By Natalie Keller, Law Clerk
A couple of months ago I was asked to draft an article about Trump’s “Twitter ban,” whether that ban was “legal” and what it meant for big Tech generally – (http://mchattielaw.com/social-media-ban/). I tried my best to write an unbiased article, arguing both sides, but by the time it was posted, the ultimate conclusion was the opposite of what I had reached. Speaking up for myself, I was invited to write a response and to restate my conclusion.
Now, a few months into the Biden administration, the question of Trump’s Twitter ban seems a long time ago (did that just go away?), but the power of big social media sites is still in the back of many people’s minds. Is what they are doing censorship, was the Trump ban justified, did they impact on the election and are they above the law?First, what do I and the Firm agree on, this is not a First amendment issue – which protects you from being censored by the government, not private social media companies. No one is forced to be on social media, and when a user voluntarily signs up for a site, they agree to the terms of service and the “vagaries” of how that company operates its site(s).
With that said, what do we disagree on:
For purposes of this “retort,” we’ll focus on Twitter. Twitter terms of service include:
“You may not promote violence against or directly attack or threaten other people on the basis of race, ethnicity, national origin, caste, sexual orientation, gender, gender identity, religious affiliation, age, disability, or serious disease. We also do not allow accounts whose primary purpose is inciting harm towards others on the basis of these categories” and “You may not use Twitter’s services for the purpose of manipulating or interfering in elections or other civic processes. This includes posting or sharing content that may suppress participation or mislead people about when, where, or how to participate in a civic process. In addition, we may label and reduce the visibility of Tweets containing false or misleading information about civic processes in order to provide additional context.”
And
“There is no place on Twitter for violent organizations, including terrorist organizations, violent extremist groups, or individuals who affiliate with and promote their illicit activities”
President Donald Trump was removed from Twitter on January 6 after the violence that erupted in the US Capitol. He was first temporarily banned after posting a video that addressed the rioters and said he “loved them” and that they were “special.”
After that ban was lifted, Trump posted two tweets before being permanently removed from Twitter. Those tweets were
“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!!!” and
“To all of those who have asked, I will not be going to the Inauguration on January 20th.”
In a statement explaining why Trump had been banned from the platform, Twitter said:
- “President Trump’s statement that he will not be attending the Inauguration is being received by a number of his supporters as further confirmation that the election was not legitimate and is seen as him disavowing his previous claim made via two Tweets (1, 2) by his Deputy Chief of Staff, Dan Scavino, that there would be an “orderly transition” on January 20th.
- The second Tweet may also serve as encouragement to those potentially considering violent acts that the Inauguration would be a “safe” target, as he will not be attending.
- The use of the words “American Patriots” to describe some of his supporters is also being interpreted as support for those committing violent acts at the US Capitol.
- The mention of his supporters having a “GIANT VOICE long into the future” and that “They will not be disrespected or treated unfairly in any way, shape or form!!!” is being interpreted as further indication that President Trump does not plan to facilitate an “orderly transition” and instead that he plans to continue to support, empower, and shield those who believe he won the election.
- Plans for future armed protests have already begun proliferating on and off-Twitter, including a proposed secondary attack on the US Capitol and state capitol buildings on January 17, 2021.
So, let’s break it down, from a contractual perspective. What exactly did he say that breached his agreement with Twitter:
It is my opinion that “They will not be disrespected or treated unfairly in any way, shape or form” breached: “Tweets containing false or misleading information about civic processes” because the disrespect and unfair treatment being referred to includes the claims of election fraud and the attempts from Twitter to flag and remove tweets that make these claims. These are the claims that caused to Capitol riot, thus doubling down on its causes.”
It is my opinion that “American Patriots” breached: “individuals who affiliate with and promote their illicit activities” because Trump’s base that stormed the Capitol include members of recognized extremist groups like the proud boys and neo-Nazi groups, and by calling them American Patriots he is bolstering and supporting the violent actions taken by them to “not be disrespected or treated unfairly”
It is my opinion that “, I will not be going to the Inauguration on January 20th” breached: “Tweets containing false or misleading information” because not attending the inauguration, something that has not been done since the 1800’s when a Southern Johnson did not want to support Civil War General Grant, furthers the idea that Trump does not believe and will not accept the results of the election, again the idea that caused the violence.
Therefore, as Trump had to have agreed to Twitter’s terms of service when creating his account, he too is subject to being moderated by the platform. For those arguing that Twitter is stretching its rights in order to justify this ban, Twitter is protected in their right to do so by Section 230 of the U.S. Communications Decency Act. Twitter and other platforms have actually been removing harmful speech and deleting accounts for a while now. After outcry from the public, Twitter removed thousands of neo- Nazis and people with Nazi sympathizing rhetoric, something that probably does not have many objectors. However, this “deplatforming” is actually much more important that just deleting hate speech from the public eye. Platforms like Twitter and Facebook are so big that they actually provide a huge base for groups like Neo- Nazis and the proud boys to spread their message and recruit. While there are sites like parlor and 4chan that better lend themselves to groups like this, mainstream people do not just sign up for those sites. Instead, their attention is caught on broad platforms such as Twitter, and from there can be recruited and inspired to join niche sites. Essentially, activity on these sites is funneled down from, huge platforms like Twitter. Thus, without access to Twitter, these groups have a much more limited ability to recruit.
So, why is deplatforming Trump important? While it can be argued without end whether or not Trump is a racist or white supremacist and certainly NOT all Trump supporters are, the fact is that white supremacist groups like neo-Nazis and the proud boys ARE Trump supporters. Even if we move forward as though support from these groups is for unfounded reasons, it is still a fact that cannot be disputed. In 2016 the leader of the alt-right Richard Spencer was even seen performing a Hitler salute and saying “Hail Trump”. While Trump may or may not have direct ties or contact with them, these historically violent and hateful groups being supporters of the former President puts a greater weight on the things that he shares on social media. For example, on January 6 Confederate flags and shirts that said “6 Million wasn’t enough” made their way into our Capitol building. President Trump’s video calling these people special and telling them he loved them subsequently meant that he was expressing approval toward his supporters, including the neo- Nazis and Proud boys. This kind of approval emboldens these groups and insights them to fight to keep someone who they deem as an ally in power. Without the public platform of Twitter, Trump cannot send messages of approval to groups like this, nor can he directly or indirectly embolden them or their causes. Forcing this kind of supporter to move to the more niche platforms that I mentioned before, creates a narrower spread of false information such as claims of election fraud and greatly lessens that chance of so many people buying into the claims and banning together for a mass storming of government property.
However, we do need to “square” what they do allow. For example, this remains on Twitter:
In my opinion this tweet is heinous and should be removed for moral reasons, but has notable differences to Trump’s. While Khamenei has had tweets flagged and removed, like a direct threat to Trump’s life, he remains on Twitter and the tweet above remains up and unflagged. This is troubling, but I think that it is important to break it down further. To start, it is worth mentioning that Trump had about 87 million more followers than Khamenei who has under 1 million followers. Even though 880,000 is still a lot of people to influence, to put his visibility into perspective, the rapper who has been dead since 2019 Juice Wrld who rapped about “sippin lean” and being with women while “faded” currently has double the number of followers as the Supreme ruler of Iran. So, the impact and urgency of removing this hateful tweet is much different. The Embassy of Israel also responded to this tweet with a meme from the movie Mean Girls, making almost a joke out of this tweet and displaying that it was not seen as an actual threat. Another aspect of this tweet that makes it different than Trump’s is that Khamenei is not the leader of the Palestinians who were out protesting at the time of this Tweet. Instead, he was showing support, in a horrific and damaging way, for the protests against the Israeli blockade of the Gaza strip that was a tactic to starve out the citizens inside the Gaza strip and force Hamas to release control of it to Israel. Conversely, Trump was the leader of the movement that stormed the capitol, as the rioters sought to keep him in power, and looked to him for guidance and leadership. Though I think that this tweet is absolutely horrid, I think another layer to this is the complicated nature of the Palestine- Israeli conflict. While I think that Twitter should be taking a harder stance against hatred like this, removing tweets that deal with this ongoing conflict could be seen as taking sides in an extremely controversial and unsettled topic that has thousands of years of history and countless layers that would cause violence regardless of a tweet. On the flip side, facts showed that the election result were clear cut and the spread of false information was what was evoking the violence in America. So, had Trump not tweeted about election fraud and conceded to the results of the election, this violence could have been avoided.
As for the legality of it all, while it has its problems, Section 230 is actually a very important aspect of protection for social media companies, and without it many would likely fail. This is because it would be forced to either over moderate, or not moderate at all, to avoid liability claims and the cost of the inevitable constant litigation regarding this moderating would crush the small companies and inundate the large ones. Trump’s strong opposition to section 230 comes from its protection of tech companies from being sued over removed posts or accounts due to bias. This part of section 230 is important to many companies as they try to make their sites a safe place for their users. For example, the website Reddit has moderators for almost all of their thousands of subreddits. These moderators can choose to reject a post or comments from being posted if it does not comply with the site’s guidelines. This is important because often times Reddit threads become heated arguments that result in name calling, threats, and sometimes even calls for violence against users. Moderators are allowed to reject posts like this in order to ensure the safety of its other users and create a community where people can return without fear. Because of Section 230, users whose comments are not accepted or who have their accounts taken down due to various policy infringements cannot sue Reddit for infringing on free speech or having bias against them for one reason or another. In fact, Reddit recently removed 15 of its most toxic subreddits and found that the amount of hate speech on the site went down significantly. If these posts and accounts had remained up, the site could have chased away many more users who did not want to be subjected to hate speech and threats, greatly hindering their business. If not for this section, Trump could sue Twitter stating bias against Conservatives or Republicans and possibly get his twitter restored or a large pay out. However, on the other side of things, without this section, members of Congress, for example, could sue Twitter for allowing Trump’s post to stay up that they claim incited the violence and put their lives at risk. Clearly, Section 230 is a very complicated and problematic law that cannot just be removed or modified without a great deal of thought and consideration. Removing this section would be just as full as contradictions as the law itself.
As for social media giants being “above the law”, this is a tricky concept because the laws currently in place are allowing for the illusion of lawlessness within the social media sector while the companies are actually operating within the constraints of the law. Without Section 230, the social media companies would be subject to litigation, but that does not mean what they did would have been illegal. Nobody has a right to social media. The same way that a private business can have a “No Shoes, No Shirt, No Service” policy, a private social media company can have their own policies. According to the Civil Rights Act of 1964 a private business can refuse service to anyone as long as it is not because of their “race, color, religion or national origin”. Though it could be argued that the ban was done with bias against conservatives, something that can be opposed due to the points given by Twitter above, it is worth mentioning that political views are not listed in this law. This may seem like a technicality, but it is also worth noting that sexual orientation is not listed in the law and courts have held up that services can be refused to LGQBTQ+ because of religious beliefs surrounding homosexuality. In those cases, the Civil Rights act did not protect against discrimination because that type of discrimination is not listed in the act. Another thing our previous article mentions was that Twitter refused to hand over stored content due to the Stored Communications Act. This act keeps private electronic correspondence from having to be handed over by tech companies. “Private” has been held up in court to include posts posted on accounts that are not set to public settings. This also protects employees from being forced to provide passwords to their employers or being forced to hand over posts to their employers. This keeps Twitter from being compelled, even by courts, to provide posts that they have stored. However, this does not apply to law enforcement, who can compel companies to release this information for cases such as criminal proceedings. However, the defendants in said trials cannot compel the sites to release information even if they may have information favorable to the defendant’s case. This aspect is deeply troubling, but the idea that Twitter cannot release your stored data to other private entities is something that provides a level of security and privacy to its users that is vital to the business. So, if you were to delete a post that you were not proud of, Twitter cannot years later provide that post to a private entity during a lawsuit. This is something that can definitely be argued as harmful, but as a user of these websites can also come as a huge comfort, especially in the age cancel culture. Essentially, while the morality of this law could definitely be questioned, Social media websites are not acting above the law, because they are, in fact, following the laws, just using them to their best interest.