Legally speaking, Twitter and Facebook are in their right to ban Trump and anybody else; but should they be?

The social media giants have the authority as private companies to remove posts and accounts that go against their terms of agreement. They have exercised that power relentlessly, banishing over 70,000 “Q-Anon related” as well as, inexplicably (and not reported as much), many leftist accounts. This is usually done without warning. It might be time to re-evaluate how we view these companies and their control over discourse on the public forums they have monopolized against antitrust laws.

Social media companies are unlike any company that has come before. For lack of relative models of comparison, many have been using the models of publishing companies and public utilities.  For example, if Twitter is a publishing company — like The New York Post or CNN — then they can remove any individual from the platform in the same way that a media outlet can fire an employee for making statements that are not in line with the company’s ideology — or, simply, not take an op-ed or story that doesn’t fit with the publication’s brand. 

Freedom of speech protects us from government reprimand — but it also defends a person or company’s responses to your speech. Is it ethical? Not always. But is it legal? Yes, usually (except in certain cases, such as discriminatory statements that go against equal protections laws or threats of violence or imminent incitement to violence). This means that through the lens of a publishing company, Big Tech is within its rights to delete and ban any posts or accounts that it sees fit. But even if they are publishers, they are effectively forming a cartel and acting in coordination — and they have too much control over public discourse

However, if you look at social media through the lens of a public utility, banning people quickly becomes an infringement on the first amendment due to the monopolistic nature of the companies. As an example: telephone companies are considered utility companies. Any paying customer is allowed to purchase telephone services, regardless of their background. A white supremacist or an extremist cult cannot be denied phone service so long as they pay for it — even if they use that service to spread messages of hate and violence. The phone company cannot stop a person from plotting a murder over the phone, though law enforcement has the right to detain such a person based on evidence acquired from phone conversations.

This utility model is closer to the reality for Big Tech giants, who have total control of the “digital public square,” where so much of public conversation and media coverage occurs. That means higher standards for companies like Twitter and Facebook. This would negate many of terms, and could mean that anything that is legal in the real world (like voicing controversial opinions) is okay on the tech platforms, while anything that is illegal (like child pornography or violent content without a warning) is not. 

READ MORE — Daniel Goncalves: As 2020 ends, censorship and tone-policing increasingly plague media

There is a common rebuttal that people who don’t like Facebook or Twitter’s terms should make their own platform. This argument is largely defeated by the facts that a) other social media apps like Parler were shut down completely by the sole desires of three monopolistic companies (Google, Apple, and Amazon), and b) Facebook buys up most of its competition, hence the current lawsuit against it for breaking antitrust laws with its acquisition of Instagram.

More than half of Americans get their news from Social Media, according to Pew Research. If a person is barred from using any of those sites, they are restricted from receiving news. They are essentially cut off from communicating any of their ideas or receiving any new information. They are isolated from a service that is necessary in our modern world. They are cut off from a utility.

If a person is barred from social media, they are restricted from receiving news. They are essentially cut off from communicating any of their ideas or receiving any new information. They are isolated from a service that is necessary in our modern world. They are cut off from a utility.

Some argue that not everybody should be allowed the right to use these social media services, particularly people who “incite violence.” The First Amendment defends your right to speak in support of law-breaking or violence unless it directly encourages people to take said unlawful action immediately, as per the Supreme Court (Brandenburg v. Ohio, 1969). While the metrics by which an individual defines “incitement of violence” may vary from person to person, the law of the land has pretty clear guidelines on the immediacy of that violence if it rises to the level of incitement.

So, is it time that we consider these social media giants to be the utilities that they are — like phone companies — and demand that there be no bans? Should we allow for greater freedom of speech on these platforms? Should law-enforcement agencies be responsible for dealing with any potentially illegal activities? Or, do we need to force tech giants to open up the market, allowing new social media platforms to blossom and give every app the power to mandate public discourse on their sites, as a publishing company would?

Big Tech has already removed hundreds of thousands of accounts in the past three years for a myriad of reasons ranging from foreign interference (“they were associated with foreign state-related media”) to the speculative (“we think it violates our firearms policy”). Tech oligarchs have flexed their muscles in banning any account — liberal or conservative — that doesn’t fit their political ideology. Black Lives Matter activists, Wikileaks supporters, and Second Amendment advocates have already been victims of this prosecution. Reporters covering peaceful protests and journalists writing anti-establishment articles have had their posts removed and accounts blocked for little to no reason. The issue of tech censorship has been a growing problem for years (free speech advocates decried Alex Jones’s de-platforming over his disturbing and harmful conspiracy theories in 2018), and if we do not stop the authoritative power of these companies soon, then they will never be stopped. We will end up with timelines that only relay information that fits the ideological mold of the host platform. 

The monopolistic nature of Big Tech has already permeated into every node of our online existence; it shouldn’t have the same unilateral power over our expression of ideas and beliefs.

Daniel Goncalves is a writer from New Jersey focusing on our nation’s damaged system of government. When he isn’t ranting about politics, or working, he is writing fiction, playing soccer, or woodworking. @dc_gonk