The attack on the US Capitol by Trump-supporting rioters shook the American political world to its core. Donald Trump stood accused of inciting and encouraging the violence. Political opponents lambasted the outgoing President, while former allies have withdrawn their support. Much of the business world has also cut ties with Trump. The PGA pulled the PGA Championship tournament from Trump’s golf course. Trump’s largest lender, Deutsche Bank, has also said it would no longer do business with him. What has caused the most controversy, however, was so-called “big tech” limiting or removing Trump’s access to their platforms. The most notable moves were by Twitter and Facebook, which both banned Trump indefinitely. Amazon took right-wing social media platform Parler offline due to its failure to moderate those inciting others to get involved in the Capitol riots. Google and Apple also removed Parler from their respective app stores. Over 10 other platforms including Snapchat, TikTok and Twitch, also took action. Collectively, these moves essentially created a Trump blackout on social media. These moves divided opinion and even those politically opposed to Trump argued that this was a worrying encroachment on freedom of speech.

Does the move by tech giants constitute unlawful censorship or are they entitled to take this action in light of recent events? Many argue that although these firms are private, their platforms have morphed into public spaces. The top 6 social media sites boast over 1 billion users each, with Facebook approaching 3 billion. As of 2019, 50% of Americans got their news from social media. Do such tech firms enjoy the legal same rights as any other private person? Or are they now so fundamental to public discourse that they should be considered public forums? This article will explore the US law behind censorship and the wider implications of recent events.

What is censorship?

Censorship is defined as the suppression of speech or communication, that is deemed objectionable, obscene, or inconvenient. The First Amendment of the US Constitution provides US citizens with near absolute free speech. Censorship in a public forum is a breach of this right to free speech.

Contrary to popular belief, censorship is not strictly limited to actions by the state. Although rarely seen, private persons operating public forums can also be obligated to allow for unfettered freedom of speech. What is considered a public forum is determined on case-by-case basis and is explored below.

We must also note that censorship does not necessitate there to be a lack of suitable alternatives. There may be thousands of alternative spaces to speak, but this is irrelevant. The act of suppressing lawful speech in a public space breaches the speaker’s First Amendment right. Big tech has shut down online channels for Trump, but have they breached his fundamental freedom?

Does big tech have the right to censor?

World leaders from across the political spectrum have criticised big tech for their actions against Trump. German Chancellor Angela Merkel has spoken out against the actions of Facebook and Twitter. Her spokesman said it was “problematic” that Twitter has the power to ban Trump. Mexican President Andres Manuel Lopez Obrador said “I don’t like anybody being censored or taking away from the right to post a message on Twitter or Facebook.” This raises the crucial question, is there a right to post on social media?

The tech firms who banned Trump’s accounts cited his incitement of violence as the primary reason. Are they legally entitled to ban people on this basis? Corporations and private persons are invariably free to censor whoever they want on their property. Typically, only US government actors are restricted from censoring, meaning those in public spaces/forums cannot be censored. The bar to allow government actors to censor someone for incitement is astronomically high. In the 1969 “Brandenburg Test”, the US Supreme Court held that a KKK leader who publicly spewed hatred to and encouraged violence against black people could not be restricted as his speech was protected under the First Amendment. For speech to be restricted due to incitement, the speech must be “likely” to incite “imminent lawless action”. The right to censorship based on incitement largely turns on whether the entity censoring operates a public forum or not. Facebook, Twitter and the like are all private entities censoring content on their own (intellectual) property, so case closed right? Not quite. We explore this below.

Are social media sites public forums?

This issue was raised in numerous US court cases. Last year, a US court found YouTube was not a public forum and the right to freedom of speech did not apply. YouTube was considered a private entity and was entitled to ban right-wing channel PragerU. The court said despite its “ubiquity and its role as a public-facing platform, it remains a private forum, not a public forum”.  In 2019, the Supreme Court found that a public access TV channel operated by a not-for-profit organisation was not considered a public forum. This, therefore, exempted them from the First Amendment obligations. The threshold for being considered a public forum is high, even when carrying out seemingly public services.

There are, however, exceptional instances where private companies can operate public forums. In Marsh v Alabama (1945) a company which owned private streets in a US town was required to uphold the First Amendment right to free speech. Private ownership does not automatically relieve platforms of upholding the First Amendment rights. There can certainly be a debate over whether social media sites operate public forums.

Whether Trump’s account is a public forum has already been explored in some regards. In Knight First Amendment Inst. at Columbia Univ. v. Trump (2018), the courts considered whether Trump was entitled to block certain individuals from his Twitter account. The court found Trump’s account was used for official government business and had become a public forum. He was therefore, not permitted to block individuals who criticised him as it infringed on their freedom of speech. The Constitution prohibits discrimination in public forums. Crucially however, this ruling was limited to Trump’s account and in these specific circumstances. In March 2019, a US Governor’s Facebook and Twitter accounts were deemed not to be public forums of this nature.

The cases above show that media platforms are not typically considered public forums and the threshold to be considered one is high. For President Trump’s accounts specifically, it is more debatable. The contractual relationship between Trump and such sites, however, negates the argument that his free speech was breached.

Contractual Element

Despite the arguably de facto public service that tech giants provide, they are private entities, and every user agrees to a private contractual relationship with them when signing up. This contractual framework gives tech firms freedom to restrict, limit or ban any user of their platform who breaches their terms of use, provided the firms do not breach discrimination law.

In Twitter’s case, they have a public interest framework which provides greater leeway for public figures to break Twitter’s general terms of service. Their framework is abundantly clear that stipulated offending conduct will lead to enforcement action. Furthermore, as a private entity, they can and have established themselves as the arbiter of what offending conduct is, within the scope of their platform. By signing up to Twitter, Donald Trump expressly accepted these rules.

To further support this, Amazon Web Service’s (AWS) legal brief  against Parler’s lawsuit, stated that Parler hosted content that threatened “public safety”. They continued, “there is no legal basis in AWS’s customer agreements or otherwise to compel AWS to host content of this nature”. This encapsulates the crux of the issue. Firms are under no legal obligation to disseminate messages submitted to their site. Sites can lawfully remove content and accounts, in accordance with their terms of service. Consequently, Trump’s suspension from social media sites is a solely contractual issue not a First Amendment issue.

Conclusion

Taking all into account, it appears the actions of big tech do not constitute an encroachment on Trump’s right to free speech. Previous cases suggest they are not public fora and are therefore, not obliged to uphold First Amendment rights. The contractual framework between Trump and the firms further alleviates them from such obligations. Were social media sites right to purge Trump’s accounts? This will be debated largely along partisan lines for years to come, but this saga is symptomatic of a more important issue. This purge by big tech illustrates just how much power a handful of private firms hold over the nature of discourse in the public sphere. Social media was undoubtedly Trump’s main channel of public address. The President of the most powerful nation on Earth has essentially been cut off at the knees by a few companies in Silicon Valley. The fact that a few firms can lawfully hold such power has raised valid concerns.

Twitter CEO Jack Dorsey recently defended his actions in banning Trump as the “right thing to do”. But even he recognised that big tech was too powerful, and that the internet should not be controlled by a few private companies. World leaders are also complaining that their power is problematic, but they only have themselves to blame. They have been lethargic in creating legislation to effectively regulate big tech and stem their ever-increasing dominance. Admittedly, this is unchartered territory and the laws governing the online space will inevitably become more robust over time. The US government has even been exploring wholesale breakups of big tech firms to taper their dominance. There is a possibility that these recent events might just expedite that process. Whether such a plan or, at this point, any plan will be effective, remains to be seen.