President Donald Trump lost his favorite online megaphone Friday, when Twitter permanently suspended his account over concerns his messages would incite further violence after Wednesday’s siege on the U.S. Capitol.
While Trump and his allies quickly accused the social media platform of silencing free speech, First Amendment lawyers said the action didn’t violate the president’s rights: The Constitution protects against government action censoring a citizen’s speech. Twitter, meanwhile, is a private company.
First Amendment protections against government censorship do not apply if Twitter “decides it is not going to participate in disseminating someone else’s message,” said Jeremy Mishkin, a lawyer with Montgomery McCracken in Philadelphia who practices First Amendment law. A newspaper, for instance, is not required to publish a politician’s news release, Mishkin said.
Yet the action did raise questions about what could be considered protected speech — and the role of social media companies in regulating online communications.
“This is really uncharted territory,” said Laura Little, a Temple University professor who specializes in First Amendment law.
Though the First Amendment only protects speech from government censorship, and social media companies are not government entities, Little said the U.S. Supreme Court has applied a more “fluid” standard to what constitutes state action in freedom of speech cases than in those pertaining to other constitutional rights.
She pointed to New York Times vs. Sullivan, the landmark Supreme Court decision that said newspapers could not be held liable for printing false information about a public official, unless they did so with “actual malice.” The case was brought by the Times against an Alabama police commissioner who had successfully sued the newspaper for running an advertisement that contained factual inaccuracies.
The Supreme Court decided the case using the First Amendment, though the commissioner had brought his case against the newspaper as a private citizen. The most likely way that the court determined the First Amendment’s protections applied to the situation was by assuming the commissioner’s use of the court system constituted “state action,” Little said.
“Is Twitter violating the First Amendment? Technically, Twitter is not a state actor. Arguably, no,” Little said. “But, because that requirement of the state actor has been more fluid in this context, it’s not so clear.”
Still, the First Amendment isn’t the only legal issue at hand: Congress has passed criminal statutes that allow people to be held liable for making threats, Little said.
In cutting off Trump’s account, Twitter cited tweets by the president Friday, including one that read: “The 75,000,000 great American Patriots who voted for me, AMERICA FIRST, and MAKE AMERICA GREAT AGAIN, will have a GIANT VOICE long into the future. They will not be disrespected or treated unfairly in any way, shape or form!!!”
Such messages, Twitter said, “must be read in the context of broader events in the country” — coming two days after Trump supporters breached the Capitol, disrupting Congress from counting electors to confirm President-elect Joe Biden’s win. The platform determined the tweets violated its Glorification of Violence policy.
The announcement came after Facebook on Thursday banned Trump from posting, at least through Biden’s inauguration on Jan. 20. “We believe that the public has a right to the broadest possible access to political speech, even controversial speech,” CEO Mark Zuckerberg wrote. “But the current context is now fundamentally different, involving use of our platform to incite violent insurrection against a democratically elected government.”
While social media has allowed Trump and other politicians to circumvent traditional media — communicating with the public without having to face questions from reporters — “I don’t think Twitter or Facebook has greatly enriched the quality of our elected leaders’ communication to the public,” said Diana Mutz, a political science professor at the University of Pennsylvania who studies political communication.
“What gains traction on social media is outrageousness,” Mutz said. “It incentivizes precisely what we don’t want in political discourse.”
Assessing the impact of social media — including on people’s political beliefs — is difficult, Mutz said, in part because data from the companies are limited.
But social media does make it easier for like-minded people to connect, she said. And for politicians like Trump, “to reach the kinds of extremists that we’re talking about, that took part in the siege on the Capitol ... these people you’re not going to reach through mainstream media.”
Conservatives angered by the Twitter ban have renewed calls to repeal Section 230 of the federal Communications Decency Act, a provision that shields internet companies like Twitter from liability for content posted by their users.
“The Ayatollah can tweet, but Trump can’t. Says a lot about the people who run Twitter,” Sen. Lindsey Graham (R., S.C.) tweeted Friday night, adding he was “more determined than ever to strip Section 230 protections from Big Tech (Twitter) that let them be immune from lawsuits.” (A number of lawyers said repealing such protections would likely result in more bans by social media companies, since they could now be held liable for user-generated content. “It’s illogical,” Mishkin said.)
Though Trump supporters and others on the right have claimed they are being censored by technology companies, that isn’t the case, said Yphtach Lelkes, assistant professor of communication at the University of Pennsylvania, who has researched the ideology of Twitter users and whether there are discrepancies in which profiles show up in search functions.
Still, Lelkes said Twitter’s ban of Trump is likely to increase distrust among conservatives of the mainstream social media platforms. Some have threatened to migrate to Parler, which bills itself as a “free-speech platform.”