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The Right To Tweet

By Doug McConnell

On January 6th, 2021 Trump was locked out his Twitter account for 12 hours after describing the people who stormed the US Capitol as “patriots”. A few days later, his account was permanently suspended after further tweets that Twitter judged to risk “further incitement of violence” given the socio-political context at the time. Elon Musk has recently claimed that, if his deal goes through to take control of Twitter, he would reverse the decision to ban Trump because it was “morally bad and foolish in the extreme”.

Here, I argue that the original suspension of Trump’s account was justified but not its permanence. So I agree with Musk, in part. I suggest a modified system of suspension to deal with rule breakers according to which Trump’s access should be reinstated.

Trump is currently taking legal action against his suspension on the grounds that it violated his free speech rights. However, to succeed under US law, he has to show that Twitter was acting as a government censor. Assuming Twitter were not directed by the government but simply acting as a private company, then they are legally justified in permanently suspending Trump’s account. Private media companies are not obliged to publish or host anyone’s messages. But, legal matters aside, we might wonder whether Twitter is morally justified in banning Trump.

Prima facie, the claim that Twitter has wrongfully interfered with Trump’s free speech appears difficult to sustain because Trump has many avenues to exercise his free speech. As a rich and powerful man he has much more power to have his views heard than most of us will ever enjoy. So, if Twitter has wronged Trump, it has done so by violating his right to express himself through Twitter in particular (if such a right exists), and not by violating his right to free speech in general.

So ,when are private companies morally permitted to refuse to provide services? Its widely thought that private companies provide services at their own discretion with the important exception that they cannot refuse service on discriminatory grounds, e.g. because of race, gender, religion, sexual orientation and so on.  The reasons that Twitter appeal to, i.e. preventing risk of violence, don’t appear discriminatory.

However, opponents might claim those reasons are merely a front and the real reasons for the ban discriminate against Trump on grounds of his political beliefs or affiliation. It is more controversial as to whether it is morally permissible to discriminate against someone on account of their political beliefs or affiliation. This probably turns on whether a person’s political beliefs or affiliations are themselves intolerant of others, e.g. KKK affiliation and beliefs about white supremacy. Arguably, it is justified to refuse service on the grounds that we shouldn’t tolerate those who won’t tolerate others. Indeed, ex-KKK grand wizard David Duke was (eventually) banned from Twitter for behaviour violating the ‘hateful conduct’ rules. But before getting into the quagmire of whether Trump’s political beliefs or the Republican Party are intolerant of other races, religions, and so on, we can note that the charge of political discrimination doesn’t stack up. Twitter doesn’t systematically ban Republicans. In fact, there is some anecdotal evidence that Twitter goes out of its way to protect the accounts of Republican politicians by reducing the power of the moderating algorithms that would otherwise flag their accounts (perhaps as false positives) as propagating white supremacist content.

Not only is the motive of political discrimination not well-supported, it seems plausible that Twitter was genuinely worried about the potential for Trump to incite further violence given Trump’s regular lies that the election was stolen from him, the storming of the Capitol, and the febrile post-election social atmosphere. So, if Twitter is a private company like any other, then it would seem to be morally permissible to deny Trump service in this context and on the grounds they cite.

Of course, many would object that Twitter is not your typical service-providing company and so the moral picture is more complicated. Twitter provides access to particular form of online interaction with over 300 million monthly users (some of whom are famous and powerful). Musk describes it as a ‘defacto town square’, though there are significant disanalogies, not least of which that Twitter is less democratic than an ideal public forum because it amplifies the voices of famous people over typical citizens. It would be a stretch to say that Twitter offers an essential public service – there are other public fora for people to discuss the issues of the day – but it does have a monopoly over a particular form of public interaction with a particular network of people.

This monopoly over access to a massive public space online arguably brings with it more moral obligations than a typical service-providing company. To ban someone from Twitter is to exclude them from a large forum for public interaction where a proportion of the discussion relevant to the direction of society takes place. Free speech rights are to protect citizens’ ability to contribute to discussion about the direction of society so it appears that should extend to ‘tweeting’. We might think that the weight of one’s claim to be able to tweet is proportionate to the significance of the discussion that happens on Twitter relative to other fora. It’s difficult to quantify the significance of the public discussion on Twitter relative to Facebook, Instagram, letters to the editor of the newspaper, or talking to people in the literal town square, and so on. However, the Supreme Court of the US unanimously recognized social media as the most important form of interaction for the exchange of ideas between citizens and government (Packingham vs North Carolina 2017). So we can certainly say that Twitter, as one of the major providers of social media, is an important forum for public discussion. Therefore, Trump could be said to have a right to tweet even if he has the power to communicate in other fora.

Of course there are wrongful actions within a forum that can outweigh one’s right to freely participate. Sometimes this is straightforward, e.g. if someone was using Twitter for the purpose of human trafficking (and obviously the state would also attempt to enforce sanctions in such cases). Were Trump’s tweets sufficiently wrongful to outweigh his right to participate? I think so. Trump was using Twitter to incite violence and undermine US democracy by promulgating his ‘big lie’ that the election was rigged.

When democracy is damaged everyone’s right to free speech is put at risk. Trump was essentially trying to override the voices of the majority of Americans and create the conditions where a small minority could violently assert power rather than engage in the democratic process. It’s clearly inconsistent to appeal to your own right to free speech when the goal of that speech is to trample over the rights of millions of other people’s free speech and establish a precedent for the future suppression of those rights.

Of course, one might accept that suspending Trump’s account was justified but argue that the permanence of the ban was disproportionate. Since Twitter banned Trump, a ‘strike’ system has been developed where continued rule violations result in escalating account locks ranging from 12-hour to 7-day suspensions. Five or more ‘strikes’ leads to permanent suspension. So there is ample warning built into this system but no possible redemption/rehabilitation for a 5-strike offender. Clearly not everyone is deterred by this punishment and this leads to their permanent exclusion from this public forum even if they might later be able to cooperate with the rules. This seems unfair and doesn’t align with our attitude to criminal punishment. Although a criminal record is typically permanent and might exclude one from some forms of public service, it usually isn’t thought to be sufficient to exclude someone from contributing to public discussion or voting. To permanently exclude people only contributes to resentment and social fragmentation.

I think permanent bans from public discussion are always disproportionate. I suggest that Twitter should modify their strike system to include 3-month, 6-month, and year-long suspensions. People coming back from year-long suspensions would immediately face longer suspensions if they reoffended, e.g. a 7 day suspension might be imposed at the first strike. Trump has now been banned for over a year, so, on my system, his account should be available to him. However, were he to break the rules again, then the longer bans for reoffenders would be swiftly reimposed. Relaxing the length of suspensions doesn’t entail relaxing the rules governing use of speech on the platform.

Musk also claims to prefer temporary suspensions and other narrowly tailored punishments for content that is illegal or otherwise “destructive to the world.” However, his claim to being a free speech absolutist and his critique of the original suspension of Trump’s account suggests that he would also relax the rules that lead to suspensions. I would disagree with that and the legislation being passed by the European Union suggests that they would too but that debate is for another time.


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5 Comment on this post

  1. Paul D. Van Pelt

    Changes to the social contract are creating problems. Free speech, outside the workplace, is being infringed by workplace policy that says something like: ‘if you say things which reflect badly on our business, because of your being an employee, we will take action against you to make you think twice about doing so’. This expands the caveats associated with free speech, to the effect that free speech can have consequences, meaning it might cost you your job or, at a minimum, some of the terms, conditions and privileges afforded by said employment. There are several cases of this going forward in the nation at the moment. We have an issue of regulating the regulators. The premise is ludicrous, on its face. For years, the privacy of Americans has been either surrendered by them, or eroded by other interests (social media, for example). Being told by your employer what you may or may not say, on your own time, is yet one more example of the invasion. Those of us who join online discussions of philosophy surrender some measure of privacy. That is a choice we make. But if it is true we can’t legislate morality, it also follows that we should not need to regulate regulators. Or has this gone too far already?

  2. There were old good times when the politics did not take place on Twitter.
    In these time the politicians offered the political programmes in the election and voters made a choice.
    The politics determined the LONG TERM (this word is very important) strategy.

    But in the era of Facebook or Twitter the politics lost this basic role.
    Nowadays it is the other way round.

    The politicians do not make politics anymore. They only react in BREEF form on something what another people
    say on Twitter. They are depend on social media.

    But this is not the way how we can solve the difficult problems.

    What is more serious by suspension of someone’s account Twitter becomes THE POLITICAL PLAYER.

    So as private company Twitter has the power to decide who is allowed to speak and who is not.

    This extremely dangerous because Twitter HAS NOT BEEN ELECTED.

    We elected the politicians to decide what issues are important and what issues has to be discussed.

    But it is the past.

    Today Twitter and other social or electronic media choose the problems. But in their especially commercial interests.
    So Twitter will choose the issue which is in some way interesting or which can be surely pay.
    But surely pay for Twitter not for us…..

  3. Paul D. Van Pelt

    Anyone, regardless of political affiliation, should understand that social media is a big business enterprise. To reference an earlier comment, in the good old days, there was no Twitter. Or, Instagram; You Tube; Facebook or anything else of that sort. Their reason for being arose from the technology that enabled them to do so. It is progress. Venture capitalism, economics and trend analysis all played a role in this Big Thing venture. Give the people what they want, became, tell them what they want, based upon what the new technologies are capable of delivering. Any notion that social media could have been only an altruistic means of people having ‘friends’, anywhere and everywhere in the world, was, in itself, altruistic. Ridiculous. I have no horse in the race. Not would I want one. Not worth my limited time. I try to contribute what limited intellectual resources permit. People treat me with some deference wheng they learn I do not have—or want—a smart phone. But, the little bird tells me they think: there goes another dinosaur. The wealth amassed through all this progress is, arguably, real. Yeah. I guess. However, reality does not =substance. In this case, anyway…
    Everyone dies . Me. You. Dinosaurs. Media magnates.

    1. Ulrich Beck calls it “Risk or Individual society”, Bauman “Liquid Modernity” and Giddens “Second Modernity”. The common term that can be use dis POSTMODERNITY.

      These sociologists want to say that the modern community and its inventions create the risks on which the society itself is forced to react.
      Pandemic of covid 19 is one of example.
      Both the information and the panic were broadcasting rapidly through the (POST)MODERN electronic media and therefore there was the governments’ “harmonized” reactions all over the world.
      Just this “harmonization” was the prima factor that legimitated the covid measures (“Look…. In the other countries they also have these bans and masks” argued politicians in most countries and it was their basic argument, not if the measures are really profitable….).

      So it is the point.

      The inventions create also risks. About no invention that people introduced we can say that it brought just progress. Everytime there were also externalities.
      The 19th century had the steam machine. The 20th century had the car and TV. The 21th century has internet, Facebook and Twitter.

      The radio broadcasting helped much for spreading Nazi ideology in Germany.
      The TV campaigning much influenced the politics in West countries after 1960 (via Pierre Bourdie “On Television”).

      How much the electronic media and internet influence our political life we still do not know. But the populist rise, covid or war in UA show that this influence will be very broad.
      These media show primarily emotions, not reason. And that all can turn into very bad ends.

  4. Thanks (I guess) for the update on postmodernism. There are, I am sure you know, varied opinions/arguments for and against the postmodern in philosophy circles. Stanford’s blog, Philosophy Talk, has tackled it. Well, it broke the tackle—still barreling towards the goal line…

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