Free Speech – American Style

by Kieron O’Hara
kmoh@soton.ac.uk

25th Jan, 2021
The dust is settling on the chaotic aftermath of the American election, and debate is opening up about free speech: in particular, was Twitter right to deny President Trump, as he then was, access, and was the tech world in general right to round upon far right platforms, notably pushing Parler offline? Even some of Mr Trump’s biggest enemies were concerned.
This is all complicated by our prior views on a number of topics: the positive and negative aspects of social media and the companies that run the networks, Schadenfreude or sympathy for Mr Trump, and the status of mob protest, as surprisingly many commentators are relatively sanguine about political violence when it comes from ideological directions with which they are comfortable. One academic concluded in 2013 that “the use of insurrectionary symbolic damage is a reminder of the failings of representative democracy in how it deals with political conflicts”, which is more or less the MAGA line, if perhaps less pithily expressed.
So, were Twitter and Facebook right to remove Trump’s platform? There are a number of ad hominem points to be made that don’t really affect the philosophical ones. Yes, Mr Trump did rather ask for it. No, the offending comments that were the last straw were nowhere near as incendiary as some that he had made previously without anyone at Twitter worrying about them. No, it is not coincidental that Mr Trump was banished after he was confirmed as the loser of the 2020 election, and so had become the lamest of lame ducks.
What the imbroglio does show is the peculiar mix of ethics, law and politics that makes it hard to translate American moral discourse into foreign contexts. It particularly matters when we consider Internet rights, because the US contains highly local ideological framings of Internet governance, as Wendy Hall and I have written, and describe in a forthcoming book, Four Internets.
This is an American argument, pitting an American company against an American individual who happens to be a businessman and politician of some prominence in America. Hence the context is not the broad issue of whether and when people should be allowed to say what they wish, but specifically the First Amendment of the US Constitution. This states that Congress should not pass any law that abridges freedom of speech or the press.
Note first that this applies only to Congress; as with most of the US Constitution, it is intended to protect private citizens from the government, not each other. So on the face of it, the First Amendment is, unlike many of today’s commentators, silent on the topic of Twitter and Trump. Twitter is a private actor, and not the direct target of the Amendment.
But is the government obliged to ensure Mr Trump is heard? After all, freedom of speech is surely abridged if people are denied platforms from which to speak. Perhaps the government’s responsibility is to prevent such abridgement on its territory.
A private person of course has preferences. Suppose someone stood on a soapbox in your back garden and started spouting views of which you disapproved. You would want the power to stop him, and rightly. And to complicate the argument, this power is understood, legally, in the US as your free speech – your free speech rights extend to your control of the speech that emerges from of your territory. If you owned a company, then you could close down the speech of an employee who used your communications to say something of which you disapproved, although it would be different if they used their own media.
Twitter, it is plain to see, is not a person. But this truism is less relevant, because in US law, corporations have relatively prominent legal personalities compared to other jurisdictions. Naturally, Twitter has no opinions, but it does have business interests, and any business might well wish to suppress statements that could damage its interests.
What if you were director of a company that owned a shopping mall, and wanted to prevent someone going into the mall and criticising the shops that rented space, directly outside their doors. Whose free speech counts now – yours, or the protestor’s? Is a shopping mall a public or a private space in the relevant sense? The police are called, and the government has to decide whether to defend the protestor’s right to speak ill of your clients, or your right to throw him out. It turns out that in the US, the police defend your rights, and not the protestor’s. Once the protestor is on the (public) pavement, then his rights take precedence, but not inside the (private) mall.
What about a privately-owned communications company? Can a mail service refuse to take a letter, or a telephone company a call? No, the government will defend the rights of the protestor in that case. The services are so-called common carriers, obliged to take the communications of anyone willing to pay the price, but as a quid pro quo not held liable for the speech they carry, be it libellous or hateful. It is an infringement of free speech if a common carrier will not take your communication, and the government’s obligation is to ensure the protestor gets heard.
So now comes the question: is Twitter more like a shopping mall, or a mail service? On the one hand, it is sheltered from any liability that would follow from what is posted upon it (unlike, say, a publisher, which would be liable for incitements to violence it published), as an “interactive computer service” in the terms of the 1996 Communications Decency Act (but not a common carrier). On the other, the US Supreme Court has recently tended, in cases of this kind, to defend the freedom of private entities such as Twitter to suppress speech on their media of which they do not approve (even if only to protect their business interests), rather than to order government to defend the freedom of speech of those who would wish to use private media.
So Twitter’s calculation was legally and economically hard-headed. Cancelling Candidate Trump, or President Trump in his pomp would have had repercussions – indeed, in an argument with Twitter, Mr Trump, in tandem with many other Republicans and Democrats, even threatened to repeal the aforesaid Communications Decency Act, which could have killed off Twitter, and many other social media, entirely. But giving Ex-President Trump a platform, especially after his loser status had been confirmed by Congress, and after his support had been undermined still further by what looked remarkably like a failed coup d’état, could be even more dangerous, especially as Mr Trump is likely to turn his post-election wrath on the Republican opposition as well as the Democratic government (i.e. everyone). After the riot, and after the confirmation of the electoral college result, the calculation changed. And Twitter’s calculation is what counts.
Is it a correct one? Probably. Although its share price fell upon Mr Trump’s defenestration, during the course of 2020 more and more advertisers prevented their ads appearing alongside his increasingly unhinged witterings. Twitter seeks to maximise engagement. As Commander-in-Chief, Mr Trump’s tweets were certainly engaging; now he is just another alt-right troll, maybe not so.
Facebook made a different calculation. It dropped Mr Trump as did Twitter, for the same reasons, but it is a more global company, and it needs to operate in contexts where free speech judgments carry less legal baggage. Consequently its ex-Eurocrat Vice President Sir Nick Clegg, who handles its international PR, has sent the decision to its Oversight Board for confirmation. This will happily delay the decision for long enough that, whichever way it goes (and it will find in Mr Trump’s favour), the heat will be drawn from the American political situation. Yet, although the Board will produce a piece of philosophical argument expressed in the most highfalutin prose, the decision itself – indeed, the very existence of the Oversight Board – remains a business decision, a hard-headed calculation of the long term interests of Facebook.
Finally, it is worth pointing out that Facebook’s Oversight Board has given it a number of advantages over Twitter’s command and control. It functions as the long grass into which the problem has been kicked, while simultaneously allowing the removal of Mr Trump during this tense period. And it gives the illusion of making a moral decision independent of the specifics of American politics, American business and American law. Sir Nick won’t have to apologise after this process is complete.