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.