So ,when are private companies morally permitted to refuse to provide services? Its widely thought that private companies provide services at their own discretion with the important exception that they cannot refuse service on discriminatory grounds, e.g. because of race, gender, religion, sexual orientation and so on. The reasons that Twitter appeal to, i.e. preventing risk of violence, don’t appear discriminatory.
Prima facie, the claim that Twitter has wrongfully interfered with Trump’s free speech appears difficult to sustain because Trump has many avenues to exercise his free speech. As a rich and powerful man he has much more power to have his views heard than most of us will ever enjoy. So, if Twitter has wronged Trump, it has done so by violating his right to express himself through Twitter in particular (if such a right exists), and not by violating his right to free speech in general.
Here, I argue that the original suspension of Trump’s account was justified but not its permanence. So I agree with Musk, in part. I suggest a modified system of suspension to deal with rule breakers according to which Trump’s access should be reinstated.
Trump is currently taking legal action against his suspension on the grounds that it violated his free speech rights. However, to succeed under US law, he has to show that Twitter was acting as a government censor. Assuming Twitter were not directed by the government but simply acting as a private company, then they are legally justified in permanently suspending Trump’s account. Private media companies are not obliged to publish or host anyone’s messages. But, legal matters aside, we might wonder whether Twitter is morally justified in banning Trump.
On January 6th, 2021 Trump was locked out his Twitter account for 12 hours after describing the people who stormed the US Capitol as “patriots”. A few days later, his account was permanently suspended after further tweets that Twitter judged to risk “further incitement of violence” given the socio-political context at the time. Elon Musk has recently claimed that, if his deal goes through to take control of Twitter, he would reverse the decision to ban Trump because it was “morally bad and foolish in the extreme”.
However, opponents might claim those reasons are merely a front and the real reasons for the ban discriminate against Trump on grounds of his political beliefs or affiliation. It is more controversial as to whether it is morally permissible to discriminate against someone on account of their political beliefs or affiliation. This probably turns on whether a person’s political beliefs or affiliations are themselves intolerant of others, e.g. KKK affiliation and beliefs about white supremacy. Arguably, it is justified to refuse service on the grounds that we shouldn’t tolerate those who won’t tolerate others. Indeed, ex-KKK grand wizard David Duke was (eventually) banned from Twitter for behaviour violating the ‘hateful conduct’ rules. But before getting into the quagmire of whether Trump’s political beliefs or the Republican Party are intolerant of other races, religions, and so on, we can note that the charge of political discrimination doesn’t stack up. Twitter doesn’t systematically ban Republicans. In fact, there is some anecdotal evidence that Twitter goes out of its way to protect the accounts of Republican politicians by reducing the power of the moderating algorithms that would otherwise flag their accounts (perhaps as false positives) as propagating white supremacist content.
This monopoly over access to a massive public space online arguably brings with it more moral obligations than a typical service-providing company. To ban someone from Twitter is to exclude them from a large forum for public interaction where a proportion of the discussion relevant to the direction of society takes place. Free speech rights are to protect citizens’ ability to contribute to discussion about the direction of society so it appears that should extend to ‘tweeting’. We might think that the weight of one’s claim to be able to tweet is proportionate to the significance of the discussion that happens on Twitter relative to other fora. It’s difficult to quantify the significance of the public discussion on Twitter relative to Facebook, Instagram, letters to the editor of the newspaper, or talking to people in the literal town square, and so on. However, the Supreme Court of the US unanimously recognized social media as the most important form of interaction for the exchange of ideas between citizens and government (Packingham vs North Carolina 2017). So we can certainly say that Twitter, as one of the major providers of social media, is an important forum for public discussion. Therefore, Trump could be said to have a right to tweet even if he has the power to communicate in other fora.
Of course, many would object that Twitter is not your typical service-providing company and so the moral picture is more complicated. Twitter provides access to particular form of online interaction with over 300 million monthly users (some of whom are famous and powerful). Musk describes it as a ‘defacto town square’, though there are significant disanalogies, not least of which that Twitter is less democratic than an ideal public forum because it amplifies the voices of famous people over typical citizens. It would be a stretch to say that Twitter offers an essential public service – there are other public fora for people to discuss the issues of the day – but it does have a monopoly over a particular form of public interaction with a particular network of people.
By Doug McConnell
When democracy is damaged everyone’s right to free speech is put at risk. Trump was essentially trying to override the voices of the majority of Americans and create the conditions where a small minority could violently assert power rather than engage in the democratic process. It’s clearly inconsistent to appeal to your own right to free speech when the goal of that speech is to trample over the rights of millions of other people’s free speech and establish a precedent for the future suppression of those rights.
Not only is the motive of political discrimination not well-supported, it seems plausible that Twitter was genuinely worried about the potential for Trump to incite further violence given Trump’s regular lies that the election was stolen from him, the storming of the Capitol, and the febrile post-election social atmosphere. So, if Twitter is a private company like any other, then it would seem to be morally permissible to deny Trump service in this context and on the grounds they cite.
Of course, one might accept that suspending Trump’s account was justified but argue that the permanence of the ban was disproportionate. Since Twitter banned Trump, a ‘strike’ system has been developed where continued rule violations result in escalating account locks ranging from 12-hour to 7-day suspensions. Five or more ‘strikes’ leads to permanent suspension. So there is ample warning built into this system but no possible redemption/rehabilitation for a 5-strike offender. Clearly not everyone is deterred by this punishment and this leads to their permanent exclusion from this public forum even if they might later be able to cooperate with the rules. This seems unfair and doesn’t align with our attitude to criminal punishment. Although a criminal record is typically permanent and might exclude one from some forms of public service, it usually isn’t thought to be sufficient to exclude someone from contributing to public discussion or voting. To permanently exclude people only contributes to resentment and social fragmentation.
Of course there are wrongful actions within a forum that can outweigh one’s right to freely participate. Sometimes this is straightforward, e.g. if someone was using Twitter for the purpose of human trafficking (and obviously the state would also attempt to enforce sanctions in such cases). Were Trump’s tweets sufficiently wrongful to outweigh his right to participate? I think so. Trump was using Twitter to incite violence and undermine US democracy by promulgating his ‘big lie’ that the election was rigged.
Musk also claims to prefer temporary suspensions and other narrowly tailored punishments for content that is illegal or otherwise “destructive to the world.” However, his claim to being a free speech absolutist and his critique of the original suspension of Trump’s account suggests that he would also relax the rules that lead to suspensions. I would disagree with that and the legislation being passed by the European Union suggests that they would too but that debate is for another time.
I think permanent bans from public discussion are always disproportionate. I suggest that Twitter should modify their strike system to include 3-month, 6-month, and year-long suspensions. People coming back from year-long suspensions would immediately face longer suspensions if they reoffended, e.g. a 7 day suspension might be imposed at the first strike. Trump has now been banned for over a year, so, on my system, his account should be available to him. However, were he to break the rules again, then the longer bans for reoffenders would be swiftly reimposed. Relaxing the length of suspensions doesn’t entail relaxing the rules governing use of speech on the platform.