Examining Media Law Surrounding President Trump’s Suspension from Twitter
President Trump’s Suspension from Twitter
After uncertainty of who won the 2020 presidential election, tensions in the United States were high as many believed Joe Biden should be certified because of his electoral votes. On January 6, 2021, the decision was to be made by a joint session of Congress.
Before the session began, President Trump gave a speech to thousands of his supporters and directly addressed Vice President Mike Pence asking him to deny Biden’s win. At the end of his speech, Trump said, “We’re going to the Capitol…” (Timeline: How the Jan. 6 Attack on the Capitol Unfolded : NPR, n.d.).
Attendees of the rally began walking to the Capitol, and as more people joined, the crowd became violent. They pushed past the Capitol Police and eventually stormed the Capitol, leading to the death of five people and the injuries of many others. Though the session was stopped due to the break-in, Biden’s presidency was still confirmed, and many blamed President Trump for the actions at the Capitol.
On January 8, 2021, Twitter released an official statement announcing the suspension of President Trump’s account, @realDonaldTrump. “We have permanently suspended the account due to the risk of further incitement of violence,” Twitter said. “In the context of horrific events this week, we made it clear on Wednesday that additional violations of the Twitter Rules would potentially result in this very cause of action” (Permanent Suspension of @realDonaldTrump, n.d.).
According to Twitter, two of President Trump’s tweets on January 8 went against the regulations, which lead to his suspension. The first tweet stated, “The 75,000,000 great American Patriots who voted for me, AMERICA FIRST, and MAKE AMERICA GREAT AGAIN, will have a GIANT VOICE, long into the future. They will not be disrespected or treated unfairly in any way, shape or form!!!” (Permanent Suspension of @realDonaldTrump, n.d.). The second tweet read, “To all of those who have asked, I will not be going to the Inauguration on January 20th” (Permanent Suspension of @realDonaldTrump, n.d.).
Twitter further justified their decision by explaining that the tweets in question propelled the idea that the election was rigged, and the use of the term “America Patriots” was an innuendo to his violent supporters responsible for the attack, among other reasons (Permanent Suspension of @realDonaldTrump, n.d.).
Twitter’s ban stirred the pot, particularly in conservative media, and fueled discussions throughout the country about First Amendment free speech, especially for government officials on social media.
Government Speech and Public Forum Doctrine
Government speech doctrine is an extension of the First Amendment allowing government officials different speech protections due to the nature of their work. “The underlying rationale for government speech doctrine is that the government could not ‘function’ if the government could not favor or disfavor points of view in enforcing a program,” according to Constitution Annotated (Government Speech Doctrine | Constitution Annotated | Congress.Gov | Library of Congress, n.d.). One of the important distinctions of government speech doctrine is that government officials are protected from “disciplinary actions taken as a result of statements made by public employees pursuant to their official duties” (Government Speech Doctrine | Constitution Annotated | Congress.Gov | Library of Congress, n.d.).
Although it is not clear whether President Trump’s tweets, especially on January 6, would be considered pertinent to his official duties, his speech as a public employee should be protected under government speech doctrine because it overrides public forum doctrine (Roberts, 2019). The legal definition of a public forum is a place that allows citizens to practice their freedom of speech and assembly, either by historical standing or government designation (Legal Definition of PUBLIC FORUM, n.d.). However, with more citizens using the internet and social media platforms to assemble, particularly for political activism, knowing what counts as a public forum becomes increasingly difficult. In most cases exploring government speech on the internet, like Putnam Pit, Inc. v. City of Cookeville and Cahill v. Texas Workforce Commission, the court established websites as a non-public forum, which protected their speech (Ardia, 2010). However, this was not the case for President Trump.
Before the events on January 6, 2021, President Trump’s Twitter account was already a controversial topic. It was called to attention that the president had blocked seven people from his account after the individuals responded negatively to one of his tweets. On behalf of those individuals, the Knight First Amendment Institute at Columbia University filed a lawsuit against President Trump in 2017 (Knight Institute v. Trump, n.d.).
The trial took place in the U.S. Court of Appeals, and the issue was whether or not a social media account run by a government official could block citizens, even though blocking is acceptable for regular accounts (Knight Institute v. Trump, n.d.). The Knight First Amendment Institute argued the individuals would be allowed to exercise their opinions in a physical public forum without worry, but because of the medium, the president could silence their opinions. However, President Trump argued his actions should not be subject to constitutionality because it was his personal account (What Constitutes a Public Forum on Social Media?, n.d.). The court held in a 3-0 decision that blocking citizens is a violation of their First Amendment freedom of speech and petition due to the nature of Trump’s position in the federal government (Knight Institute v. Trump, n.d.).
Before this case, it was even difficult to approve an airport as a public forum due to the lack of historical relevance as seen in International Society for Krishna Consciousness, Inc v. Lee (Ardia, 2010). Knight First Amendment Institution v. Trump established the idea that government-run internet platforms can be classified as a public forum, and the court specifically classified President Trump’s account as a designated public forum.
This means, going forward under public forum doctrine, President Trump’s Twitter account would have user regulations, could be subject to intermediate scrutiny, could not discriminate against users based on content and could not keep people from accessing the forum (Ross et al., 2020). However, in the context of the president’s suspension, his speech as a government employee should remain protected under the government speech doctrine despite the type of public forum his account was deemed.
The Brandenburg Incitement Test
The primary reason Twitter suspended President Trump from their platform was “due to the risk of further incitement of violence” (Permanent Suspension of @realDonaldTrump, n.d.). This implicates President Trump had already incited violence on their platform, yet Twitter did not show any previous tweets presenting this concern. Therefore, the tweets called into question are the only basis for whether the president was inciting violence.
The term “inciting” violence describes the transition from merely offensive, protected speech to speech that directly urges violent behaviors, and it can actually be proven in a court of law (Jaconelli, 2018). In Brandenburg v. Ohio, Clarence Brandenburg was convicted for attempting to overthrow the government after a speech he performed to fellow Ku Klux Klan members was televised (Ross et al., 2020). The speech contained lofty references to specific government leaders (Ross et al., 2020). The Supreme Court decided Brandenburg’s speech was protected because it was freedom of expression, and they established what is called The Brandenburg Incitement Test.
In order for the courts to prove someone was inciting violence with their speech, they must prove the “speaker intended to and was likely to incite imminent violent or illegal action” (Ross et al., 2020). Additionally, under the Brandenburg test, speech cannot incite violence unless there is no other direct explanation for the violent acts (Ross et al., 2020).
The president has already been sued for inciting violence in 2017 after a protester was forcefully removed by Trump supporters at a Trump rally (Ross et al., 2020). Although Trump did reference removing the protesters during his speech, the Sixth Circuit Court threw out the case because the president’s intent to incite violence was merely speculative (Ross et al., 2020).
After the attack on the Capitol on January 6, President Trump was sued by many, including two Capitol Police Officers and a House Democrat, for inciting violence (Haltiwanger, n.d.; Trump Sued by Two Capitol Police Officers for Inciting Riot - Bloomberg, n.d.). However, Twitter has yet to sue President Trump for incitement of violence on their platform.
The likelihood of President Trump’s tweets proving incitement is very low in the court. “Media content does not ordinarily provoke such a rapid response,” according to The Law of Journalism and Mass Communication. “When seeing, reading or hearing media material, a person must process the information before taking action. There generally is time to prevent a person from committing violent acts” (Ross et al., 2020). This issue becomes whether Twitter has the authority to prove incitement without the courts, and therefore suspend an account.
The Communications Decency Act
The Communications Decency Act was created by Congress in 1996 to protect platforms like Twitter from being liable for the content posted on their site, considering they are just providing the space for public discourse (Johnson & Castro, 2021).
Specifically, section 230 (c) (2) of the act protects third party platforms from “any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected…” (47 U.S. Code § 230 - Protection for Private Blocking and Screening of Offensive Material, n.d.). Further, third party platforms are not liable for allowing obscene, lewd or violent content (Johnson & Castro, 2021). This section of the act was created in response to several lawsuits like Cubby v. CompuServe where an internet service provider was sued for defamatory remarks made by one publication about another (Johnson & Castro, 2021). The court decided CompuServe should not be liable for the defamatory remarks because they were not tracking the content posted on their platform (Johnson & Castro, 2021).
Despite the good intentions of creating section 230, it allows social media companies to have full control and discretion over what content is seen on their platforms without being liable for the content posted, and the only limitations to section 230 are within Copyright and Sex Trafficking laws (Johnson & Castro, 2021).
Due to the lack of limitations, the act overrides any protections the government speech doctrine or the Brandenburg test may provide for users such as President Trump.
Conclusion
On July 7, 2021, President Trump filed a class action lawsuit against Twitter, Facebook and Google (“Trump Files Class Action Lawsuits Targeting Facebook, Twitter and Google’s YouTube over ‘Censorship’ of Conservatives,” n.d.-a). He believes social media companies and internet service providers instigate purposeful suppression of conservative voices (“Trump Files Class Action Lawsuits Targeting Facebook, Twitter and Google’s YouTube over ‘Censorship’ of Conservatives,” n.d.-b).
There has been no legal action from Twitter after suspending the president’s account, probably because their suspension is protected by Section 230. Based on the Communications Decency Act, Twitter was not illegally suspending the president from the platform. However, this raises bigger ethical questions. Is it okay for social media companies to override constitutional protections? What message is Twitter conveying to the world when choosing to suspend the President of the United States but not leaders of terrorist groups? Should Twitter have the privilege of determining incitement?
Section 230 should be revised and tailored to fit our current social media uses, which will require organizations like Twitter to legally prove why they suspend specific accounts. If Twitter could prove President Trump was intentionally inciting violence through his tweets in a court of law, his suspension would be less controversial. It is only because the Communications Decency Act allows the platform to have power over government speech doctrine and the Brandenburg test that it has caused an uproar.
In his class action lawsuit, President Trump plans on fighting his suspension from Twitter, YouTube and Facebook, which all suspended him for similar reasons, arguing his suspension is against his First Amendment right to free speech (“Trump Files Class Action Lawsuits Targeting Facebook, Twitter and Google’s YouTube over ‘Censorship’ of Conservatives,” n.d.-b). However, it’s unlikely any change will come until section 230 of the Communications Decency Act is revised.
Resources
47 U.S. Code § 230—Protection for private blocking and screening of offensive material. (n.d.). LII / Legal Information Institute. Retrieved February 15, 2022, from https://www.law.cornell.edu/uscode/text/47/230
Ardia, D. S. (2010). Government Speech and Online Forums: First Amendment Limitations on Moderating Public Discourse on Government Websites. Brigham Young University Law Review, 2010(6), 1981–2044.
Government Speech Doctrine | Constitution Annotated | Congress.gov | Library of Congress. (n.d.). Retrieved February 19, 2022, from https://constitution.congress.gov/browse/essay/amdt1_2_7_1_1/
Haltiwanger, J. (n.d.). Trump sued for “incitement to riot” and terrorism over Capitol attack by House Democrat who served as impeachment manager. Business Insider. Retrieved February 20, 2022, from https://www.businessinsider.com/trump-sued-for-incitement-to-riot-terrorism-over-capitol-attack-2021-3
Jaconelli, J. (2018). Incitement: A Study in Language Crime. Criminal Law and Philosophy, 12(2), 245–265. https://doi.org/10.1007/s11572-017-9427-8
Johnson, A., & Castro, D. (2021). Overview of Section 230: What It Is, Why It Was Created, and What It Has Achieved. Information Technology and Innovation Foundation. https://itif.org/publications/2021/02/22/overview-section-230-what-it-why-it-was-created-and-what-it-has-achieved
Knight Institute v. Trump. (n.d.). Retrieved February 19, 2022, from https://knightcolumbia.org/cases/knight-institute-v-trump
Legal Definition of PUBLIC FORUM. (n.d.). Retrieved February 19, 2022, from https://www.merriam-webster.com/legal/public+forum
Permanent suspension of @realDonaldTrump. (n.d.). Retrieved February 15, 2022, from https://blog.twitter.com/en_us/topics/company/2020/suspension
Roberts, J. (2019). Trump, Twitter, and the First Amendment. Alternative Law Journal, 44(3), 207–213. https://doi.org/10.1177/1037969X19831102
Ross, S. D., Reynolds, A., & Trager, R. (2020). The Law of Journalism and Mass Communication (7th ed.). SAGE.
Timeline: How the Jan. 6 attack on the Capitol unfolded: NPR. (n.d.). Retrieved February 19, 2022, from https://www.npr.org/2022/01/05/1069977469/a-timeline-of-how-the-jan-6-attack-unfolded-including-who-said-what-and-when
Trump files class action lawsuits targeting Facebook, Twitter and Google’s YouTube over ‘censorship’ of conservatives. (n.d.-a). Washington Post. Retrieved February 19, 2022, from https://www.washingtonpost.com/technology/2021/07/07/trump-lawsuit-social-media/
Trump files class action lawsuits targeting Facebook, Twitter and Google’s YouTube over ‘censorship’ of conservatives. (n.d.-b). Washington Post. Retrieved February 19, 2022, from https://www.washingtonpost.com/technology/2021/07/07/trump-lawsuit-social-media/
Trump Sued by Two Capitol Police Officers for Inciting Riot—Bloomberg. (n.d.). Retrieved February 20, 2022, from https://www.bloomberg.com/news/articles/2021-03-30/trump-sued-by-2-capitol-police-officers-for-inciting-wild-riot
What Constitutes a Public Forum on Social Media? (n.d.). Retrieved February 19, 2022, from https://www.americanbar.org/groups/crsj/publications/human_rights_magazine_home/the-ongoing-challenge-to-define-free-speech/public-forum-social-media/