After the Capitol was stormed by a mob fired up by President Trump, Facebook suspended his account, arguing that it was used “to incite violent insurrection against a democratically elected government.” Twitter, citing “the risk of further incitement of violence,” has done the same, blocking Mr. Trump from using its platform to communicate to his more than 80 million followers.
What should we think about the power of such private corporations — and of the companies’ immensely wealthy owners — over American political speech?
That’s a hard question to answer. On the one hand, deplatforming a user like Mr. Trump is perfectly legal, and the perils of corporate power are often exaggerated.
On the other hand, these companies are exercising a sweeping ability to silence all of a politician’s speech, not just the dangerous parts. This would be condemned as prior restraint — that is, an action forbidding a wide range of future speech, rather than punishing a specific past statement — if done by the government. Furthermore, these companies are doing this in an environment of limited competition and with little transparency, procedural protection or democratic accountability.
I generally support private businesses’ ability to decide how to use their property. But even ardent champions of capitalism should accept that all power can be dangerous, including corporate power.
The first thing to understand is that these actions by Facebook and Twitter are legally permissible. They don’t violate the First Amendment, which binds only the federal government, or the 14th Amendment, which applies the First Amendment to state and local governments. Suspending Mr. Trump’s accounts also doesn’t violate any existing statutes; no law limits online services’ power to do that.
And such power can certainly be exercised in good ways. Maybe Facebook and Twitter should be more active in suspending accounts of elected officials, candidates and others, if they think those people — on the left, right or anywhere else on the political spectrum — are fomenting riots, emboldening looters or supporting violence or vandalism.
At the same time, you might worry that this power is prone to abuse. Recall the Supreme Court’s 2010 decision in Citizens United v. Federal Election Commission, which held that corporations and unions have the First Amendment right to speak about political candidates. I happen to agree with the court’s decision in that case, but four justices and a legion of commentators didn’t. Many were concerned that by using their wealth, corporations would undermine democracy and unduly influence elections and sway elected officials.
Yet Citizens United was just about whether corporations could spend money to convey their views. Now we have a few huge corporations actually blocking someone’s ability to convey his views. Plus, such blocking affects not just the speaker; it also affects the millions of people who use Facebook and Twitter to hear what their elected officials have to say.
And what happens once is likely to happen again. After this, there’ll be pressure to get Facebook, Twitter and other companies to suppress other speech, such as fiery rhetoric against the police or oil companies or world trade authorities. People will demand: If you blocked A, why aren’t you blocking B? Aren’t you being hypocritical or discriminatory?
Consider, too, that the app for Parler, a social network popular with Trump supporters, was removed on Saturday by Apple and Google from their app stores, and blocked by its hosting company, Amazon Web Services, because of concerns that some of Parler’s users were inciting violence. Merely refusing to forbid certain speech, much of which is constitutionally protected, is now a basis for blacklisting.
Companies, moreover, are run by humans, subject to normal human failings. Mr. Trump’s suspension may have been motivated by a sincere desire to resist efforts “to undermine the peaceful and lawful transition of power,” as Facebook’s chief executive, Mark Zuckerberg, put it. But other politicians might be suspended because their policies are bad for corporate profits or contrary to the owners’ political ideologies.
It’s only human nature for people to think the worst of their adversaries’ views — including by labeling them hate speech or fake news or incitement — while giving their allies the benefit of the doubt. And sometimes just the risk of suspension will pressure politicians to avoid taking positions a company dislikes.
Of course, we shouldn’t exaggerate the novelty of this. Newspapers and TV stations have long been able to decide which politicians to cover and which politicians’ op-eds to publish.
But there are hundreds of newspapers throughout the nation and several major TV networks. Facebook and Twitter have no major rivals in their media niches. The public relies on them as matchless mechanisms for unfiltered communication, including politicians’ communications with their constituents.
We also shouldn’t overstate the danger of corporate power. Facebook and Twitter, unlike the government, can’t send us to jail or tax us.
But at least governmental speech restrictions are implemented in open court, with appellate review. Speakers get to argue why their speech should remain protected. Courts must follow precedents, which gives some assurance of equal treatment. And the rules are generally created by the public, by their representatives or by judges appointed by those representatives.
Facebook’s and Twitter’s rules lack such transparency, procedural protections and democratic pedigrees. (Facebook just started an oversight board that might provide some more transparency — but it’s still far short of what the legal system offers.)
In general, it’s good for private businesses to be able to decide how to use their property. And trying to create laws constraining those decisions may well do more harm than good — always a danger with even the best-intentioned of new laws. Yet both liberals and conservatives should appreciate the perils of power, especially the power of enormous companies that have few competitors and huge influence over political life.
Eugene Volokh is a law professor at the University of California, Los Angeles.
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