Free speech and social media
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Following Twitter’s decision to post fact-checking commentary on his tweets, Donald Trump issued an executive order intended to use what powers are available to the branch of the government that he directs to protect what he sees as free speech on social media. His ability to control what is and is not allowed is limited, since thanks to our courts having decided that corporations have some of the basic rights of human beings, Twitter, Facebook, and others can make the argument that they get to decide what is allowed on their platforms and cannot be compelled to permit speech that they do not approve, but he may be able to use the executive branch’s regulatory powers to harass them into permitting enough of his tweets to keep him happy.
The establishment reaction on the political left unsurprisingly has pointed out that corporations are not the government and therefore are not bound by the First Amendment and has taken the stand that because Trump supports what he believes is freedom of expression, they must be opposed. As much as I despise Trump, I have to observe that bad people occasionally get close to good ideas. Social media has taken on the role of the twenty-first century agora, the public space in which we engage in the activities of the people, be they politics or commerce, among many others. This being the case, allowing corporations to decide what will be permitted is a dubious toleration.
The observation that Twitter, et al. are not bound by the First Amendment is correct if we insist on being unimaginative. Social media companies are not government entities, and unless they are repeating the cozy relationships with the darker agencies of the government that existed during the Cold War — see Tim Weiner’s book, Legacy of Ashes for a detailed history — they are not acting as official agents. And in any case, the First Amendment has been the subject of fluid interpretation over the more than two centuries that it has been in effect. As things stand at present, including the incorporation doctrine under the Fourteenth Amendment, we enjoy freedoms of speech and the press in the United States at all levels, so long as we do not use those media to call for the commission of a crime or engage in defamation against others — and the latter must be blatant to get us into serious trouble. Social media platforms, by contrast, are essentially the…
