adverse to the new power in DC.
Second, and this is a related point: Trump liked to talk about how much benefit he derived from his Twitter account, but the converse is also true: Twitter has profited enormously from Trump’s account, which creates enormous controversy and hence draws many eyes to Twitter where they will see ads. A number of people in the tech sector have been saying that the situation has simply evolved to the point where the benefits that Twitter was getting from hosting @realDonaldTrump were getting to be greatly exceeded by the costs.
Third: One exception to section 230 immunity is for speech that violates the federal criminal laws. Some people have suggested that federal law enforcement officials may have reached out to Twitter to warn that if its facilities are used to incite more riots in Washington DC, such as on January 17 and January 20, it might face grand jury scrutiny. Now, to my mind the First Amendment’s Brandenburg standard would likely bar prosecution for mere passive hosting of prosecutable incitement; the Brandenburg standard requires not just incitement of imminent lawless conduct, but intent to incite imminent lawless conduct, and passive hosting of speech of which the host is not aware does not involve intent. But the possible exposure without section 230 immunity, and needing to rely only on the First Amendment, might well have been a chastening factor.
Paul Alan Levy is a free speech litigator in Washington DC