Following Facebook's decision May 5 to keep former President Donald Trump's ban in place in addition to Twitter's so-far-upheld lifetime ban of Trump's account, debate heats up over how much control a private company should have on speech in a public forum.
On Jan. 6, roughly 800 people stormed the U.S. Capitol in an act of violence to sabotage the 2021 presidential election results.
Five people died, including a Capitol police officer and four rioters. One was shot down by police on site and three died during the rampage due to what authorities deemed as medical emergencies.
And amid the political aftermath, one of the lasting consequences was banning the accounts of then-President Donald Trump from Twitter and Facebook, citing threats of imminent violence.
While the legality of a private company banning speech that violates its conduct code is clear, the bigger issue is what the impact of allowing major social media companies such control over the national conversation.
How the riot unfolded
Following Election Day on Nov. 4, 2020, American citizens awaited verification of the election results, a usually boring formality in early January. But as the two months passed and Trump and his associates continued spreading lies about election results, tensions between the political parties increased.
The site of the verification was The Capitol Building in Washington, D.C., a symbol of American democracy. The structure hosts the meeting place for Congress and is composed of the House of Representatives and Senate.
Together, these two branches of government represent the American people throughout the nation.
One of Congress’ responsibilities is to verify presidential elections through the counting of Electoral College votes. On this day, Congress received the final Electoral College votes and set out to officially determine the next President of the United States.
With the increased amount of mail-in ballots due to COVID-19, many Americans and legislatures were frustrated and skeptical of election integrity, though investigators found there were no fraudulent absentee ballots.
President Donald J. Trump was the biggest skeptic of all, publicly criticizing that the election was fraudulent. He demanded that the vice president refuse to accept states’ verification of their votes, regardless of courts across the nation ruling that throughout the election period, no fraud occurred.
When Biden received more votes in Georgia, Trump declared on national television for his followers to make their voice heard and “stop the steal” of the election.
Thousands of Trump supporters gathered at what Trump called a “Save America Rally,” located at the Ellipse, a park near The White House. He spoke for more than an hour, inflaming his followers with anger toward the election results.
“Our country has had enough,” Trump said. “We will not take it anymore, and that’s what this is all about. To use a favorite term that all of you people really came up with, we will stop the steal.”
When Trump concluded his “Save America Rally,” he urged his supporters to head toward the Capitol building to protest the soon to be win of President Joe Biden.
“We fight like hell, and if you don't fight like hell, you're not going to have a country anymore,” Trump said. “So we are going to walk down Pennsylvania Avenue – I love Pennsylvania Avenue – and we are going to the Capitol.”
What started as a peaceful, pro-Trump rally quickly turned into a riot with hundreds forcing their entry upon the Capitol building. Trump proclaimed to his supporters that “you’ll never take back our country with weakness.”
Members of Congress in the Capitol for the election results verification, including former Vice President Mike Pence, were forced to take shelter as law enforcement identified the danger of the situation and put the building on lockdown.
Roughly 45 minutes later, Trump tweeted for his followers to remain peaceful and to “Remember, WE are the Party of Law and Order--respect the Law and our great men and women in Blue.”
With a mass crowd of rioters, the violence continued with officers struggling to contain the situation. Many rioters refused to leave, defying law enforcement and defacing the beloved Capitol building.
Two hours after the violence was broadcast on national television, Trump released a video on Twitter explaining for his supporters to go home.
He claims to his followers that “I know your pain, I know you're hurt. We had an election that was stolen from us. It was a landslide election and everyone knows it, especially the other side. But you have to go home now.”
Trump goes on to say later in the video, directly speaking to his followers that “We love you, you’re very special.”
Two days later on Jan. 8, Twitter permanently banned Trump from the social media platform due to violation of its community guidelines, arguing that his words were responsible for directly leading to violence. After months of flagging his tweets for false information, Twitter posted on its website that Trump was removed due to risk of further incitement of violence. The question is, how was Twitter allowed to ban the President of the United States?
‘Free speech’ doesn’t mean all speech is free
Social media’s role in political affairs has often raised objections. With social media companies like Twitter being private entities rather than government agents, they do not fall under the First Amendment’s mandate that “Congress shall make no law abridging the freedom of speech.”
But that doesn’t mean they can operate without attention to freedom of speech. To understand the First Amendment is to understand a very complicated history of defining a rather broad law.
The First Amendment outlines five freedoms. It protects an individual’s freedom of speech, religion, press, assembly, and right to petition the government.
But the First Amendment only restricts the government and its institutions (such as courts, public schools, local, state and federal governments and their agencies) from censoring individual free speech. Private companies and entities are not included in this phrasing, which allows Twitter to silence any individual based on its rules and regulations.
The Supreme Court has had little to say when it comes to social networks and free speech, but in 2018, Nyabwa v. Facebook became a clear precedent of the legal rulings on censorship in social media platforms.
In Nyabwa, an individual filed a lawsuit against Facebook for permanently banning him from the site. Nyabwa initially set up a Facebook account titled “Emoluments Clause” with a link to his website sharing the same name.
“Emoluments Clause” became a popular saying after Donald Trump was elected president in 2016. The Emoluments Clause in the United States Constitution prevents “advantage, profit, or gain received as a result of one’s employment or one’s holding of office.”
Many Americans claimed Trump was in violation of the Emoluments Clause when he became president. Due to Trump owning property and hotels across the world, citizens were concerned that he could influence his private business dealings in other countries through his role as president of the United States.
Facebook temporarily locked Nyabwa’s account without warning and proceeded to ask him for a government identification card. When Nyabwa presented Facebook with this information, they banned him.
The case cites that “Because the First Amendment governs only governmental restrictions on speech, Nyabwa has not stated a cause of action against FaceBook.” Therefore, the Supreme Court dismissed the case and ruled that private entities are not subject to the free speech mandates of the First Amendment.
Early First Amendment jurisprudence adopted the marketplace of ideas theory that drew on the economic concept of a free market. The idea was that truth would emerge from competing ideas if transparent and robust public discourse was allowed.
In this way, the government would not need to censor speech because the accuracy of it would naturally be the determining factor of what was given credence in the larger public sphere.
That concept became the basis for applying the First Amendment but has come under fire. With many voices and much debate in the public sphere, it has become increasingly hard for people to know what information is truthful.
Applying ‘public forum doctrine’ to social media
While the marketplace concept has been applied only to government entities for free speech, in Packingham v North Carolina, the U.S. Supreme Court ruled “that social media sites like FaceBook and Twitter have become the equivalent of a public forum for sharing ideas and commentary.”
In free speech law, a public forum refers to a place in which a speaker expresses themself, but there are varying levels of freedom for different types of forums, so it is important to know what kind of forum is defined for the speech.
The three types of public forums are traditional, designated and nonpublic, and each has its own set of rules.
The traditional public forum grants the most freedom of speech, prohibiting the government from discriminating against speakers based on their views. Spaces included are areas such as public parks and sidewalks.
The designated public forum occurs when the government opens a nontraditional forum for public conversation but may also impose time, place and manner laws - restrictions based only on logistics and not on viewpoint.
An example would be a school deciding to only allow its building to be used for school events and not religious groups. But if the school decides religious groups can meet in the school on Sundays, it cannot discriminate against certain religious groups.
Under a designated public forum, the government may also restrict content when there is a compelling reason to do so.
The third type is a nonpublic forum, which includes places the government can restrict speech as long as it is not for a speaker’s viewpoint. Time, place and manner restrictions are allowed. Airport terminals and polling places are good examples of nonpublic forums.
In 2019, the Second and Fourth Circuit Courts of Appeals ruled that when the government engages in usage of social media, it creates a designated public forum.
The ruling came from Knight First Amendment Institute v Trump, when Trump blocked users from accessing his Twitter platform because they were critical of him and his governmental policies.
The appeals court decided that “the interactive space associated with Trump’s Twitter account ‘@realDonaldTrump’ is a designated public forum and that blocking individuals because of their political expression constitutes viewpoint discrimination.”
In Packingham, a registered sex offender posted on Facebook to describe his positive experience in traffic court. He was then taken into custody by police due to his violation of a North Carolina law, which prohibited sex offenders from using social media sites.
The Supreme Court stated that social media is a protected space under the First Amendment and the state law forbidding sex offenders from accessing the internet was too broad and restricted their First Amendment rights beyond the necessary scope. The Court added that North Carolina could still impose restrictions on sex offenders such as not allowing them to engage with minors on social networking sites.
“One of the most important places to exchange views is cyberspace, particularly social media, which offers relatively unlimited, low-cost capacity for communication of all kinds to users engaged in a wide array of protected First Amendment activity on any number of diverse topics,” the Supreme Court held.
Although this was stated, the case denotes that “the Court must exercise extreme caution before suggesting that the First Amendment provides scant protection for access to vast networks in that medium.”
Ultimately, the ruling of Packingham suggests that social media is a protected space underneath the First Amendment, but not for all speech that may put others in danger or at risk.
Social media brings new definition of 'forum'
Since the creation of Twitter in 2006, it has been an effective social media platform for users to intimately interact with one another. Noah Glass, an often forgotten cofounder of Twitter, found that the application allowed users to feel as though they were right there with the person they chose to communicate with.
Twitter was originally created when smartphones were fairly new and important to society. Jack Dorsey first came up with the concept of Twitter due to the need to solve his own personal problems with texting.
Dorsey saw that many of his friends did not own a cell phone that was capable of texting. Frustrated, he noticed that the primary outlet for communication between his friends was through their home computers. He wanted text messaging to work on any platform at the time, whether it be by phone, computer, or other devices.
Thus, Twitter was born. In 2006, Twitter became the sixth social network on the Internet. It was primarily used for chatting among friends and other users about random topics; however, it has grown to be a massive platform shared by politicians, entertainers, journalists, news outlets, comedians and everyday Americans.
Twitter hosts discussions about politics, culture, and international policy, but also leaves room for entertainment such as gifs, popular culture videos, and memes.
Through the years, users have developed what researchers have termed “ambient intimacy” - the feeling of closeness toward certain people based primarily on their status updates on social media.
It is understood that users of Twitter feel even closer to a person when his or her tweets are seen as more entertaining, instructive, and intimate.
Often Trump’s tweets were nontraditional and informal--especially for the man who holds the highest office in the country-- intriguing his followers and helping them feel close to him.
In 2009 when Trump first began to use Twitter, he mainly used it as a marketing tool to promote his books and television series. Two years later, he publicly questioned the authenticity of former President Barack Obama’s birth certificate, claiming on Twitter that “An extremely credible source has called my office and told me that @BarackObama’s birth certificate is a fraud.” Thus Twitter became his main avenue for perpetuating a right-wing conspiracy theory.
As he began contemplating running for president of the United States in 2015, he focused on interacting with other political figures. Once his presidential campaign was announced, Trump used Twitter to reach out directly to his supporters, continuing to mix opinion for fact.
When Trump won the 2016 election and became the 45th president of the United States, his style of tweeting did not change. And because his tweets were unpredictable, he gained not only a large following but also non-stop attention to his commentary on the social network. People were obsessed with the mystery of what Trump may say next.
Trump was banned from Twitter, but what could the free speech ramifications be of banning the former president from a space deemed a limited public forum?
Social media companies can control the national conversation
Social networking sites have become a popular medium for conversations about a wide variety of topics. They have the power to control national dialogue, attitudes, and perceptions.
The role of social networking sites in political conversation evolved during the 2008 presidential election. Obama was one of the first candidates to utilize social media to promote his candidacy. He frequently used Twitter to focus on collaborating with constituents, politicians and building a sense of community.
Social media has given rise to political and social movements, but there are signs that those in control of social networking sites and political elites who use them have significant control over the entire political sphere.
Social networking sites have narrowed their users' access to political information through personal data. When signing up for a social networking site, the user agrees for their data to be visible to the company.
Social networking sites have utilized algorithms to specifically show only information interesting to the user based on their likes, preferences or interactions with political posts. If a user is presented with information that agrees with their current view, they are less likely to be exposed to other information. Therefore, they are not likely to consider different viewpoints and potentially change their opinions.
This idea of reinforcing one’s current view by only seeking out and considering information that confirms one’s current viewpoint is known as confirmation bias.
This leads to users' worldview being narrowed, possibly allowing for less acceptance of diverse political ideas.
Whether users realize it or not, social media has a profound impact on their biases and access to political information - and therefore having great influence over what is being talked about/promoted/pushed in the national political sphere.
Dr. Claire Wofford, professor of constitutional law at College of Charleston, commented that social media companies legally have the power to change the national conversation by banning someone, as long as the company is not discriminating.
“They aren’t allowed to shut somebody down because they are Black, or because they are female, for example, but they are allowed to shut down whoever they want as long as they aren’t doing it for an impermissible reason,” said Wofford.
“Law can only do so much, if we want social media to have less power, we need to use social media less. I mean ultimately it is up to the American public. We are the ones that give social media this much power." - Dr. Claire Wofford
Another impermissible reason would include disagreeing with the viewpoints expressed, she added.
But if the words expressed on social media could incite violence, Wofford notes that there would be no censorship by not allowing them.
"And the fact that they believe Donald Trump incited violence is an absolutely permissible reason" to ban his speech on Twitter, she added.
Ultimately, it is up to users to consume their political information in a responsible manner, but social media companies have the power to limit and control the national conversation.
“Law can only do so much, if we want social media to have less power, we need to use social media less. I mean ultimately it is up to the American public. We are the ones that give social media this much power,” said Wofford.
Ramifications on speech with Trump's social media bans
Following the Capitol insurrection and the banning of Trump from Twitter (and eventually Facebook and YouTube at least temporarily), one researcher noted that this action only encouraged political radicalization on other underground, and often more extremist, sites.
Platform moderation has ignited users to produce extremist content, which can lead to more malicious content or real life violence. The belief that Trump’s First Amendment rights were violated have created more hateful rhetoric on the web.
On two independent sites - thedonald.win and incels.co - users posted threatening, aggressive content toward Twitter and its owner, Jack Dorsey. Users also wanted to make their voices heard about government conspiracy theories, spreading false information on the internet. Since, both websites have been flagged and removed from their domains.
Polarized online communities are becoming more prevalent, with people finding new sites to discuss their political views without fear of being banned.
Riley Duncan, a campaign staffer for Summerville Mayor Ricky Waring, recalled how citizens may be afraid to express their political views on traditional social networking sites following these actions by Twitter with the former president and many of his followers.
“I think we will see less online political conversations,” said Duncan. “Honestly I think people will be scared to speak their mind because they may be banned.”
Engagement with traditional right-leaning pages has significantly decreased since the permanent suspension of Donald Trump. Although, banning Trump did not decrease his following or silence his supporters.
A study found that 65 percent of Americans were in favor of social media companies removing information that seemed to be false or dangerous, while 35 percent of Americans believe that companies should not remove this content.
“I am just as much as anyone not in favor of the horrible stuff on social media. If you want to get at private companies, the way to do that is through legislation, not through the Constitution.” - Dr. Claire Wofford
Jeremy Turner, College of Charleston’s student body president, discussed how Trump’s ban from Twitter may create unforeseeable issues in the future.
“I could potentially see a slippery slope where yes, personally, the things that were said were inappropriate and were deserving of his platform being temporarily shut down,” said Turner. “But I definitely see the potential of similar arguments being made for any leader.”
In order to move forward, there must be a change to the existing structure between social media companies and the government.
Wofford said that change is possible, but it may be a tedious process. The only real way to change the speech culture would be through legislation that puts more responsibility on social media companies to discourage the misinformation rather than trying to change the freedoms granted in the First Amendment.
Wofford thought that a way to curb social media’s power is by holding social media companies financially liable for the consequences that come from the speech they allow or the misinformation they spread.
Wofford said that change is possible, but it may be a tedious process.
“I am just as much as anyone not in favor of the horrible stuff on social media,” said Wofford. “If you want to get at private companies, the way to do that is through legislation, not through the Constitution.”
by McLean Golden