Break Up Twitter? Or Ban Trump? Where Does Social Media Go from Here?
Break Up Twitter? Or Ban Trump? Where Does Social Media Go from Here?
This is not an issue of the First Amendment, says BU’s T. Barton Carter
Whatever possible legal or political consequences befall Donald Trump for inciting last week’s Capitol rampage, the social media fallout has begun, with Twitter permanently banning the president’s ever-tweeting finger last Friday. Other commercial guillotines fell, as well.
Twitter removed 70,000 accounts associated with QAnon, the conspiracy theory that Democrats and elites oversee a massive pedophile ring; Amazon, Apple, and Google have stopped hosting Parler, a social network through which Trump supporters applauded last week’s violence (Parler has sued Amazon); Facebook vowed more aggressive restrictions of disinformation before Joe Biden’s inauguration on January 20; and Simon & Schuster canceled a book deal with Senator Josh Hawley, the Missouri Republican who led opposition to certifying Biden’s Electoral College win, based on the falsehood that Trump actually prevailed.
Are these actions in violation of First Amendment, free-speech protection and a demonstration of anti-conservative bias, as Trump and his supporters allege? BU Today asked T. Barton Carter, a College of Communication professor of communication and an expert in communication law and new technologies. He is a member of the Massachusetts bar and the author of three textbooks on the First Amendment and communication law.
With T. Barton Carter
BU Today: People have accused social media companies and Simon & Schuster of stifling free speech. Is that what they are doing when they ban certain users or, in the case of Simon & Schuster, cancel Hawley’s book deal?
T. Barton Carter: You can argue they’re stifling some free speech, because they’re preventing it from being disseminated. But that’s a right they have. The First Amendment only limits the government’s right to restrict speech. It starts off, “Congress shall make no law…” Through the 14th Amendment, that has been extended to apply to state and local government. But it does not apply to private companies. In fact, private companies have First Amendment rights and, you could argue, could not be prevented from deciding who gets to speak on their system or not.
BU Today: Most people would say social media companies have a positive, socially redeeming mission in terms of bringing people together and sharing information. But how do you counter the negative effects—disinformation and incitement based on disinformation?
T. Barton Carter: Part of the First Amendment is that, sometimes, you have to take bad speech with good. We don’t want the government getting to decide whose speech is good speech. It’s hard to draw the cause and effect of what happened at the Capitol to specific speech. Certainly, the government can limit or punish incitement, which is “advocacy directed to inciting or producing imminent lawless action and likely to produce such action.”
People want to have Trump prosecuted for his speech [before the riot]. They have to prove incitement, or his speech is protected by the First Amendment. That would be very, very difficult to prove. If he had said, “Okay, swarm the Capitol right now,” clearly, that’s incitement. But excessive rhetoric—people have a right to protest. They didn’t have a right to do what they did, and they can be charged with those crimes. But in trying to convict somebody on the grounds of what they said, it’s a very tough standard.
The Supreme Court case on that [issue of incitement] actually involved a KKK member. He was engaging in what we now call hate speech, but the Supreme Court said it had to rise to the level of incitement before it was not protected by the First Amendment.
BU Today: A law professor quoted by the Washington Post agreed that while the First Amendment applies to government, we should be worried about powerful corporations like Twitter and Facebook making decisions about speech. Do we need a new law or a First Amendment revision for this 21st-century world?
T. Barton Carter: I agree completely we need to be worried. Somebody suggested you [should] try and use antitrust law to limit their power in that area. The real issue is the concentration [of power].
BU Today: So break up Twitter or Facebook?
T. Barton Carter: Or apply some rules based on that. We used to refer to it as a division between content regulation and structural regulation, and I would always, I think, be more in favor of structural regulation.
BU Today: What’s the balance between making sure discussion is civil, non-incendiary and not trafficking in lies, and ensuring that it’s robustly diverse?
T. Barton Carter: “Civil and non-incendiary”: where’s the line on that? The First Amendment has been held in many cases to protect falsehoods. If you’re a public figure, you can only recover for a defamatory falsehood if you can prove actual malice, which is knowledge of falsity or “reckless disregard” of whether it was false. A large number of defamatory falsehoods are protected by the First Amendment.
BU Today: What advice might you give to some of these companies grappling with issues of free speech?
T. Barton Carter: That’s a difficult question. Can you rely on anybody to make the right decision on what speech should be allowed and what speech shouldn’t? We all have different ideas, and that’s why we have such a robust protection for speech. I find Trump’s speech incredibly offensive and have no great desire to have it disseminated. But you have to think about precedent: whose speech is next? Who else’s speech gets limited and for what reasons?
BU Today: Would you have done what these social media execs did?
T. Barton Carter: As a practical matter, yes, because of public pressure. There is no First Amendment issue for them. These companies are taking a concern maybe as much for business reasons as anything else. If they didn’t do something, Congress seems somewhat interested in restricting their ability to avoid liability.
Witch hunt! Witch hunt! There is no right and wrong, everything is politicized, if u are on my side u right, if u are on the other side u wrong, what a shame.
Banning Trump and conservative is going to backfire. People that believe in GOD and COUNTRY will eventual get sick of communist control of the so called free press.
It’s not about banning individuals or “conservatives” (trump supporters are NOT) but setting policy on threats and incitement to violence. Stick to that and let it fall on left or right as it may – tho we all know where the hate comes from. Then set how many violations an individual may have before they are banned. Simple and apolitical.
That’s exactly right! If whatever censorship were applied by Twitter, Google, Amazon, etc were applied transparently and consistently without regard to politics, it would be one thing. But that’s not what’s been happening… Almost exclusively it is conservatives who get de-platformed by supposedly violating speech policies of tech giants.
I don’t have actual stats or examples in front of me but I remember how violent and destructive months of sometimes deadly riots became. I remember various public figures excusing, justifying and sometimes even encouraging violence on Twitter and Facebook. What I don’t remember is people being cancelled for it. Were there mass purges of user accounts for hate speech, incitement, or violating speech policy? It seems that if violent speech and incitement is for politically correct causes, then it is okay.
I agree entirely with your comment! Well done. More speech is the antidote for “hateful” speech or “bad” ideas, not censorship by a central monitoring authority.
It’s abuse of the language to call violent extremists “Conservatives”, but anyway, the reason they are being “de platformed” is because they are the haters!
RE support of the Bill of Rights, the 1st Amendment says “Congress shall make no law….”. Don’t go on about Constitutional Rights without reading it. It’s entirely about what Gvt does, not private corporations.
Your premise that private media corporations should have free reign to censor political speech points out a puzzling question in our American experiment. Private businesses are prohibited by government from violating certain civil rights, but not others. In the deep south, private businesses practiced racial discrimination and justified it using the same argument you’ve adopted here. Our society saw this racial discrimination as a violation of our core principles. We adopted changes to the Bill of Rights partially to prevent racial discrimination by private business. Freedom of speech is another core principal of our free society. How is a corporate social media conglomerate that censors free speech based on political viewpoint (i.e., viewpoint discrimination) any different than a coffee shop that serves “whites only”? Is it because one’s conscience is not an inherent attribute, like race? If so, isn’t one’s religion also a choice? Private businesses are prohibited from discriminating in employment and offering “public accommodation” based on religion. Do we still value freedom of speech or are we so eager to avoid hearing different ideas that will we’ll allow private media companies to decide who may post them?
About the “haters”: I believe there is already near universal condemnation of the violent right-wing extremists who attacked the Capitol. I cannot agree more that these fanatics should be totally and loudly condemned and should be criminally prosecuted (the ones who actually went into the Capitol building) to the fullest extent of the law and yes de-platformed. Political violence of any kind should be utterly condemned and rejected. It is truly abhorrent to everything that a free and democratic society stands for.
However it is burying your head in the sand to talk about the violence that took place in the Capitol without mentioning a word about the leftist BLM/Antifa incited violence that happened for months during the summer in many cities, cost more 30 lives (I believe?), billions of dollars in damage, destroyed untold number of local businesses (see Portland, Seattle, Kinosha, Chicago, Philadelphia, LA, I could go on). These were not as some people would have you believe just “peaceful” protests!
We are not talking about several hours in one day of rioting. We’re talking months. Months of looting, burning, government buildings on fire (speaking of Capitol), businesses – many minority owned – burned, looted, destroyed, some never to come back. People beaten, shot and sometimes fatally shot.
Not only did major news media and politicians downplay and excuse these riots but in some cities such as Portland, Seattle, Minneapolis, mayors or police chiefs were ordering cops to stand down, let the mobs destroy neighborhoods. Let’s think about this for a moment: these city governments utterly failing in their most basic duty to protect their own residents in the name of what exactly? The justification for this goes something like this: people are angry at the injustice, BUT their cause is just, they need to let out steam, we need to let them destroy your property, your livelihood and beat the hell out of you, sorry dear citizen. The mob is very upset.
So the message we’re getting all summer is: if it’s for a righteous and just cause, anything goes, violence, looting and destruction are okay. Well, this logic and message was heard loud and clear by the right wing extremists. They too think their cause is righteous and just. Is it any wonder we are where we are?
I think we are on a dangerous road when we start limiting speech. On social media everyone is a publisher — the platform is merely the vehicle. Democracy is dependent on the free flow of ideas, whether or not I agree with those ideas.
Banning people from social media sites is like the paper manufacturers forbidding the Boston Globe from printing on paper anymore, starting right now!
As for Donald Trump, his biggest enemy has been his own rash statements. His tweets may have cost him the election. Twitter may have done the democrats a favor by letting him say all he did.
Control the media and message, through censorship, cancelling, news suppression and bias, and free speech is severely compromised………….a very slippery and dangerous slope, and seems to be/have been a priority and very effective weapon in totalitarian regimes of all stripes.
Mr. Barlow – You stated, “I find Trump’s speech incredibly offensive ..”
Because that is such a strong statement, it compelled me to wonder exactly what it is that he said that you found “incredibly offensive.” Please understand clearly that I am not challenging you; nor is it my intention to debate you on the matter – it’s just that I am a 70-year-old female and I simply want to make sense of the whole matter because something doesn’t ring true about the general reaction that is being publicized.
I hadn’t heard President Trump’s speech, so I pulled it up on the Internet to listen to it, and and quite frankly Mr. Barlow, I can’t imagine what could possibly have offended you so incredibly about his speech. As well, I am of the opinion he did not “incite violence” – rather, the part in which he mentioned the Capitol building, went like this (I’m quoting him):
“I know that everyone here will soon be marching over to the Capitol building
to peacefully and patriotically make your voices heard.”
Hmm, inciting violence? In the world I come from, the words “peacefully” and “patriotically” infer behavior that is far removed from violence – so that can’t possibly be the part you are referring to. That said, I would like to respectfully request that you let me know what it was that President Trump said that offended you so. I’m thinking we surely are talking about two different speeches. Would you kindly help me out on this one, Mr. Barlow? Considering my age, I have concerns that my mental faculties are failing.
Please respond to my email address that I provided when I posted this comment. Thank you.
Twitter is not the problem.
The use of information that is not supported or slanted with partial truths is the real problem.
Supported comment should only be allowed or comments like I feel that should be forced to be cited
If politicians and journalists were not allowed unsupported, slanted, and partial truths, their only alternative would be silence.
The social media platforms are no longer information platforms but political platforms. they should be subject to litigation and not protected.
something truly needs to be done about twitter as i am suspended permanently for replying to a tweet that said mitch mcconnell’s term not up until 2026 by saying i hope he will be dead before then. are you kidding me!?! meanwhile hate speech and porn, yes porn,have seen it twice on people’s timelines, abound!
Trump did not say to violently storm the capital. He said some stuff, and then the people who gathered decided to get violent. Not his fault, so he shouldnt get in trouble.