In a single swipe, Twitter and Facebook have done what the U.S. government and the Constitution could not: delete the power of an irreverent president to rile and rally Americans to violent action.
Twitter announced Jan. 8 that it permanently suspended Trump’s account, while Facebook announced Jan. 7 it had suspended Trump’s account indefinitely.
Let’s be clear. The decision by the two social media giants to muzzle Trump for incitement following his call to protesters against his election defeat to march on the U.S. Capitol – leading to a riot that left five people dead – has nothing to do with the First Amendment to the Constitution.
The amendment states: “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.”
This precious right enshrined in the Constitution restricts actions of the government – not private companies or individuals.
Twitter said in a blog post that it decided that Trump’s words were inflammatory and suspended his account “due to the risk of further incitement of violence.”
“We believe the risks of allowing the President to continue to use our service during this period are simply too great,” Facebook CEO Mark Zuckerberg said in a statement. “Therefore, we are extending the block we have placed on his Facebook and Instagram accounts indefinitely and for at least the next two weeks until the peaceful transition of power is complete.”
In essence, the decision by Twitter and Facebook was tantamount to a private embrace of the responsibility to ensure public safety.
In this instance, they got it right.
Who Protects Fairness and the Public Interest?
Were the companies motivated by sheer self-interest in avoiding liability for the death and destruction that took place at the Capitol, or by a genuine concern for the public interest? We will never know.
But are we willing to rely on the judgment of Silicon Valley billionaires to always make the right decisions? And how can we ensure that political bias of any type remains absent from their decisions?
Today it is Trump banned from Twitter and Facebook. Tomorrow it could be Black Lives Matter or any other “progressive” organization that runs afoul of our societal notions of safety, propriety, and decency. So the issue is a matter of principle, not partisanship.
Is Big Tech More Powerful Than Government?
And thus the debate: Should a private company like Twitter or Facebook have more power than the government to quash the speech of any individual, whether the president of the United States or Joe Six-Pack?
Answering the question now is essential for our society. The reality is that the Big Tech companies – Amazon, Google, Facebook, Twitter, and others – will only become bigger and richer year-by-year.
So our government has to decide how much intrinsic power it will allow these companies to wield in our daily lives – power that in many cases surpasses the authority of the federal and state governments.
As sacred as political speech is to our American heritage, it is but one of the fundamental freedoms upon which Big Tech often impinges. Consider the range of issues raised by the privacy practices of the social media giants – including the collection, harvesting, and sale of our personal information and related data.
What Should Congress Do?
The action by Twitter and Facebook comes at a time when the 117th Congress will stare down the companies in the continuing series of hearings on Big Tech regulation. Congress is still struggling with its own ability to limit the abuses of Big Tech, while at the same time not stifling the innovation and valuable services the companies provide to consumers and business.
In addition, the leadership of the Justice Department under incoming President Joe Biden will have to realign its agenda to address these issues differently than the outgoing Trump administration.
This is all very complicated and requires a balancing of competing interests.
Some lawmakers have been highly critical of Big Tech’s lack of responsibility and accountability for the content published over company platforms. Rightly so.
Members of Congress have called for more balanced and less biased content moderation policies when it comes to political and campaign postings, and recommend a thorough review of a provision in the law known as Section 230 that protects social media companies from legal liability for content posted by users.
Section 230’s continued viability may have been extended by the quick actions of Facebook and Twitter to block the inflammatory posts by Trump and by some others.
Nevertheless, it will be a long while before definitive legislative action on tech regulation is passed, if at all. Even after the horrific riot at the Capitol, the new Congress is sure to be focused on the COVID-19 crisis and will be looking backward, not forward, when it comes to tech regulation and reform.
The Challenge for Big Tech
In the meantime, and until there is meaningful legislation, the challenge for Big Tech is to self-regulate with an even hand.
This will require: creating a set of uniform principles and practices; establishing an independent board of outside governors; and developing robust rules for enforcement, including a framework for review and referral of violations of its practices to the Federal Trade Commission or Department of Justice for penalties and enforcement.
Equally important, Twitter, Facebook, and other social media companies should seek compromise with federal and state governments to mitigate protracted antitrust litigation. If ever there were a time for these companies to embrace the notion of public-private partnership, it is now.
The world will never forget the desecration of democracy that occurred at the Capitol on Jan. 6, fomented by the words of President Trump. But the role that social media played in its aftermath is an ongoing narrative, written and edited in real-time by the titans of Big Tech.
Big Tech firms like Twitter and Facebook have a unique opportunity not only to stand on the right side of history but also to do what government itself cannot do. Advancing public safety was but the first step on the road to responsible corporate citizenship. It should not be the last.
Adonis Hoffman, Esq. is chairman of Business in the Public Interest and CEO of The Advisory Counsel, Inc. He is a former senior official at the FCC and senior counsel in the House of Representatives. Mr. Hoffman is a member of The Media Institute’s Board of Trustees and First Amendment Advisory Council. This article appeared in foxnews.com on Jan. 9, 2021.