After months of tension and fights between Big Tech and several conservative politicians, especially Donald Trump, the tech giants of Silicon Valley decided to cross the Rubicon and suspend indefinitely the accounts of the departing U.S. president because their content could incite violence and violate the terms and conditions of their platforms. For some, this is going beyond the privileges granted by Section 230 of the Communications and Decency Act of 1996.
At first glance, the issue was discussed within the classic partisan camps that have become routine in hyper-polarized contemporary politics. The staunchest liberals immediately celebrated the decision, while conservatives denounced it as to the beginning of the end of freedom of speech in the United States and called for the elimination of Section 230, which protects these platforms from lawsuits. However, this is not an issue that should be viewed exclusively from the partisan perspectives common in the public forum. It is a much more complex and profound issue that must be discussed without allowing passions of the moment to cloud the reasoning.
The decision by Twitter and other technology giants sets a terrible precedent. And not only Trump says this, but German Chancellor Angela Merkel, Russian opposition politician Alexei Navalny, and Twitter’s own CEO, Jack Dorsey. And it’s not hard to see why it’s negative that a technology conglomerate decided to significantly reduce the ability of a public official, and not just any public official, to communicate with the population.
Even if you feel relieved because you won’t listen to Trump for a few days, last week’s decision leaves much to be desired and opens up questions about the future of freedom of speech in a society that depends more and more on social media to communicate.
Freedom of speech as an intrisical good
Immediately after the Big Tech decision, it was said that the First Amendment is about censorship by the federal government and does not apply to private entities, which is legally true. However, to pretend that a statement explaining the letter of the law can close the debate on Big Tech’s role in the public forum is superficial to begin with. No one is saying that the Twitter action was illegal; the debate is whether it was appropriate.
The First Amendment is designed to prohibit the federal government from censoring its citizens. Now, we must ask ourselves: Why do we find government censorship so corrosive to a nation’s freedoms? The answer, quite obviously, is that as a society we consider freedom of speech and the free exchange of ideas to be intrinsic goods that must be preserved. Consequently, since the state is the entity that has the most coercive capacity to stop the free flow of ideas, we decided to impose strong legal limitations on its ability to stop this common good that we call freedom of expression.
The First Amendment has a purpose: to defend the free exchange of ideas, and since it is assumed that the state has the greatest tools to restrict that right, the Founding Fathers used language directed at the federal government. However, just because the state is the entity that has the greatest capacity to restrict freedom of expression (indeed, it can extinguish it if it so wishes) that does not mean that there are no other actors that can also restrict this right, with less force than the state perhaps, but restriction, after all.
The past week’s events leave us with a clear reality: Big Tech has immense power to direct the conversation in the public sphere. In less than two days, President Donald Trump was suspended from office: Twitter, Facebook, Instagram (bought by Facebook), Snapchat, YouTube, Twitch, Shopify, TikTok, Pinterest, among other companies.
In other words, Trump apparently won’t be able to watch the Ninja Call of Duty streams on Twitch or review on Pinterest the new decor he will use to remodel his suite at Mar-a-Lago once he leaves the White House. It is indisputable that the power of CEOs to substantially restrict public figures’ ability to spread their message to the public is problematic. Especially given they are both unelected and unaccountable to anyone.
One argument made by those who defend this restriction is that it doesn’t really affect freedom of speech because users can simply move to other platforms with less strict rules on content moderation. They also say that what these companies are doing is protected by Section 230. In fact, many people decided to open accounts on Parler. However, both Apple and Google decided to remove the App from their stores and Amazon suspended the access of that website to their servers, effectively removing it from the Internet.
How can we continue to argue that the free market will offer solutions to counteract the excesses of Big Tech if access to that market is being restricted by Big Tech?
The seemingly coordinated decision to suspend Trump and even eliminate the possibility of another platform emerging as an alternative shows us that, although Big Tech still doesn’t have the same capabilities as the state to restrict free speech (Jeff Bezos can’t arrest you… yet), they do have enough weapons to substantially restrict the flow of ideas and information. Therefore, while it is absurd to demand that Twitter and Facebook follow the same parameters as the state on freedom of speech, it is also an illusion to think that they do not need any control or standard procedures.
This lack of consistency of Twitter and other companies has been harshly questioned, as it should be. In what world is it justified that Trump has been suspended for calling for violence while bloodthirsty leaders like Nicolas Maduro or the Ayatollah Khamenei continue with their accounts intact?
Reform of Section 230
These freedoms for social networks are derived from Section 230 of the Communications and Decency Act of 1996. Basically, this section allows several technology giants (which at the time were very small companies or didn’t even exist) to have no legal responsibility for the content uploaded by their users, while also giving them the freedom to monitor the content published on their platforms and remove it if it is deemed to violate the company’s terms and conditions. In other words, if an anonymous Twitter account decides to publish defamatory content against a person or violent content, Twitter cannot be sued for it.
For several years, Section 230 went unnoticed and served as a tool for social media to moderate the content of their forums and avoid the intrusion of grotesque content that could tarnish the image of their platforms. Of course, this freedom for companies to suspend content they deemed unacceptable assumes that such decisions are made in good faith. Many of us are now doubting that Big Tech is acting in good faith.
Many critics have proposed a total reform (or even elimination) of Section 230. While necessary, in my opinion, any reform of Section 230 must be carefully weighed because there is a possibility that, in the name of ensuring freedom of speech on the networks, a poorly calibrated reform could end up further damaging it.
If Section 230 is struck down completely and opens the door for companies like Facebook and Instagram to be legally responsible for any content that is posted on their platforms, then we can expect that such entities will be extremely careful in the opinions they post on their networks to avoid any legal litigation. In practice, Big Tech may end up censoring even more content than it does now.
Hwoever, maintaining the current situation is untenable. Big Tech cannot continue having their cake and eating it too. Either it is a neutral public forum where only openly reprehensible content is limited (gore or pornographic content, for example) or they decide to take the final step and become a content publisher, adhering to the rules followed by traditional media.
But Big Tech is not going to take this step voluntarily. Therefore, we need to seriously discuss legislative alternatives to solve this issue and preserve freedom of expression in this new environment dominated by social networks, which as I said at the beginning, is an intrinsic good for any society that wants to call itself free.
I am not a lawyer, nor do I pretend to be an expert in the complicated legal technicalities needed to build a viable reform of Section 230 that ensures the exchange of ideas. However, I believe that a viable reform can be built if the following principles are followed:
- Under a new Section 230, social media should not be legally responsible for the content posted by their users. This would only create incentives to increase censorship.
- Clearer and more defined legal limits should be set on what content can be moderated by companies, and such processes should be consistent and transparent. Specifically, Section 230 gives Big Tech the ability to restrict access to material that they consider “otherwise objectionable,” a rather vague legal term that gives these companies plenty of room to control content on platforms without following a transparent or very consistent process. Any reform of section 230 must address this specific legal gap.
- Public officials, politicians, or high-profile public figures should be free to express their opinions to the public, even if we do not like those ideas. Any statement by a political leader (especially a head of government) is automatically news and should not be censored.
- Any reform of Section 230 must be accompanied by the antitrust regulations currently being considered. The suspension of Parler from the internet is just a sign that, at this moment, the market is dominated by a small group of companies that can suspend, if they wish, any platform.
You may disagree or think that Trump’s statements on January 6th were inflammatory and irresponsible. But the way to counteract this is not to suspend him from Twitter indefinitely and hope that his rhetoric magically disappears, but to confront him directly in the public forum, however exhausting that may be. If you are against an idea, confronting it is a courageous thing to do, while censoring is taking the easy way out.