The recent suspension of President Donald Trump’s accounts on various major social media platforms, most notably, Twitter, has unsurprisingly resulted in gleeful jubilation on the left and uncontainable fury on the right. More recently, Parler, a conservative social media platform, was removed from Google and Apple’s application stores. Beyond partisan politics, however, a sense of foreboding is brewing in many who has just begun to recognize Big Tech’s outsized influence on the flow of information and the precarious state of the right to free speech.
The most common argument for social media platforms’ unrestricted censoring of information is these platforms’ status as private corporations. It is true that the First Amendment, which protects the freedom of speech, applies only to actions and policies of the government. Thus, a private corporation cannot be held legally accountable for violating the First Amendment. This does not, however, make Twitter’s actions any less concerning nor their potential consequences less dire.
Though social media firms are private corporations, their tremendous aggregate market share coupled with the public’s reliance on them due to the industry’s rapid expansion in the last two decades has endowed them with a government-esque power. Facebook and Twitter play a crucial role in regulating the distribution of information, given the effectiveness, comprehensiveness, and lack of negotiability of social media censorship. The efficient silencing of the sitting President of the United States, who is arguably the epitome of governmental power, sufficiently demonstrates the potency of the Big Tech Coalition’s control over public discourse.
In theory, censorship or regulation of information initiated by government entities is subjected to judicial scrutiny of its constitutionality. Censorship implemented by private corporations, however, not only evades any confines of the Bill of Rights but is also made arbitrary by the companies’ rules and policies.
The chief reason for President Trump’s suspension cited by social media platforms was his violation of these platforms’ policies against the incitement of violence. After some Trump supporters violently stormed the Capitol on January 6, Mark Zukerberg stated, “Over the last several years, we [Facebook] have allowed President Trump to use our platform consistent with our own rules, at times removing content or labeling his posts when they violate our policies. We did this because we believe that the public has a right to the broadest possible access to political speech, even controversial speech. But the current context is now fundamentally different, involving use of our platform to incite violent insurrection against a democratically elected government.”
This all appears to be fair and reasonable until, upon closer scrutiny, we realize how vague the policy violation standards of Twitter and Facebook are and how easily they may be applied to other public figures. For instance, Democratic Representative Maxine Waters has publicly called for the harassment of President Trump’s cabinet members. There is certainly a case to be made that Waters also engaged in incitement of violence, and hence should face suspension like the President. But do we want to have her silenced too? Is it in the public’s best interest that the free exchange of ideas and opinion, albeit inflammatory, be stifled at the sole discretion of a coalition of private corporations?
Anyone who believes that right-wing groups will always be the ones on the cutting board of censorship is sadly mistaken. As history has adequately illustrated, the political climate is a pendulum. Previously obscure ideologies have risen from the ashes of ideologies whose political prowess has withered in times of crisis and come to dominate nations in a matter of years. America swung from FDR liberalism to McCarthy anti-communism to ‘60s progressivism to Reagan conservatism in 50 years. What is politically correct and socially acceptable may alter drastically over a person’s lifetime. Acquiescing to the suppression of voices of a cause unpopular today may very well set a dangerous precedent, laying the groundwork for the oppression of other ideological groups in the future.
It is not the author’s intention to make a case for the absolute absence of any regulations of social media platforms. Appropriate moderations are undeniably necessary for maintaining a safe and socially responsible platform that promotes the exchange of ideas. However, if social media corporations wish to demonstrate a sincere commitment to the reasonable restriction of content on their platforms, it may be advisable that they employ a more specific and widely recognized standard. One of such standards is the Brandenburg test, the standing legal test for the restriction of inflammatory speech. The test excludes speech that is “directed to inciting or producing imminent lawless action,” and “likely to incite or produce such action.” It is through implementing such an unequivocal and legitimate standard for the content restriction that social media platforms may be able to redeem their name as unbiased moderators and fulfill their corporate social responsibility by avoiding abuse of the immense power of their shared monopoly.
The spirit of the First Amendment is the promotion and protection of free speech. Just because the Bill of Rights’ purpose had never been to regulate entities other than the government does not mean that the silencing of particular ideological groups is not a flagrant violation of the principles it was designed to uphold. The crafters of the Bill of Rights could scarcely have dreamt of an industry so formidable in scale and influence that it could rival the government, whose power and potential for autocracy had long been feared and, hence, harnessed by the Bill of Rights. That Frankenstein industry is here today, and those who regard the freedom of speech as the bedrock of liberty and democracy may feel a chill running down their spine.