Whatever You Think of Trump’s Bans – It’s Probably Too Simplistic
In the wake of Donald Trump being finally banned by Twitter and Facebook, people seem to be filing into two camps: either the two social media giants are violating Donald Trump’s first amendment rights or the companies are private companies and thus can ban whomever they want. Our stances on what may or may not be done is driven mainly by our opinion of Donald Trump and will likely flip if our opinion flips of whomever else is banned. However, both of these views share one thing in common: they are overly simplistic.
The US Constitution is a social contract between the people and the government it established, the first written one in the world, which sets the bounds of what that government can and cannot do. However, one of those things which it may do is establish property rights, which means that even those property rights may be regulated by the Constitution; the government lacks the power to create personal fiefdoms where citizens’ rights simply fade into oblivion. Courts have made rulings on the first amendment as it applies to private property and it is not clear cut to one side or the other.
It began with a case called Marsh v. Alabama in 1946. The case involved individuals who were doing religious pamphleting in the business district of a corporate town – which means the entire town was privately owned by a corporation. The court ruled that because the corporate town was so similar to a municipal town, that the first amendment rights of the pamphleteers existed and the corporation could not prohibit their distribution. Subsequent decisions tended to not be as friendly and have been more limiting, even in states which consider their guarantee of free speech to be above and beyond that of the US Constitution’s guarantee. However, even then, private property rights are not absolute, but rather multiple tests have been set up to determine whether or not private property rights trump freedom of expression rights or not.
For example, in Lloyd Corp v. Tanner in 1972 the court made some varied observations to establish tests. One of their decisions was that because public streets, sidewalks, and such have such a historic connection to free speech activities that states and municipalities lack the right to delegate the decision of what to allow or disallow to private entities. However, upon reconsideration, they also decided that because the property inside the mall itself was private and did not exist primarily for any such activities and so the courts could limit free speech activities that were disruptive inside the mall itself.
Other courts have made distinctions between whether areas were open to the public or not in addition to this.
The truth is that the specifics of what these social media giants are allowed to do will ultimately have to be decided by a court in the processing of a lawsuit, and it would do us all good if Donald Trump filed that lawsuit. It’s unlikely that any court would side with him in the matter, because his speech was not constitutionally protected because it was incitement, but they would establish a test that would be seen to govern social media.
To be considered in this is the fact that these social media giants are open to the general public; individuals can view lots of public content posted by members without ever joining the site and individuals over 13 years of age are generally admitted to post, or as courts have previously decided: it has open access to the public. This differs from more traditional media which were run from a stance of limited space which the papers created and only employees who went through extensive interviews were permitted to write for, and in that employee-employer relationship. Modern outlets such as Medium may have a harder time creating that distinction.
Social media is also has had long enough of a history to establish it as a major means, if not the major means, that public discourse happens in modern society. People may go to social media to give highly polished accounts of their personal lives, their families, and even their food; or they may go there to watch cat videos or discuss the media; but discussing and arguing politics, sharing news stories, and trying to sway others to their cause is a major part of what goes on in social media and these two sites in particular. Facebook’s ads were able to play a major role in the 2016 election precisely because of how important it was to how individuals learned about events in the world and consumed their political discourse. Unlike the mall owned by Lloyd Corp, it cannot be said that their primary purpose is for something other than the expression first amendment rights. It is a major, if not primary function of their businesses and they are too central to the national discourse to wantonly exclude people.
In addition, a court ruling could establish the right to due process – which is something both Facebook and Twitter woefully lag behind in. I primarily use Facebook, where you can report clear violations only to get a message that it doesn’t violate their rules; then file an appeal which says nothing more. If you are reported and they decide to remove things, then you also can click to appeal and you get the same process. While this often moves it from an automated process to a live person, at no time in either case are you allowed to give any information regarding the violation at all – or make your case as you will. Facebook doesn’t want to spend money on moderation more than they absolutely must. However, I have seen numerous racist, sexist, and transphobic memes that don’t violate their rules. I have seen bald-faced Anti-Semitism played through Rothschild memes and the like just ignored by Facebook. After the slaughter conducted by Kyle Rittenhouse where Mark Zuckerberg promised to remove any statements supporting his racist murder spree, I reported several explicit examples which were deemed both on the report and appeal as being not against their rules.
Several users on the left are afraid to use the word “white” and so write out “whyt” or “wh-te” because saying something such as that white people have privilege have gotten people bans. Much more antagonistic talk toward other races get no such protection. I have been banned for the words “fuck off, Nazi” on more than one occasion, making up the bulk of my Facebook violations, but later found out that simply using the words “fuck off” don’t violate their terms. Nazis get special protection. I recall one day that I searched for public posts with the tag #slaycommies and reported each for threats of violence only to get every single one rejected. I’ve also been warned, it was my first for racial insensitivity, for posting two pictures, side by side, of a Trump meme going around and the actual Nazi poster that was slightly photoshopped to change the clothing and text – the image of the Nazi poster got me the warning with no concern of context. Several have reported that their reports of harassing comments has gone ignored only to find themselves banned for sharing those same comments directed toward them.
Twitter, to it’s credit, will allow you to show other tweets to provide context for content when reporting – and I cannot speak to when you have been reported. I’ve sent some very nasty things toward President Trump’s private account: taunting him that his daughter will never have sex with him and openly mocking his penis size with a gif from the South Park Chimpokomon episode stand out among it – but I’ve never been in the hot seat on Twitter.
But due process before removing rights is something that should be expected of social media companies that control so much of the conversation.
On the other side, these companies would be expected to be able to have some rights in regards to moderation – you cannot simply post a flood of inflammatory material as it is not only toxic to the brand, but discussion as well. Letting white supremacists go around threatening everyone they come across or posting racist, sexist, homophobic, transphobic, etc content can be a problem and something that courts would likely find that social media has a right to protect against. They certainly would not be expected to host content that they reasonably believe to make them parties to the furtherance of a crime – such as with Donald Trump’s tweets. Repeated violations would be expected to result in bans or other limitations on accounts. Courts may also rule that you have to use your real name as opposed to hiding behind anonymity to mimick a spacial world environment.
Of course, this raises the issue that have been raised in this from progressives to Angela Merkel – should social media companies be making these decisions? Ultimately, the bigger issue is that the government has shirked away from regulating any of it and times do exist when some action is necessary. The government could determine that given the nature of the sites, they need to either use imminent domain to take ownership of the sites or send regulators, like FDA regulators go to test food. Yet, few politicians would dare even express a desire to go that route as they would immediately be denounced as authoritarians trying to crack down on speech critical of themselves. Donald Trump would certainly jump on such a chance, and exercise the authoritarian tendencies that people would fear, but someone like Joe Biden would rather be less obvious about their intentions and pass a new domestic terrorism law to crack down on his opponents behind the scenes. For you Trumpers, Biden is going to crack down on leftists more than you.
The bottom line is that Americans do have some first amendment rights with social media and the social media companies have some property rights. What exactly they are will need to be determined by courts and it is going to be somewhere between these two extremes.
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