Con: Not Legally or Even Intuitively an Infringement of Free Speech


The following editorial was originally published in the Honolulu Star-Advertiser on Sunday, February 7, 2021 as part of the "Raise Your Hand" column in the Insights section.

Northeastern University ℅ 2021, Punahou School ℅ 2017

The conversation about the power of big technology companies, or “Big Tech,” is a long and important one, but there is a simple answer to whether Big Techs’ recent actions against Donald Trump are an infringement on free speech. No, they are not. Not legally, or even intuitively.

The First Amendment, which guarantees an American citizen’s right to free speech, doesn’t apply to private companies like those of Big Tech. It prevents the government from infringing on free speech. As a result of Hudgens v. National Labors Relations Board in 1976 and more recently, in Manhattan Community Access Corp. v. Halleck in 2019, the United States Supreme Court held that the First Amendment falls outside the scope of a private company’s responsibilities. Big Tech is further protected by the Communications Decency Act under the “good Samaritan” subsection, which allows them to restrict access to objectionable material.

Big Tech is, however, responsible for holding users of their platforms, regardless of status or title, accountable under their respective codes of conduct. Users who create accounts, especially on social media, typically agree to a company’s terms and conditions upon registration. Contingent upon their registration is the user’s agreement to accept consequences if they break those rules. Companies like Twitter and Facebook warned Donald Trump of his violations of their policies, particularly their Civic Integrity policy, which seeks to protect the integrity of online information - something that Donald Trump himself has often criticized Big Tech for in the past. He was informed of the possible consequences well before the ultimate suspension of his accounts.

In recent years, Big Tech has been scrutinized for the immense power they hold over online information. As the platforms host incredulous amounts of online discourse, they have become the facilitators and mediators of those conversations by default. The question of how to exercise this power is one that everybody–CEOs, lawmakers, and everyday internet users like myself–continues to seek an answer for. Thus, we turn to the framework that society so often does when faced with tough questions: ethics. This was not an attempt by Big Tech to actively embarrass or suppress the President or his supporters. Rather, it was a reactive effort to step in and fulfill a common responsibility to remain ethical and even do social good. The events of January 6, 2021, resulted in violence and American casualties, so it’s not unreasonable for companies to speculate similar future events to occur if no action is taken. Since no company has a monopoly on the endless stream of discourse online, they are relegated to using their limited power to intercede only when they manage to catch harmful speech on their own platform – by restricting people's social media privileges. Thus, companies don't have absolute power to fully stop a lurking danger. However, if they can use their limited power to prevent violence and mitigate harm within their control, shouldn't they?

Under our Constitution, Big Techs’ actions were not an infringement on free speech. Independent of our Constitution, this was merely an attempt by Big Tech to do right by society. Consider the reason the First Amendment exists. It exists so that an ever-changing, continuously growing country can receive dissent from its own people, learn from the criticism, and become better — in short, to allow for progress. Entitlement to certain speech doesn’t mean that that speech is constructive, or even morally good. We should be mindful that our right to free speech is not an excuse to allow harmful or taunting rhetoric, or in Twitter’s words, “undermine the core tenets of freedom of expression.”

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