I support Facebook and Twitter removing speech that it deems true threats or incitement, even if the speaker is the U.S. president. But the fact that some of President Donald Trump’s speech might be deemed to fit in these categories does not justify barring all of his speech.
Keeping anyone from being able to communicate is troubling, but it is especially so when it is the U.S. president who wants to express his message. However much I disagree with it, he should be able to convey it.
While Twitter and Facebook have the legal right to exclude Trump from their platforms, I am very troubled that they did so. Freedom of speech is most important for the speech we loathe. We would allow the speech we like to happen anyway.
I loathe much of what Trump says, but I do not believe he should be silenced. Speech that rises to the level of incitement certainly should be excluded, but that does not justify a lifetime ban as Twitter imposed on Trump.
To be clear, this is not a First Amendment issue. The U.S. Constitution’s protection of rights, including freedom of speech, applies only to protection from government suppression. Private actors, even very powerful ones like Twitter and Facebook, do not need to comply with the Constitution in their actions.
For example, employees of private companies can be fired for their speech, unless they have a contract that protects them, while the First Amendment protects government employees. Twitter and Facebook control their platforms and can allow or prohibit speech as they see fit.
Power of Private Actors
I am troubled, though, by the power that these social media companies, and others like Google and YouTube, exercise over speech. If a website or social media platform cannot be accessed, it effectively does not exist for those blocked. Facebook and Twitter are hugely important in how people communicate and receive information.
In 2017, the U.S. Supreme Court noted that Facebook then had 1.79 billion active users, which is about three times the population of North America. President Trump had over 88 million Twitter followers.
The First Amendment is based on great concern over giving the government the power to control what information people receive. We should not be more sanguine when it is the officials of Facebook or Twitter making these choices.
The effect of Facebook and Twitter barring Trump is that it makes it far more difficult for him to communicate his views and for them to be received by those who want to hear them. That is undermining speech—both for the speaker and the listeners—even though the First Amendment is not implicated.
Free speech is not absolute and there are times when speech can be prohibited and punished by the government. Private companies should have no hesitation about excluding such speech. For example, true threats—speech that causes a person to reasonably fear for his or her safety—are not safeguarded by the First Amendment.
The Supreme Court long has said that incitement of illegal activity is not protected by the First Amendment. But the test for incitement is difficult to meet.
Under the Supreme Court’s 1969 ruling in Brandenburg v. Ohio, speech is unprotected by the First Amendment if there is a likelihood of imminent illegal activity and if the speech is directed at causing imminent illegal activity.
Speech Is Protected for a Reason
I believe that Facebook and Twitter should have prevented Trump from expressing his demonstrably false and unsupported views that there was major election fraud or that the election was stolen. I have no problem with their labeling his claims to be unsupported or false, but it is Trump’s opinion and he should be allowed to espouse it. The appropriate response is more speech: people showing that his claims are inaccurate and that demonstrates that no significant fraud occurred.
I recognize that there are harms to Trump’s false claims and his wild conspiracy theories. Some people come to believe them even without any evidence to support them. Speech can cause harms. If speech had no effects, it would not be protected as a basic right. The effects can be positive or negative.
I always have thought that the only way my speech can be safe tomorrow is to protect the speech I don’t like today. It is why I staunchly advocated the right of the Nazis to march in Skokie, Ill., or for hateful speakers to express their bilious message. It is why I oppose the censorship by Twitter and Facebook of Donald Trump. It is why I worry about the dangerous precedent this sets.
As far as I am concerned, I would be happy if Trump never sent another tweet or for that matter, gave another speech. But that does not justify Twitter and Facebook silencing him on their platforms.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
Erwin Chemerinsky is the dean of U.C. Berkeley School of Law and the Jesse H. Choper Distinguished Professor of Law. Prior to that he was the founding dean and distinguished professor of law, and Raymond Pryke Professor of First Amendment Law, at the University of California, Irvine School of Law.
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