Twitter has banned the President of the United States, Donald J Trump and, through this act of chilling speech, has caused a lot of speech in the form of hot takes. I promised myself that I would not contribute to this deluge of takes; I begged myself not to contribute to this flood of opinion; I implored myself to stay hydrated and embody the best version of myself by not contributing to the swamp of bellyfeel. Alas, I am mortal and liable to fall.
A private company withholding service on political grounds is absolutely a free speech issue and everybody arguing to the contrary is confused. The debate is not whether or not this is an issue about freedom of speech (which it absolutely is); rather, the debate is whether or not you should care about some people having their freedom of speech curtailed. That last point is the relevant bit to this discussion: should the President be permitted to use a service to incite violence and, if not, who should make that call?
Let’s start somewhere entirely different. For the past few years, sex work organisations have criticised companies who curtailed people’s ability to use their services for erotica or sex work. People were creating erotic content and wanted to sell it online; Instagram was like ‘Nope, we’re a family friendly company and we will ban Objectionable Content.’ PayPal similarly put in restrictions on the adult industry from using its services.
Regardless of your views about these industries, you immediately confront a philosophical problem when discussing the behaviour of these companies: should they be permitted to make policy decisions that discriminate against people engaged in lawful activity?
I want to extend this out a bit further in a way that might seem a bit counterintuitive at first: what if, instead of the adult industry, we were talking about a persecuted minority? What if PayPal decided it was uncomfortable with Palestinian activists using its services? What if Instagram decided marriage really was between a man and a woman, and made the policy decision to shadowban LGB content?
What if–at the extreme–Twitter decided it really wanted Kang to win the election instead of Kodos, and so suppressed pro-Kodos content on its platform? Would this be different from promoting pro-Kang content, or anti-Kodos content?
In this series of scenarios beginning with the adult industry through to Kang and Kodos, we see that private companies can wield incredible market power that severely constrains the participation of individuals in broader society.
Anti-discrimination law does not start in the same place that the First Amendment to the United States Constitution begins. The First Amendment begins with a fear about legislative overreach into individual liberties. Anti-discrimination law starts with the realisation that groups of people are vulnerable to an unregulated market, especially if you allow people to make the private policy decision to withhold services from particular groups.
Social media is inherently about speech. It has devolved publishing platforms so that individuals now have a greater ability to participate in political discussions than ever before. And now we’re faced with a genuine issue: to what extent should we constrain the ability of social media companies to discriminate against people based on their content?
Perhaps one way of thinking about this is to created protected attributes: we use anti-discrimination law to prevent these companies denying service to people on the grounds of their race, religion, sexuality… political opinion…? …employment?
Should all political opinions be treated equally here? Is white supremacy merely another political opinion, or is it outside political opinion? Is being Grand Wizard of the KKK just like any other employment?
And this is where we get one side of the ‘balance’: even when we are dealing with private companies, we need to curtail their ability to restrict speech… but not to the extent that it protects socially deleterious speech.
People want grand, absolute statements about freedom of speech and how it applies to the Donald Trump case. It originates with an intuition that freedom of speech is sacred and needs all the protection that it can get… and so anything that shouldn’t be protected, by definition, can not be an issue of free speech. Outside of the US, especially, we do not talk about freedom of speech in this way: it’s a right that we balance against other rights and legitimate policy needs. Preventing a person from using the mail service to send abusive letters to the family of dead soldiers definitely engages questions about freedom of speech; the fact that we might find it justified to restrict this behaviour does not mean that it’s not an instance where we think about freedom of speech. In this case, other considerations were more important.
A social media company shutting down a Head of State is a matter of extraordinary concern. Extraordinary. One approach to the concern is whether other needs and priorities outweighed the freedom of speech issue (almost certainly yes). The other approach to the concern is whether Twitter should be the one making that call, or whether there needs to be a better regulatory framework in place to compel Twitter to go one way or the other on broadcasting Trump’s views.