The right to free speech under the First Amendment requires that “Congress shall make no law ... abridging the freedom of speech.”  The Fourteenth Amendment requires that States also not abridge the right of free speech without due process of law.  According to the March 27, 2019 Report, U.S. courts have interpreted the right of free speech under the First Amendment and incorporated through Fourteenth Amendment to limit only the actions of state actors.  As it stands currently, social media companies are private companies, not state actors, and therefore not constrained by the First Amendment.  In fact, many legal commentators claim that when a social media company allows or limits content to be posted on their platform, they are exercising their First Amendment right to free speech thus limiting Congress’ and States’ ability to regulate. 

With that said, it undeniably brings to light the true power Twitter and other Big Tech firms wield in today’s society.  Because of Twitter’s drastic, but necessary, action in banning President Trump, Big Tech has found themselves right in the crosshairs of world leaders for the possible threat they pose to free speech.  Notably, as reported by MSN, German Chancellor Angela Merkel, who has been a critic of Trump throughout his presidency, found Twitter’s ban concerning. Twitter, however, has made it clear that it does not intend to be a threat to free speech.

 Jack Dorsey, CEO of Twitter, addressed the weight of the sword his company swung in banning Trump, but, again, reiterated the necessity of the  action with a thirteen tweet thread.  In the second of the thread, Jack notes the “extraordinary and untenable circumstance” that forced the action taken.  Shortly after the permanent suspension, Twitter released a blog that President Trump was permanently banned because he posed a “risk of further incitement of violence.”

It is clear that Trump used his accounts to gather his following on January 6.  It is also clear he then incited the insurrection that ensued through his rhetoric at the rally when he claimed, among other things, “[b]ecause you’ll never take back our country with weakness. You have to show strength and you have to be strong.” He then failed to call a halt to the violence by praising them and further emboldening then by falsely claiming the election was fraudulent in a video released on his social media accounts.  Trump’s Twitter account initially was suspended for 12 hours on January 6, at which time he was warned that his account would be deleted if he did not stop spreading misinformation.

Trump was not banned until Twitter determined that two of Trump’s tweets have been understood as encouragement to replicate the insurrection at the Capitol.  In fact, Twitter discovered “plans for future armed protests have already begun proliferating on and off-Twitter, including a proposed secondary attack on the US Capitol and state capitol buildings on January 17, 2021.”  Fortunately, these threats did not ring true, but, nonetheless it was reasonable to believe they may have at the time Twitter took action.

As Jack claimed in his tweet, these truly were “extraordinary and untenable” circumstances.

For years, and increasingly so in recent months, Twitter users have urged Twitter just to ban his account because of the misinformation and half-truths he constantly posted on the account, especially regarding COVID-19.  Twitter refused to ban Trump because their public interest framework is meant to protect the free speech of World Leaders.  In fact, even after the ban, Jack has doubled down on creating an “open decentralized standard for social media” to protect freedom of speech on the internet.

The market viewed the ban as unfavorable, which lead to a drop in about $2.5billion in Twitter’s market value.  However, this is not solely because of the loss of Trump’s account as many companies were already avoiding advertising on Twitter because of fear of being associated with Trump.  This drop is mainly attributed to fear of future regulations from world leaders.  If Twitter wishes to control these speculations of harsh regulations, it needs to increase transparency into its criteria and decision making for what content is posted and what is banned, especially surrounding world leaders.

With the power Big Tech wields in the ability to control speech and the limits on the United States’ ability to limit Big Tech’s power, for now it seems that Big Tech will continue to control what content may or may not be posted.  However, they clearly have a huge financial incentive to increase transparency when it comes to procedures to protect free speech.

As for now, it is all speculation how exactly a balance will be reached, but fortunately for you, I will update this blog as more major news breaks.  Look for more at middletechpod.com/blog.