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  • Dr Patrick C Marks

Twitter, Free Speech and YOU!

On Friday, January 8, 2021, the social media platform Twitter permanently banned @RealDonaldTrump. Not long after, Apple, Google and Amazon denied app store space and cloud hosting services to the social media platform Parler where many conservative accounts had landed after the Donald Trump Twitter ban. Parler was effectively silenced and until they can find an alternate source for cloud hosting, they have essentially been run out of business. Many conservatives are crying foul since it appears that Apple, Google, Amazon and Twitter are acting in concert to silence another company that allows speech they don’t like. Parler is arguing in court that these actions are a violation of the Sherman Anti-trust legislation. We shall see...


Many conservatives believe the actions of Apple, Google and Amazon are a threat to free speech. Since social media has become the number one medium of the exchange of information and ideas in this century, having limited access to social media does appear to limit the freedom of speech of those suffering from a ban. But others think that powerful media companies are private companies and as such they can decide what they will or will not allow on their platforms. They think that even if banning people on a private social media platform is censorship, private companies should have the freedom to monitor what they want flowing through their servers.


Besides, anyone banned on Twitter still has free speech – they just need to exercise that freedom somewhere else, right?


So, does the first amendment to the constitution of the United States apply to this situation? Well, it reads “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.” Thus, it is clear that so far as free speech goes, the first amendment is about protection from government power over the individual’s rights to free speech, not about private companies. Case closed – right?


Well…not so fast my partisan friend…


In 2018, President Donald Trump was sued by Knight First Amendment group because he blocked certain people from tweeting or retweeting on his Twitter account. Knight argued that since the President’s account was, in essence, a public forum then as President he would be violating the freedom of speech of users on that forum by banning followers. The court agreed and decided in favor of Knight saying that the President’s account was a public forum similar to a public park.

But if this is the case, then Twitter's ban blocks people from a public forum and that immediately restricts their freedom. Why is a private company allowed to restrict the constitutional freedoms of free American citizens? If some accounts are public forum and others are private, why is Twitter empowered to decide which is which? After all, according to the Knight ruling, @RealDonaldTrump is a public forum - the court decided that, not Twitter - so when Twitter banned Trump's account, they literally destroyed the free speech of millions of people on a public forum.


Twitter is not the government but when a private company unilaterally denies freedom of speech in a public forum – that IS something of concern. While the first amendment is about government restrictions, courts have in the past ruled that private companies need to beware also – which is why we have “fair use” laws for music and films etc. A federal court, not my opinion, determined Donald Trump’s account was public forum so what Twitter did, in my opinion, is a direct threat to freedom of speech.


Now – I’m NOT a lawyer so don’t let not anything I’m saying be construed as providing legal advice. This post is just my non-legal opinion (better to have a clear disclaimer these days). But that is the beauty of freedom of speech. So long as I don’t pretend to be an attorney, I can say what I think about laws etc.


So, it seems to me that when Apple, Google and Amazon reacted to Twitter’s banning of @RealDonaldTrump by restricting posts on their own sites, they also restricted government protected freedom of speech in public forums. Then, by targeting Parler because Parler does not, in their view, adequately monitor the speech on Parler’s site, the social media giants also targeted the government protected free speech of any public forum accounts on Parler too. That directly restricted and threatened the voices of millions of people so it seems to me the actions of Apple, Google, Twitter and Amazon are indeed first amendment issues.


And that does concern me.


Oh - but @RealDonalTrump said nasty things that incited people to insurrection! How can you defend that (you may ask) ???


I don't. This post is NOT about defending (or not defending) Donald Trump. Truly - I didn't Tend to the Tweets that Trump may have Tweeted so I don't know what Taunts he may have Thumbed.


No - this is about free speech. You see, I wonder - because I've said in the past: "You've got to fight, for your right, to party." Now - at the time I may have been young or silly or even quoting a bad rock song but what if someone gets into a fight at a party and says "well, my pastor wrote we have to fight for the right to party so I knocked out twelve people and tore down a sorority house." Am I liable??? I mean, it seems to me you only incite a riot when you're AT the riot egging people on. So - I've said before I don't like a LOT of what Trump has tweeted. I really don't like a fair number of things Biden has to say either but I want to protect the rights of both those guys to say it!


Cuz if the rich and the powerful, the political, the pundits and even the PRESIDENT can go to "Free Speech jail," where does that leave us regular folks?


As a Christian pastor, speaker, teacher, and writer I do not like the idea that my ability to speak publicly about my beliefs may be filtered, restricted or outright blocked by the subjective whim of Jack Dorsey or Jeff Bezos or whatever computer algorithm they want to hide behind. What is to prevent Uncle Jack from deciding my views as a Christian incite hatred because we Christians have the audacity to say some lifestyles are right and others are wrong, so we need to be banned? If my views are subjectively determined to be dangerous or offensive, these social media giants do have the power to restrict my freedom of speech. This has already happened to me and some of my friends. We make jokes about going to “Facebook jail” but it really is no joke. I once had a YouTube video channel but because I was trolled so harshly by those who didn’t like what I had to say, YouTube unilaterally (with no warning, explanation or recourse for me) shut off all ads to my site and suspended my access. Ironically, the channel is still live even though I cannot access it to even shut it down. It’s just no longer mine.


But - you may say - you have freedom of speech on this site (I do - maybe because their servers are in Israel) so who cares if you might be banned on a private companies site. Get over it!


Maybe - but as social media becomes more and more a public forum, common use is going to create a dilemma for courts. I’ve already mentioned fair use laws, but this principle extends to other areas also. For example, easement laws in real estate came about because one private owner cannot restrict access to another person’s private property in most cases. In fact, prescriptive easement laws now exist (differing by state) such that if the public regularly crosses a private owner’s land without being restricted by the owner (for a time period determined by states), an easement is legally created that the owner cannot simply and suddenly decide to restrict. In other words, if a short-cut to the beach crosses private property, and everyone uses the short cut long enough for it to be considered necessary or habitual as determined by state law, then the private owner cannot simply fence it off – if a set time passes, an easement is automatically created.


So – the principle may apply. Does the public use private social media as a short cut to being heard? Has the public been using the social media short cut long enough that it constitutes a habit or appears necessary? Does this mean the private social media owner cannot simply fence it off because a “free speech easement” has been created?


Could be…


Of course, prescriptive easement is real estate legislation and fair use laws have to do with copyrights, but the principles of these public protections might apply – at least in my opinion. Of course, courts will have to decide this issue but in my mind, freedom of speech is threatened when public forum giants such as Twitter freeze out opinions they just don’t like.


None of this is going to be decided or changed by everyday folks like you and me. It will need to wend its wiley way through the courts. In the meantime, however, let us make certain not to lay down and just accept this trend toward restricting freedom of speech. Let us get out there wherever we can and declare boldly “Jesus is Lord, I believe it and I’m unafraid to say it.” Giving up in this arena could mean surrendering other freedoms the first amendment guarantees. If we cave in on free speech, what is to stop the powerful from restricting freedom of religion? After all, many people see various religions or religious beliefs as offensive or inciting hatred.


I hope that old fashioned capitalism will prevail. I hope sites like Parler flourish because while there is plenty of ugly stuff out there that I don’t want to read, the right to put it out there is sacred and important. In fact, let me end by quoting Thomas Jefferson, third President of the United States. I quote him knowing from his writings that if he and I were contemporaries I doubt we would see eye-to-eye but in his first inaugural address, Jefferson was right as rain in my view. He believed that even if someone’s opinion was to overthrow the American government (and he had just spent his life trying to build that government), we should honor freedom of speech enough to allow them to say such things. In doing so our tolerance is like a monument to reason. We would do well to listen to him since we have a country today because of his pen. Jefferson said,


“Every difference of opinion is not a difference of principle. We have called by different names brethren of the same principle. We are all republicans: we are all federalists. If there be any among us who would wish to dissolve this Union, or to change its republican form, let them stand undisturbed as monuments of the safety with which error of opinion may be tolerated, where reason is left free to combat it.”




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