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For years, the de-platforming of Donald Trump has been a hot topic for conversation. Following Twitter’s ban of the US president on January 8th, there has been a mix of reactions within academia and the legal fraternity. According to the former Al-Jazeera Stream producer, Omar Baddar: “the discourse on Twitter's ban of Donald Trump is probably the thorniest free speech, censorship and public safety issue of this political & technological moment as a society.” Despite decrying Trump’s “lies & defamatory incitements to violence”, Baddar finds it “disturbing to think that undemocratic & unaccountable big tech gets to unilaterally decide when someone can effectively be silenced.”
Facebook, Twitter, and Instagram blocked President Trump's access to their platforms after a mob of pro-Trump supporters crashed into the US Capitol. According to Belinda Barnet for the Canberra Times, the attack was “egged on and planned” by Trump. This is the first time in history that a sitting president has been de-platformed. Twitter now has permanently banned him for “incitement of violence”.
A Twitter spokesperson clarified to TechCrunch that Trump will not be able to make a new Twitter account or use an alias. If he attempts to evade his suspension, the account he uses will also be banned for breaking Twitter’s rules.
Twitter Inc. has a long history of feuding with the president. Last year, Twitter’s decision to add a warning label to a tweet in which he called mail-in voting “fraudulent” prompted the present to counterattack through an executive order against social media companies.
The draft order exerts control over social media companies by attacking a law known as Section 230 of the Communications Decency Act. That law often protects online platforms from legal liability for the content that their users create. Without the law, Twitter, Facebook, YouTube, Reddit, or any other website that has a comments section could be sued for the comments or posts made by their users.
Senator Ron Wyden, the co-author of Section 230, describes the law as providing companies with both a sword and a shield. The “shield” safeguards companies from legal liability and the “sword” enables them to make moderation decisions without facing liability for that.
Following the ban, Senator Lindsey Graham made a statement that he would fight to remove legal protections from “Big Tech” companies. He also called for Section 230 to be repealed in his recent tweet: ‘’It is now time for Congress to repeal Section 230 and put Big Tech on the same legal footing as every other company in America. Legal accountability.’’
Initially, Trump tried to bypass the ban by tweeting from the @POTUS Twitter account. Through that account, he accused Twitter of banning free speech. That tweet was removed shortly afterwards.
According to Business Insider, Trump's implication that Twitter somehow violated his First Amendment right to free speech is a complete misunderstanding of the First Amendment, which applies only to the government, and not private firms.
The First Amendment to the US Constitution indicates: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."
Daphne Keller, an attorney and internet law expert who leads the program on platform regulation at Stanford University's Cyber Policy Center, explains that "The First Amendment is a constraint on the power of government. It doesn't apply to Twitter," Keller further added that "Section 230 makes it relatively easy for platforms to go to court and win saying '"we have the right to enforce whatever policies we want.'"
Essentially, Twitter Inc. would win the case if Trump were to sue.
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