Christina Bambrick is an Assistant Professor in the Department of Political Science at the University of Notre Dame. Her research interests include constitutional theory and development, American and comparative constitutionalism, and the history of political thought.
The issues many are raising about the power of Facebook, Twitter, and Big Tech in general are a direct result of the way we understand public and private actors in the United States. Many in recent days have pointed out that private companies, including social media platforms, are not accountable to constitutional rights—they have no obligation to uphold the freedom of speech. While correct, such takes presuppose that the primary question at hand is, indeed, about mere speech. On the contrary, when one considers the sequence of events (or of tweets, as the case may be) from election day to the Capitol riot, what emerges is not a simple story about private companies’ suppression of speech. Rather, these companies arguably limited a particular category of speech that even the First Amendment does not protect, namely speech that leads to violence.
That private actors are not accountable for constitutional rights has generally been supposed to promote liberty. Indeed, when private actors are not beholden to the state’s commitments, they may pursue their own commitments and projects more freely. In the context of social media companies, we might say that they may maintain their own “community standards” or rules for user content. Despite what those who recently jumped the Facebook ship may think, even Parler maintains rules against pornography, promoting marijuana, obscenity, and “false rumors” , thus suppressing speech that the First Amendment would in fact protect. In contrast, other companies’ steps to limit the speech of Trump and certain corners of his base do seem to align with how constitutional law understands the acceptable limitation of freedom of speech.
In Brandenburg v. Ohio, the Supreme Court decided that speech may be limited when “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” One could debate the “imminence” of Trump’s tweets relative to the Capitol riot. But taking his tweets together with his comments that immediately preceded the riot, one could make a compelling argument for their imminence let alone their central role in propelling the violence that followed.
That Twitter waited until after this point to shut down Trump’s profile shows restraint. That Amazon waited until it was clear that this act of sedition had largely been planned on such sites as Parler shows restraint. If these companies were merely in the business of limiting Trump’s inflammatory speech, they would have done so much sooner. And, indeed, they could have done so much sooner since they need not even consider whether their actions conform to a constitutional standard.
We can and should call on social media companies to be consistent—they ought to shut down any group conspiring to riot, loot, and the like. But let’s be clear, too, of the significance of breaching the seat of government. No riots may be good, but this one by itself shakes the country to its foundations. Whose freedom of speech will be protected if we have no government of which to speak? Whose rights will be protected when lawmakers are afraid to certify elections results because they and their families have received death threats?
Moreover, let’s not pretend that one course of action is more neutral than the other—that forcing Twitter to host speech facilitating violent insurrection is somehow more neutral than it deciding not to be so complicit. Freedom of speech is about freedom, yes. But any definition of freedom or rights must be grounded in some larger moral understanding. Put differently, we only have rights in the context of larger accounts of our nature as moral beings. In this light, there are in-built limits to what our rights are for and how they may be exercised. Many of our rights may be inalienable, but it does not follow that any action, any word, counts as a protected exercise of our rights. Much depends on why we classify and why we protect something as a right in the first place. Do we protect speech because of the vast importance of debating openly, freely, and peacefully in a self-governing society? Then speech hindering that purpose is unlikely to be protected. Do we protect speech because we are reasonable beings with the duty to seek truth? Then speech advancing falsehoods to further one’s own interests is unlikely to be protected.
We as a country can decide whether and how we need to rein in Big Tech. Indeed, we need to have this conversation. But in this instance, the relevant question ceased to be one about mere speech, becoming instead one about violence inflicted both against people and against our institutions.