Judith Miller: Is Big Tech violating Trump's free speech?

@realDonaldTrump is gone, for now.

After more than 36,000 tweets in four years, with 88 million followers, the self-described "Hemingway of 140 characters" has been banned, perhaps permanently, by Twitter, his favorite social media megaphone, for what the company said was condoning the deadly riot at the Capitol by his supporters on Wednesday and preventing him from inciting further violence.   

Calling Twitter’s decision, which followed a temporary suspension by Facebook, "absolute insanity" Donald Trump Jr. tweeted that Twitter’s life-time ban of his father meant that America was entering "Orwell’s 1984." "Free speech no longer exists in America," he tweeted.

Hyperbole notwithstanding, Twitter and Facebook’s decision to deny Trump access to his accounts has divided free speech advocates. It is not only likely to make the internet an even more partisan place, but also focus attention on whether a small group of Silicon Valley-based social media companies or "corporate autocracies," as the New York Times called them, have too much power.

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Finally, their decision to exile Trump at the end of his divisive, tumultuous presidency is likely to trigger greater pressure to repeal or amend Section 230 of the Communications Decency Act, which protects Twitter, Facebook and other social media companies and internet providers from being legally liable for what their users’ post.

While these issues are complicated, there is widespread agreement among First Amendment scholars and free speech advocates on one point: as a private company, Twitter has every legal right to ban even President Donald J. Trump or anyone else from its site. Though his defenders decried Twitter’s ban as a violation of the "First Amendment," Twitter’s action was legal. "The First Amendment applies only to governments," said Geoffrey Stone, of the University of Chicago. "It only prohibits government censorship, not decisions made by private businesses."

But even if a company like Twitter is within its legal rights to ban the president, should it have done so? Here legal scholars and pundits are deeply divided, and the issues involved become more complex.

Trump critics argue that banning him was entirely appropriate, if not long overdue. Free speech advocates like Floyd Abrams, George Freeman, Ted Boutros, Lawrence Goldstone, Bruce Rosen and others maintain that even though the First Amendment strongly protects inflammatory speech on public issues, speech that is intended to incite imminent lawless action is not necessarily protected and that prosecutors could cite considerable evidence that this is precisely what Trump did.

Floyd Abrams, who defended me when I went to jail for three months rather than disclose a source’s identity, said that what Trump did was tantamount to yelling fire in a crowded theater when there is no fire. "Taken together with everything that Trump said at the rally," Abrams said -- his preposterous charge of "election theft," his call for a march to the Capitol that he would supposedly lead, his warning that he was "not going to let them do it" and the "need to have strength," coupled with even more explicit threats by others authorized to speak at his rally, such as Rudy Giuliani’s endorsement of the need for "combat" – all of this suggests that Trump "could legitimately be accused of inciting violence," Abrams said.

"Trump was very clever in not explicitly asking for violence, but hinting at it," said Lawrence Goldstone, the author of several books on the constitution. "But when violence actually happened, and he did not immediately repudiate it, he lost the benefit of the doubt."

George Freeman, a former lawyer for The New York Times who now heads the Media Law Resource Center, said that at his rally and in tweets and statements before Wednesday’s deadly riot, Trump had specified "a time and place for the action," predicted it would be "wild," and exhorted his supporters to show "strength," which implied physical action.

At least some Justice Department officials apparently agree. On Thursday, Michael R. Sherwin, the top Federal prosecutor in D.C., confirmed to the Washington Post that the government would be investigating whether criminal charges should be brought against "all actors" who may have "assisted, facilitated, or played some ancillary role" in the attack on the Capitol, including speakers at the pre-riot rally.

Don’t hold your breath, though. Such cases are extremely difficult to win, as Geoffrey Stone, Paul Alan Levy, Eugene Volokh, and others argue.

It would also be unprecedented to bring such an action against a sitting, or even a former president. And while Trump foes may be thrilled by Twitter’s decision first to suspend, then temporarily restore, and then permanently revoke Trump’s tweeting privileges, those decisions, too, could backfire politically by focusing public attention on the enormous control over essential platforms for speech and public debate that Twitter, Facebook, Google and Apple now wield.

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Republicans have long complained about Silicon Valley’s tyrannical control over public discourse and the fact that a handful of unaccountable companies, as Kate Ruane, a senior legislative counsel for the American Civil Liberties Union, told The New York Times, have become "indispensable for the speech of billions."

Conservatives have also accused Big Tech of discriminating against conservative views and blocking posts based not on their firms’ ethical standards and guidelines, but on ideology. (YouTube, which Google owns, for instance, has long blocked a video I recorded several years ago about whether we were "lied" into the war in Iraq.)

But liberals, too as well as political independents are increasingly concerned about the impact of digital concentration on free speech. "It is disturbing to have private largely unaccountable companies controlling access to such large swaths of public discourse," said Lyrissa Lidsky, a First Amendment expert at the University of Missouri.

Twitter’s decision to deny Trump a platform – just as he is losing power and after enormous internal company and external political pressure (i.e.: Michelle Obama called for Twitter to ban Trump after Wednesday’s mayhem at the Capitol) – can only increase Congressional scrutiny of the digital giants’ policing of content posted on their sites.

This, in turn, has intensified focus on Section 230, which Congress initially enacted to protect the social media companies from being sued into oblivion when the digital world was young.

Critics on the left and right, among them, Trump, now argue that the companies no longer need or deserve such protection, that they have become virtual monopolies with unchecked power to silence dissident voices and crush free speech. Section 230, they argue, should be repealed, or at very least revisited and amended.

That, too, warn scholars like Stone, may prove challenging and counter-productive. While the government and much of the public want social media companies to prevent their sites from being used to promote pornography, sex trafficking and other criminal activity, terrorism, or political violence, the more they control content, the less free-wheeling public debate on their sites may become.

"There is also the issue of scale," warns Lidsky. "Even with the best intentions, how can you monitor content posted at millions of posts per second?"

There are, of course, other ways to dilute the Internet giants’ enormous power -- such as granting newspapers and other distributors of content the same libel protection enjoyed by social media, or by exploring ways to use the nation’s withered anti-trust laws to break them up.

But such steps should not be taken quickly, lightly, or in the heat of the current political moment.

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When tempers cool, Congress should look long and hard at Section 230, at the enormous power social media now wield, and how best to ensure that in checking the social media’s Twitter’ and Facebook’s enormous influence, the government does not usurp the internet’s content policing authority.

For far worse than banning Trump from Twitter would be enabling the next Trump to ban his own rivals and foes.     

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