The Internet Bans Trump: A Revision on Free Speech and the Power of the Internet Giants
In the past few days, the social media accounts of US President Donald Trump, as well as those of many of his White House staff were “suspended indefinitely.” The social media platform’s shocking — though not very surprising — ban on Trump left many wondering, “isn’t there free speech in America?”, “How can the leader of the Free World himself be stripped of free speech, so easily?”
This article examines the legal aspects and the potential political consequences that this unprecedented event may entail.
Indeed, according to the First Amendment to the US Constitution, “[the United States] Congress shall make no law […] abridging the freedom of speech, or of the press[.]” Yet, in constitutional law, as in this case, “freedom” means negative liberty: its classical definition is an individual’s liberty right to be free from governmental restrictions. Whereas positive liberty, the “freedom” that people actually or subjectively perceive, is an individual’s claim right to act upon their free will. It is to be noted that the Free Speech Clause started to apply to state-level governments only after its incorporation in the case Gitlow v. New York (1925).
Thus, in a legal sense, the social media platforms did not break the law by banning Trump from accessing their services. Furthermore, “Section 230” in the Communications Decency Act of 1996 states that “interactive computer services” such as Google, Facebook, and Twitter would not face civil liability if they decided to remove content they deem as inappropriate. These Internet platforms’ legal immunity was reaffirmed in the Supreme Court case Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018), which allowed public service providers to refuse service to anyone whom they believe to be contrary to their values or beliefs.
However, the consequences of its refusal to provide service are utterly incomparable between a cake shop in Colorado and a transnational corporation such as Apple, Twitter, Facebook, or Microsoft. If these Internet Giants are considered as a whole, then this entity has already become a “public infrastructure” that billions around the world rely on every day. The lack of legal restrictions on the power of these corporations has caused the Internet Giants to be in possession of enormous de facto political power not just in the US, but in the entire Western world.
At the end of the day, these companies aren’t governments per se, but they are much more powerful than actual governments in that they can censor anyone of any ideology and any nationality without a trial. They can “censor” platforms, too — Parler, a right-wing-friendly social media platform, was taken down from the App Store and denied from using Amazon’s servers. But this is only temporary: fervent Trump supporters will migrate to a new social media platform and reinforce the preexisting echo chamber of right-wing ideologies, conspiracy theories, and even hate speech to a further extent. The United State of America will continue to be divided into two overarching tribes, and in the near future, such division will not only be based on the source of information people receive (as it is right now), but also based on the applications and platforms they choose to use.
Therefore, it can be predicted that in the following years, the Biden Administration and the Democrat-held Congress will pass new data or algorithm protocols and antitrust laws targeted at these Internet Giants. Based on past Congressional hearing records, these policies will have bipartisan support. After witnessing the chaos induced by conspiracy theories and the seemingly unlimited power of the Internet Giants in the US, it can also be expected that countries around the world will gradually adopt new Internet regulation standards, some might even consider building a “great firewall,” as China did. Interestingly, in the West, governments usually cannot censor private companies or individuals, but private companies can do so — which is the exact opposite of China. It is thereby worthwhile for lawmakers around the world to discuss who in society should have the power to censor, and where does the realistic border of free speech lie.
1. United States Senate (1992). “Amendments to the Constitution of the United States of America” (PDF). The Constitution of the United States of America: Analysis and Interpretation. U.S. Government Printing Office. p. 25 n.2. ISBN 9780160632686.
2. Brannon, Valerie C. (June 6, 2019). “Liability for Content Hosts: An Overview of the Communication Decency Act’s Section 230” (PDF). Congressional Research Service.