Some Thoughts On Twitter Pulling The Plug On Trump's Account
Background
First of all, corporationsenjoy First Amendment protections, among other constitutionalprotections. Although some of my friends decry that proposition,given the Supreme Court's current composition, that is notgoing to change during my lifetime. And the First Amendment protectsthe right to refuse to associate with speech one does not like. There is only so much that legislation could do to prevent companieslike Twitter from controlling the speech that they allow.
Second, withdrawing oradapting the section 230 liability shieldis one way to impose limits on platform's adoption orimplementation of their content control policies, perhaps, but thereis no reason to think that any withdrawal that is likely to pass, andthat would be constitutional (because it does not involve viewpointdiscrimination), would be better than the current state of affairs. Moreover, that would be a very blunt instrument that could not easilybe calibrated. I strongly support the principles of section 230,which allow online platforms to decide what speech they will allow ontheir platforms by protecting them against liability for speech thatthey carry (with very limited exceptions). They are not commoncarriers, like USPS or the PSTN's. (Thus, Apple and Googlecould cabin Parler by threatening to deny it access to the App andPlay Stores, and Amazon could deny Parler web hosting services, allon the ground that Parler failed to successfully enforce rulesagainst advocacy of political violence. I find it mind-boggling thatpeople who call themselves conservative" are railingabout the plug being pulled on a platform for the stated reason thatit allegedly fails to block calls for political violence). And theyare not government bodies, which are (largely) forbidden to engage incontent discrimination, and especially viewpoint discrimination, inallowing or suppressing speech. Section 230, both as a legalprinciple but also as a social principle, not only allows platformsto tolerate speech that I find abhorrent, but also allows them toexclude speech that I detest, or speech that I adore.
Third, the drafters of section230 recognized that platforms would have content policies, andconsidered it desirablefor them to have content policies. Indeed, you can't run aplatform without content policies. Anybody who has ever tried tomoderate a discussion group will fully appreciate theseconsiderations. And content moderation is HARD. The periodic COMO"sessions addressing Content Moderation at Scale"explored the difficulties through a series of hypotheticals. Whatbecame clear is that people of good will, even those with relativelycommon policy perspectives, trying to apply even the best of contentpolicies, will get it wrong sometimes - and that is even ifthey have lots of time to evaluate a single statement.
It is inevitable thatdifferent platforms will take different stances about what speechthey will tolerate and what speech they will exclude-in partbecause of the audiences at which they aim.
The Reasons for BanningTrump
Turning to Twitter, and toTrump in particular: Twitter has for many years had a variety ofrules about speech that may and may not be posted to Twitter, whichthey call their trust and safety guidelines. This includes a ban onspeech glorifying or promoting violence; it also includes a ban onfalse statements about the election. (Many years ago I was asked ifI would be willing to be on their outside trust and safety council; Idecided it would not be appropriate for me to do that for a number ofreasons).
I have never been a fan ofsocial media companies trying to assess the truth or falsity offactual statements, or the hurtfulness of opinions and rhetoricdeployed there. The assumption of such a role is likely to lead tothe suppression of voices that criticize the rich and powerful (thatis, those who can afford to hire lawyers to file baseless lawsuits,or who can deploy government power to attack their critics), or onabusive law enforcement officials themselves. But Trump'smisuse of Twitter and other platforms to foment a violent attack ondemocratic elections has taken matters to another level.
In the weeks leading up to theattack by a mob of Trump supporters on the Congress, Trump used bothtweets and other public communications to try to steal the electionfrom his victorious opponents. At the same time, he tried to use hisconnections with officials in several states where he had lost toinduce them to overturn his losses in those states. Then, with hiscampaign of frivolous litigation and threats to state electionofficials having come to naught, he and his mouthpieces escalatedheir attack on democratic elections, encouraging his supporters toengage in a physical confrontation with members of Congress in anapparent effort to delay the certification of his electoral collegeloss. There is every reason to believe that many of the supporterswho tried to storm the Capitol believed that they were acting atTrump's behest,and some analyses suggestthat Trump's language was carefully calculated to encourage thesupporters to use violence. My reading of the language leads me toconclude that the calls for violence were insufficiently expressed tomake them indictable under the standards set forth in Brandenburgv. Ohio, 395 U.S.444 (1969),just as my view is that his threats to Georgia state electionofficials, on a recording,fell short of criminal threats or incitement.
Assuming, as I do, Trumpcannot be held legally responsible for inciting the riot, he wasstill morally responsible for it. And even assuming, as I do, thathe cannot be convicted for these communications, that doesn'tmean that a private company, unbound by First Amendment standards,would be unjustified in deeming them a gross violation of itspolicies against advocating or glorifying violence, and hencetreating them as a proper basis for denying him a platform. Platforms are expected to withdraw the accounts of members of thepublic who repeatedly abuse their access to infringecopyright-indeed, the DMCA gives them a powerful legalincentive to do so. (In my legal practice, I have had to deal withweb hosting services that were considering removal ofconsumer-friendly platforms that were receiving bogus claims othat myclients were hosting defamation or other tortious speech. Despitetheir section 230 protection, they often simply did not want to dealwith the trouble).
In that context, it is nosurprise that a platform cancelled the account of a politician whorepeatedly abused his access to foment a riot. And Trump, after all,is wealthy enough, and remains powerful enough, to use other means toamplify his speech. Indeed, he has one mainstream news channel andseveral smaller ones that are dying to carry his speech.
But, at the same time, Twitterhas allowed exceptions to those rules, and one very prominentexception is that senior government officials, particularly heads ofstate, are given more leeway on the theory that there is publicinterest in letting the public know what such people are saying. As apractical matter, Trump has had almost complete immunity from thesorts of restrictions that constrained other Twitter users. Much ofwhat he has posted was a gross violation of Twitter's rules,but he was allowed to get away with it. Note that Trump's holdon the special exception is due to expire on January 20.
What I think has reallyhappened is that, for a variety of reasons, Twitter decided to takeaway Trump's special exception, and his ban - based on arange of past conduct - was the inevitable result of thatchange of position. Twitter has both taken away the specialexception a few days early, and made its decision retroactive. Considering the way in which Trump managed to use his bully pulpit toincite a violent attack on Congress that was aimed at overturning ademocratic election in which he was defeated, that seems to me to bewithin the range of understandable reaction.
Twitter's Obfuscation
But the reasonsthat Twitter gavefor its decision strike me as laughable - recall he wassuspended for 24 hours, then allowed back on the condition that hedelete certain tweets and stop violating the rules. He did deletethe tweets in question, and to my mind nothing he did after beingreinstated violated their rules. He gave appearance of trying tosatisfy them.
Twitter's blog postexplaining the Trump ban,asserted that two Trump tweets violated their rules againstglorifying violence. But the two posts they quoted did nothing toglorify" violence" What this comes down to is thatTwitter says Trump has been banned because some of his supporters (inunspecified instances) are allegedly reading his post-suspensiontweets in various dangerous ways. And misreadingwhat he said, I might add.
One of the tweets praised hissupporters - the 75,000,000 voters who supported him. Hecalled them patriots. He said they should be respected and shouldcontinue to have a loud voice. That does not encourage violence.
The other tweet said he won'tbe at the inauguration. Yes, a break with tradition, but maybe thebest response is, good riddance!
Twitter says (and some otherreports have echoed these concerns)that there are plans for armed protests and another attack on theCapitol. Thatis of great concern. But Twitter does not say that Trump is involvedin that planning or that he tweeted anything about them. I did noticein passing a report that, after his initial 12-hour suspension waslifted, Trump had retweeted some of those statements. But thereport also said that Twitter had cited those retweets in itsdecision and plainly it has not, so the fact-checking of the reportis suspect. I have not been able to locate the report. And, becausethe Twitter account has been deleted in its entirety, I can'tverify the report (and I have not been able to find any screenshots).
Now, when Twitter justifiesits decisions by relying on tweets that do not, in actuality, violateits rules, it just tends to suggest that what it has done isarbitrary. And that is not useful.
What May Really Be theReasons
It appears to me thatTwitter's official views on Trump's status evolved veryquickly in the past week. Although top executives felt that so longas he was president he should continue to enjoy his specialexception, Twitter staff apparently were very much of a differentopinion, and forcefully so. There was apparently a staff petition,and then a large intra-staff meeting, in which Twitter's topexecutives were raked over the coals by their staff for theirinaction against the Trump account. That may well have mattered.
Additionally, Twitter wasfacing intense pressure on Capitol Hill and in the public arena to bemore forceful about Trump's incitement of the attach on theCapitol, and I believe they were genuinely concerned that, left withhis Twitter account, he might well have used it to incite furtherviolence on January 17 (Q being the 17th letter of the alphabet) andJanuary 20. Not because the two tweets did that, but because the guyis out of control. The explanatory blog post refers to the covertplanning for January 17 and January 20 repeat attacks, and I think itis quite possible that Twitter was worried that Trump might abuse hisprivileges. I wish the company had just said that (comparable toFacebook's explanation) and said that, inretrospect, they had decided that its initial sanction for Trump'sprevious violations of its rules was not sufficiently severe.
Perhaps More CynicalExplanations
First: Both Twitter andFacebook have cut back on Trump knowing that he is not going to havethe powers of the presidency much longer, and that, indeed, both theWhite House and, soon, both Houses of Congress are going to be inDemocratic hands. Just as they went out of their way to propitiateconservatives who claim (falsely) that social media companiesdiscriminate disproportionately against conservatives, while thoseconservatives ran the Senate and the White House,these companies don't want to be adverse to the new power inDC.
Second, and this is a relatedpoint: Trump liked to talk about how much benefit he derived fromhis Twitter account, but the converse is also true: Twitter hasprofited enormously from Trump's account, which createsenormous controversy and hence draws many eyes to Twitter where theywill see ads. A number of people in the tech sector have been sayingthat the situation has simply evolved to the point where the benefitsthat Twitter was getting from hosting @realDonaldTrump were gettingto be greatly exceeded by the costs.
Third: One exception tosection 230 immunity is for speech that violates the federal criminallaws. Some people have suggested that federal law enforcementofficials may have reached out to Twitter to warn that if itsfacilities are used to incite more riots in Washington DC, such as onJanuary 17 and January 20, it might face grand jury scrutiny. Now,to my mind the First Amendment's Brandenburgstandard would likely bar prosecution for mere passive hosting ofprosecutable incitement; the Brandenburgstandard requires not just incitement of imminent lawless conduct,but intentto incite imminent lawless conduct, and passive hosting of speech ofwhich the host is not aware does not involve intent. But thepossible exposure without section 230 immunity, and needing to relyonly on the First Amendment, might well have been a chasteningfactor.
Paul Alan Levy is a free speech litigator in Washington DC