|The U.S. President was widely banned on social media platforms after his role in the attack on the U.S. Capitol during the certification of President-elect Joe Biden’s win.|
Because of the role President Donald Trump played directly and indirectly in the events of 6 January 2021 at the United States (U.S.) Capitol, Twitter, Facebook, and other technology companies took steps to limit Trump’s usage of their platforms, some temporarily and some permanently. Other right wing and extremist figures were also banned in a flurry over a period of a few days as well. To be sure, these decisions were greeted with praise and criticism across the political spectrum in the U.S. in much the same ways as decisions to moderate, comment upon, or block materials in the run up to the election were. These decisions will alternately be seen as further censoring of views from the right, too little too late to the many on the left, and as social media platforms seeking favor with the new government coming into power on 20 January that will be able to get its nominees through the Senate allowing for potentially greater regulation.
As a legal matter, it seems to be settled law that 47 USC 230 gives the platforms complete legal protection for removing and moderating content and users. Moreover, recent Supreme Court jurisprudence makes clear that private actors are not bound by the First Amendment’s guarantee of free speech that is binding on government entities and actors. Whether this is the proper construction of the First Amendment is a different issue. A number of precedents from the mid-20th Century allowed for the exercise and protection of free speech on private property that was functionally considered public property (e.g. neighborhoods or shopping malls.) Perhaps this is where U.S. policy and law will go, but, for now, it seems entirely legal for Twitter, Facebook, and others to ban users if they choose as they are not government actors.
As mentioned, these actions are sure to inform any action Congress and the Biden Administration consider in respect to reform of 47 USC 230 (Section 230.) There may be shared concern about the power that tech giants have in deciding which people can post material on widely used platforms. There is also likely to be disagreement about Section 230 should be reformed with conservatives consistently claiming without substantial evidence that the Twitters of the world unfairly discriminate against them and liberals decrying the widespread lack of action taken by platforms about the abuse women, minorities, and others suffer online. It remains to be seen whether and how Democrats and Republicans can bridge their differences. In any event, President-elect Joe Biden famously asserted in an interview that he believes that Section 230 should be entirely repealed. Whether this is his White House’s policy position is not clear at this point. However, the decisions of these platforms this past week will definitely be part of any policy and political debate.
In response to the lies President Donald Trump told about the 2020 Presidential Election in a video ostensibly meant to calm the rioters who took over the U.S. Capitol, Twitter took the unprecedented step of blocking Trump for 12 hours from his account and possibly longer until he takes down the untrue, inflammatory content. Twitter’s Safety account tweeted:
As a result of the unprecedented and ongoing violent situation in Washington, D.C., we have required the removal of three @realDonaldTrump Tweets that were posted earlier today for repeated and severe violations of our Civic Integrity policy. This means that the account of @realDonaldTrump will be locked for 12 hours following the removal of these Tweets. If the Tweets are not removed, the account will remain locked.
Early on 7 January, Trump removed the tweets that led to his suspension.
In a blog posting, Twitter announced a permanent ban of Trump’s account
After close review of recent Tweets from the @realDonaldTrump account and the context around them — specifically how they are being received and interpreted on and off Twitter — we have permanently suspended the account due to the risk of further incitement of violence.
Twitter cited these two tweets as violating their policies when read in the context of events on 6 January 2021:
- “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!!!”
- “To all of those who have asked, I will not be going to the Inauguration on January 20th.”
Twitter concluded: “our determination is that the two Tweets above are likely to inspire others to replicate the violent acts that took place on January 6, 2021, and that there are multiple indicators that they are being received and understood as encouragement to do so.”
Twitter also moved to permanently ban Trump allies former Lieutenant General Michael Flynn and lawyer Sidney Powell. Additionally, Google’s YouTube banned former White House advisor Steve Bannon for violating its policy that affords a certain number of strikes within a 90-day period. Bannon had hosted Rudy Giuliani after the 6 January attack, and hours later YouTube acted. The platform explained: “In accordance with our strikes system, we have terminated Steve Bannon’s channel ‘War room’ and one associated channel for repeatedly violating our Community Guidelines.”
Snapchat also announced it had locked Trump’s account. In mid 2020, this platform had started not promoting Trump’s snaps after he made statements in opposition to the protests against police brutality on Snapchat.
Facebook has also banned Trump. At first, on the day rioters stormed the Capitol, Facebook “removed from Facebook and Instagram the recent video of President Trump speaking about the protests and his subsequent post about the election results…[on the rationale that] these posts contribute to, rather than diminish, the risk of ongoing violence.” Later that day, Facebook explained “[w]e’ve assessed two policy violations against President Trump’s Page which will result in a 24-hour feature block, meaning he will lose the ability to post on the platform during that time.” On the morning of 7 January, CEO and Chairman of the Board Mark Zuckerberg extended the ban for the duration of Trump’s tenure as President:
We believe the risks of allowing President Trump to continue to use our service during this period are simply too great, so we are extending the block we have placed on his Facebook and Instagram accounts indefinitely and for at least the next two weeks.
Reddit also shut down its largest Donald Trump subreddit “r/donaldtrump” for promoting and inciting violence.
Thereafter, the app, Parler, that fancies itself as the conservative version of Twitter, was essentially shut down by Apple, Google, and Amazon for its role in the attack on the U.S. Capitol. Its estimated 8-10 million users in the U.S. skew right, a significant number of whom are white supremacists, and Many news accounts of 6 January claim the insurgents used Parler and Gab Over the weekend, Google first removed the app from its Play Store, and then Apple warned the app had 24 hours to address its terms of service violations. Thereafter Apple followed Google’s lead and banned the app. Of course, just because an app is banned from the two major app stores does not mean it cannot be used; rather, it just means new users cannot download it from the Apple and Google, but more crucially, the currently installed Parler apps cannot be updated. However, the Parler operation has been shut down by another tech giant for an indefinite amount of time.
On 9, January, Amazon Web Services (AWS) emailed Parler, letting them know they had violated the terms of service under which the former was hosting the latter’s website. Consequently, Amazon informed Parler “[r]ecently, we’ve seen a steady increase in this violent content on your website, all of which violates our terms.” Amazon added “[i]t’s clear that Parler does not have an effective process to comply with the AWS terms of service.” Parler may be able to find another server to host their operations, but this would take time. On 11 January, Parler sued Amazon, alleging AWS engaged in anti-competitive conduct in pulling its web-hosting services.
The reception in Congress has split along partisan lines. The chair of the House subcommittee with primary jurisdiction over Section 230 made clear Facebook and Twitter acted too late. Representative Jan Schakowsky (D-IL) claimed in her statement:
Today’s actions by Facebook and Twitter are too little, too late, in light of yesterday’s violence, as is almost always the case. Think–only after the Senate and White House flip, and Trump has two weeks left in office–does Facebook pretend to show the minimal amount of bravery.
Schakowsky chairs the Consumer Protection and Commerce Subcommittee of the House Energy and Commerce Committee.
The outgoing chair of the Senate Judiciary Committee Senator Lindsey Graham (R-SC) tweeted:
I’m more determined than ever to strip Section 230 protections from Big Tech (Twitter) that let them be immune from lawsuits. Big Tech are the only companies in America that virtually have absolute immunity from being sued for their actions, and it’s only because Congress gave them that protection.
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