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 property of their respective corporations and have no such protections.
But given the role that these platforms have taken on themselves, this should not be allowed to continue. Corporations already play a disproportionate role in our politics, and with the Citizens United decision, things will only tilt farther in their favor. Social media companies have the interests of their advertisers at heart, since that is a primary source of their revenue — along with the information about their users that they can collect and sell — and they are not motivated by the public good. But the legal fiction of corporations being in some sense people is not even the worthy kind of fiction that my intended audience for these articles create, and if those of us who care about the ability to express ourselves wish this freedom to continue, we have to take action.
The reality is that users across the political spectrum are being silenced: forced to delete their posts, deboosted and otherwise shadowbanned — various trickery used by social media companies to hide what we have to say while leaving us with the impression that our accounts still work — or outright banned. The unifying characteristic is that these users make advertisers uncomfortable. This is the same phenomenon that older media have dealt with for decades, advertisers who felt squeamish about having their promotions placed next to articles about something unpleasant — or, worse from their perspective, that are critical of their products. Suburban Karens would like to believe that social media is deciding to protect them from things that they do not like, but they are seen by corporations as exploitable resources — called “human capital stock” in an astonishing moment of honesty from economists. These companies do not care about anyone’s feelings, but are instead only interested in separating us from our money.
The desire for paternalism, either from corporations or the government, will not save us. If we allow both entities to continue distorting public discourse, our thinking will be shaped more and more by what is of advantage to them, and setting them at odds with each other will not help the people.
The answer is something that will distress both corporations and governments. Social media companies need to be regulated to maintain freedom of expression. All speech should be treated equally. This, of course, means that Trump’s tweets and those of his followers will receive the same protection that anyone else enjoys, but that is the challenge of freedom. Users would still have the ability to block other accounts that they do not wish to see, and good people would retain Justice Brandeis’s remedy of more speech. But the essential discussion of our ideologies and their consequences must take place in public if we are to sustain our system that defends and depends on citizens and their rights. This discussion occurs in large part on-line today. If we allow anyone’s speech to be privileged or silenced, depending on the wishes of the powerful, social media ceases to have any genuine value.