Trump’s Ban From Twitter and Facebook Gives Old Freedom of Speech Issues New Life

After the Capitol was stormed on January 6th by supporters of President Trump, social media platforms took action against the 45th president, blaming him for the incident. Trump was indefinitely banned from Facebook, at least until his term ended, suspended from twitter indefinitely, and his campaign store, hosted by Shopify, was taken down, just to list a few examples. Twitter’s initial statement from their first suspension of Trump’s account best sums up the reason so many tech companies banned Trump:

“As a result of the unprecedented and ongoing violent situation in Washington, DC, we have required the removal of three @realDonaldTrump tweets that were posted earlier today for repeated and severe violations of our Civic Integrity policy.”

“This means that the account of @realDonaldTrump will be locked for 12 hours following the removal of these Tweets. If the Tweets are not removed, the account will remain locked. Future violations of the Twitter Rules, including our Civic Integrity or Violent Threats policies, will result in permanent suspension of the @realDonaldTrump account.”

Without passing judgment on whether these platforms were justified in banning Trump, a new existential threat is presented to protecting free speech in the age of the internet.

The Existing Mess of Protecting the First Amendment Online

 In his 2009 article, Barry R. Schaller succinctly states the issues the First Amendment faces in the age of the internet and social media. The social media titans of Facebook and Twitter are privately held companies and can regulate what gets posted on their platforms; they do not have to bow to the First Amendment the same way the Federal and state governments must.

Simultaneously, there is a complex interplay between the government and the users of social media platforms. These users, and the social media platforms they use, including blogs like JOLT, are still constrained by laws like copyright and libel. Users can post anonymously though, meaning in some cases the enforcement of laws like copyright or libel can run up against a user’s right to privacy. On the other hand, 47 U.S.C. § 230 makes it so that courts may not be necessary, and platforms like Twitter or Facebook can remove content they find to be in violation of their terms of use without any fear of civil liability. To further complicate the issue, when does the private space become public? When a platform is titanic like Facebook and Twitter, and becomes the defacto way most people communicate ideas and information, is it still a purely private space? The recognition of private spaces and entities as quasi-public is not new within American jurisprudence. The staggeringly broad sector of property law has decisions like Pruneyard Shopping Center v. Robins, which can cause real private spaces such as malls to take on a quasi-public character that bars them from regulating speech the same way a purely private space would be able to. Such a theory of law stands in conflict with 47 U.S.C. § 230, even if it has not been designed for application to the internet.

Can public figures, with the President of the United States being the case of first impression, be blocked from these ubiquitous speech platforms for actions stemming from outside the use of said platform?

Compounding the Issue

Into this quagmire the internet has made for freedom of speech, the recent actions by Twitter, Facebook, and the like, exacerbate the issue. Can public figures, with the President of the United States being the case of first impression, be blocked from these ubiquitous speech platforms for actions stemming from outside the use of said platform? Current case law seems to lean towards yes. In Federal Agency of News v. Facebook, 432 F.Supp.3d 1107, 1119-121 (N.D. Cal. 2020), FAN sued Facebook for deleting its Facebook page for violating the platform’s terms of service, where Facebook accused FAN of using its platform to interfere in the 2016 presidential election. The court found Facebook immune from First Amendment arguments for not being a government actor or a public forum, and immune from civil liability because for FAN’s claim to succeed it would have to treat Facebook as a publisher exercising its right to censure its content, which is barred under 47 U.S.C. § 320. Twitter is not a government actor, nor has it been ruled a public forum. Therefore, under Federal Agency of News v. Facebook’s reasoning, Twitter appears to be immune from First Amendment arguments and can point to violations of its terms of use for suspending Trump’s account.

For Shopify and Facebook though, the terms of use defense is much thinner. These platforms were not the primary method Trump used to communicate his opinions contesting the 2020 election results in the weeks before the incident at the Capitol. More to the point, President Trump’s last significant public communication came from his January 6th DC rally speech where he asked rally attendees to walk to the Capitol, not from posts on Twitter, Facebook, TikTok, or any other social media platform. To present a new perspective, Trump’s online use of platforms like Twitter to advance his views went years without seeming to violate any terms of use clauses. For example, in the wake of the 2020 election, whenever Trump would assert his victory or the existence of massive voter fraud, Twitter would add a tag to Trump’s tweets indicating the tweets were disputed or misleading. Clearly, Twitter took great enough issue with Trump’s tweets then that the platform felt the need to contradict them, but he was not banned. Ultimately, Trump was censured online for his behavior offline.

Regardless of Twitter’s justification for banning President Trump, these results should be concerning. The First Amendment is already in a tangled web where the internet is concerned, and Trump’s recent bans and suspensions from his social media accounts shows how few protections there actually are for barring censorship online. The previously alluded to cases that protect free speech in some malls across the United States do not neatly apply to social media platforms on the internet. Some courts have ruled that social media platforms are private spaces, despite how ubiquitous and vital they are for communicating ideas in the modern age. Trump clearly had his right to advocate his position revoked on many social media sites, resulting in a serious hinderance to his ability to speak freely. Beyond asking ourselves if and how the First Amendment should apply to social media, we need to ask ourselves how proximate our offline behavior needs to be before we begin getting punished for it online. Needless to say, these issues are not going away, and Trump’s treatment in the wake of the Capitol’s seizure shows we need a clear cut set of rules now more than ever.

Alec Suttle