The free speech slippery slope: of trolls and social media bans
Both the presidencies of Donald Trump and Barack Obama relied on Twitter and Facebook to rally their supporters and promote their ideas. However, their goals were vastly different. While Obama used his online presence to spread relatively messages of hope that reinforced the positive tone of his presidency, Trump chose a different path. From his campaign trail as a candidate till the end of his presidency, Donald Trump chose negative rhetoric, targeted at rallying support from right-wing Americans using divisive language in his quest for popularity.
Despite carrying on with this dangerous style of communication as a holder of the highest political office in America, for much of his presidency, social media platforms didn't shut him off their networks until recently. Precisely after the events of January 6th, when a band of right-wing activists attacked the Capitol Hill leaving five people dead and dozens more, injured.
Twitter argued that Trump continued to violate the company’s policies and regulations on the effective use of its platform. But as with anything involving big picture politics, the debates have been largely two-sided. While some individuals have hailed Twitter’s action, critics feel that it is a step towards a slippery slope of censorship, an attack on democracy and a violation of the Fourth Amendment, if you may.
Depending on how a person interprets the issue, there are two supporting regulatory references to examine Twitter's actions by American law: the Fourth Amendment and Section 230. Technically, Twitter is protected under Section 230; hence, it was not necessary to take a tyrannical approach by banning President Trump. However, the Fourth Amendment also gives organizations like Twitter the right to enforce their policies as a private company. Although Twitter’s action is supported by its internal policies, the question of whether it went a step too far, is perhaps a moral one.
Section 230 protects platform owners from the actions and activities of their users. The principle behind the regulation was to encourage information sharing and creativity. Although the legislation faces stiff opposition today, it remains a critical provision for protecting social media platforms from liabilities. With the application of Section 230, Twitter is not liable for any information shared by Trump. This means like any citizen Trump retains the right to free speech and expression. So if Twitter is protected by section 230, so why did it ban Trump?
To answer this question we need to go beyond section 230. The decision by Twitter was largely influenced by its internal policies and regulation that emphasized safety and peace in the virtual community. One of Twitter's terms of use asserts all its users must ensure that shared content is not harmful. As provided for in the Fourth Amendment, enforcing this internal regulation by banning or removing malicious content, sounds well, fair enough. The real question now is, what are the parameters for determining what "malicious" content? And who gets to say, what is what?
Many studies have been conducted on the role of social media in enhancing free speech and the impact of their dominance in controlling the flow of information. Social media sites’ dominance is a major issue of contention when it comes to information flow. Many people have become very reliant on social media sites like Facebook and Twitter as a window to the world to the extent that they may be exposed to manipulation. As explained by Wakabayashi and Hsu, technology companies continue to develop alliances that will give them a monopoly in the industry. With immense power, social media sites like Twitter will retain the ability to control what is shared on their platforms. This is a dangerous occurrence that will not only deny people the right to communicate but will also impair the application of the provisions of the Fourth Amendment.
The legality of free speech is protected by the Constitution, under the Fourth Amendment. Following the provisions of free speech and expression, it is unconstitutional for social media sites like Twitter to have unmetered power over free speech. Within a legal framework, Donald Trump ban is a classic example of the bullish control by big tech organizations. While it may have catalyzed the actions of the protesters, there is no clear indication that Trump’s message was the primary cause of the Capitol Hill unrest. Admittedly, Trump's online tone and use of language could be inferred or suspected, printed screenshots of his tweets cannot hold up in a court of law as evidence.
The other question we ought to ask ourselves is why it took Twitter so long to ban Trump. In the early stages of his presidency, Facebook and Twitter leveraged Trump's popularity to sell ads and grow market share. The convenience of the ban at the end of his presidency only reflects, big tech companies only choose to take action, whenever it suits their needs. It can be argued that Twitter and Facebook no longer benefited from Trump as an outgoing president; hence banning him cannot have any major financial implication on the business. In fact, the opposite reaction may be the case
Undeniably, Social media platforms like Facebook and Twitter are businesses with goals and objectives to dominate their markets. Like traditional businesses, social media platforms would follow policies when it is convenient for them, then flaunt them when it doesn't. One example in recent memory is Facebook's Cambridge Analytica scandal of 2018. The following year, American tech blog The Verge, published an essay on the secret life of Facebook moderators, who are often employees of third-party companies working under abysmal conditions.
Another factor that could explain the delay in banning Trump from Twitter is the ambiguity of the freedom of speech and the provisions of Section 230. While social media sites are protected by Section 230, it does not mean they cannot control what is shared on their platforms. Under the law, free speech can be curtailed if it causes public unrest or safety issues, as was the case in Capitol Hill. Thus, law enforcement agencies can pursue the issue and charge the perpetrators in a court of law. Similarly, social media sites can ban users who instigate violence using their platforms. However, they have to be cautious on what to control due to the provisions of the Fourth Amendment that protect free speech. The unified approach used by major social media sites like Twitter and Facebook to ban Trump is an indication of the alliance in the industry that these big tech companies use to exercise their power.
The introduction of the Digital Services Act (DSA) and Digital Markets Act is (DMA) meant to create a safe and open digital space for all users. It is expected that the introduction of DSA and DMA will level the playing field and catalyze innovation and competitiveness in the digital world. While these policies are well intended, there is the challenge of the personal interests of social media platforms. Due to competitiveness in the industry and the need to fulfil stakeholder needs, it is not certain that social media platforms are going to stick to the regulations – in fact, it is highly unlikely that these regulations will be followed to the letter.
The regulation of social media is something that is shunned by many. Social media has been viewed as a medium of free speech and an anchor for democracy and its regulation will impair important transformations attained over the years. However, these sites can be abused by leaders, as seen in numerous instances in America and other parts of the world. Dictators in various parts of the world, especially Africa have relied on social media to bully and manipulate their people. Besides giving bad leaders an opportunity to manipulate people, social media is a conduit for programmatic advertising. Facebook’s primary source of revenue is advertisement and it uses its customer’s data to run ads against their likes, interests, and behaviours. Social media sites like Facebook have become monopolies in their niche markets making it difficult to regulate their activities. Such monopolies control the behaviour and actions of their users. Consider the case of Facebook and Cambridge Analytica. Although Facebook was aware that data was being misused, they chose to keep quiet and enjoy the profits.
Social media continues to be a major communication platform of choice for many users. There is a general perception that social media sites offer an opportunity for users to express their views and opinions on social, economic, or legal issues. However, it is imperative to consider that this freedom of expression has some limitation if the Trump ban is something to go by. Although social media sites are protected under Section 230 from liabilities, they reserve the right and power to enforce their internal policies as provided for under the Fourth Amendment. Moreover, there is increasing attention towards the regulation of social media sites to develop a fair playing ground for all digital service providers and ensure that they remain safe. The DSA and DMA are meant to improve the usability of digital services but in a more controlled environment than is the case currently.