Twitter shutting down Trump and Smartmatic suing Fox News: It’s about time or a dangerous precedent?
Decision-making about issues involving freedom of speech requires knowing where to draw the line.
By Jeffrey Cole
I don’t like anyone messing with the First Amendment.
The United States was the first country and still one of the few to spell out in our constitution explicit rights to freedom of speech, the press, religion, peaceful assembly and the ability to petition the government for redress of grievances. If America has ever been (or is now) exceptional, it derives directly from the first 10 amendments to the Constitution: the Bill of Rights. When we fight to preserve and protect the Constitution, this is what we fight for.
There are two concepts around freedom of expression that have always stayed with me: the importance of the marketplace of ideas and the danger of creating a chilling effect.
The marketplace of ideas comes from John Stuart Mill in his 1859 work On Liberty. Mill argues that just as an economic market creates competition that determines winners and losers, the marketplace of ideas relies on competition among different philosophies and theories to create the best possible ideas. Only a marketplace without censorship can allow the best ideas to come forth and win.
Over the years the courts have ruled that while the First Amendment should be placed in a preferred position, there is some speech that is so dangerous (incitement such as yelling fire in a crowded theater, libel, child pornography) that it can be restricted. The goal is to avoid a chilling effect; as a result of a regulation or lawsuits, citizens would hesitate to exercise their legitimate rights, and speech would be self-censored out of fear.
I have been thinking constantly about these two concepts as Twitter closed Donald Trump’s account with over 80 million followers and as voting machine companies filed lawsuits against Fox News, Rudy Giuliani, and other supporters of the former President. One day after the suit was filed, Fox News cancelled the highest-rated show on Fox Business Network: Lou Dobbs Tonight.
Aren’t these the anti-free speech consequences that champions of the First Amendment fear? Are these actions something that, regardless of our political opinions, should concern us?
Is Twitter more powerful than the President?
Twitter cannot violate Trump’s free speech rights for the very simple reason there are no First Amendment requirements for a private organization like Twitter. The Founding Fathers crafted the First Amendment to protect from government interfering with our free speech rights.
Twitter is not the government. It is a publicly traded corporation that is free to set its own policies as to who is entitled to use and continue to use its platform. Twitter has clear Terms of Service. Former President Trump consistently violated them. The company is within its rights to suspend or permanently terminate accounts that don’t play by the rules.
Clearly, Twitter did not decide to deplatform Donald Trump easily. The company resisted limiting or closing the account of the President of the United States for years. It only made the decision after two things happened: first, the January 6 insurrection showed that the speech crossed the line into “yelling fire in a crowded theater” territory. Second, and perhaps more importantly, on January 7 the Senate certified that Donald Trump would no longer be the President after January 20, 2021.
Far more than press conferences or traditional media, Twitter was Trump’s main pipeline of communication with the country.
Twitter defined the Trump Presidency. Every day we woke up, some of us in palpable fear and others in excitement, to see Trump’s stream-of-consciousness tweets. Some insider accounts of the last four years reveal Trump’s amazement at first, and then raw calculation, having realized that as soon as his last finger left the smart phone he could change the entire news cycle.
All this power rested on Twitter’s willingness to keep his account in good standing. Twitter profited mightily from Trump as their most famous user: both financially from advertising and from building the brand of Twitter. It is no surprise Twitter was reluctant to cut him off.
Finally, the most powerful information pipeline, perhaps in the history of the world, shut down its most famous user. The fact that he disappeared into silence makes clear the regulatory power of the government pales in the face of the power of the tech companies.
Such power in the hands of a few private citizens (Jack Dorsey, Mark Zuckerberg) is frightening. Those happy to see Trump silenced should worry: that same power can be turned against thinkers they like—thinkers offering critical ideas to the marketplace.
Is the press really free?
Equally worrisome are lawsuits against media outlets for the content on their pages or airwaves. Even nuisance lawsuits can make media organizations reluctant to address important public issues. Successful suits can neuter the freedom of the press. This is why the Supreme Court in New York Times vs. Sullivan (1964) made it almost impossible for a public official to sue a media company for libel and win. The Court wanted to err on the side of press freedom. Beyond proving the charges are untrue, a plaintiff (Dominion or Smartmatic) must prove the media organization (Fox News) acted with actual malice or reckless disregard for the truth.
It’s usually an almost insurmountable burden, as it should be. Except in this case.
Trump and his lawyers knew they were peddling outright lies. That is why they were never included as part of legal filings to reverse state vote tallies: the lawyers could be disbarred. They only raised charges about rigged voting machines, ties to Venezuela’s Hugo Chavez, and other conspiracy theories in venues where perjury was not a risk.
The most powerful information pipeline, perhaps in the history of the world, shut down its most famous user. The fact that he disappeared into silence makes clear the regulatory power of the government pales in the face of the power the tech companies possess. Such power in the hands of a few private citizens (Jack Dorsey, Mark Zuckerberg) is frightening. Those happy to see Trump silenced should worry: that same power can be turned against thinkers they like—thinkers offering critical ideas to the marketplace.
In the days since the November third election, Fox News, OAN, and NewsMax have repeated lie after lie about the accuracy and integrity of Joe Biden’s victory. While they do not have perjury to contend with, they are subject to libel laws. But they didn’t worry. Knowing the standard for a libel conviction was almost impossible to meet, they made little effort to police the veracity of Rudy Giuliani, Mike Lindell (the My Pillow CEO), Sidney Powell, or Trump himself.
Then the lawsuits were filed.
Just the threat was enough for Fox News and the others to craft much-hated retractions for three of their hosts: Maria Bartiromo, Judge Jeanine Pirro, and Lou Dobbs. Last week when Lindell started citing fixed voting machines on NewsMax, the host, Bob Sellers, cut him off and read a carefully worded legal statement. When Lindell still would not stop talking about voting machines Sellers walked off his own show.
At the end of the week, Smartmatic filed a $2.7 billion suit. Dominion raised the threat of its own legal actions. The next day, Fox News canceled Lou Dobbs’ program. The conservative network claims they had been considering dumping Dobbs for a while and that there was no connection between the suit and the dismissal. The timing defies logic and makes that impression unavoidable.
These are indeed chilling effects.
What is the path forward?
Both corporate terms of service and libel laws must have teeth otherwise they are meaningless. Some speech is so reckless and filled with actual malice that it should be punished afterward, although not suppressed before.
Twitter and other social media companies must make their terms of service so clear that users can skirt right up to the line and still keep their accounts. But if those terms are clear, then these companies must suspend any user who repeatedly violates them, even if that person is the President of the United States.
Fox News and the more conservative outlets, as well as media on the other side, should have provocative guests who challenge conventional wisdom. However, when they aggressively spout lies for which there is absolutely no proof and have been refuted by over 60 courts of law, they are crossing a line. It is almost impossible for a public figure and news organizations to be convicted of libel. But thanks to Trump, Giuliani and Lindell, Fox News and its friends have found a way.
The very thought of shutting a Twitter account or a news outlet paying billions of dollars because of what it ran on its programs is truly chilling. But Mill’s marketplace is imagined for ideas not dangerous and provable lies that can and did lead to incitement and violence. There should be a chilling effect against knowingly spreading such dangerous falsehoods masquerading as truth.
Just as the Trump Presidency challenged so many norms of what is acceptable or not, they did here as well. There must be limits.
Jeffrey Cole is the founder and director of The Center for the Digital Future at USC Annenberg.
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February 10, 2021