This past weekend, when Twitter permanently suspended the personal account of Representative Marjorie Taylor Greene, a Republican of Georgia, her offenses were clear: She had repeatedly posted misinformation about Covid and vaccines, violating Twitter’s rules.
For many, that was the end of the story. It is well within Twitter’s rights as a private company to shut off her account. Greene’s freedom of speech has not been violated: She, as plenty of people have pointed out, can still use her official government Twitter account, post messages on Facebook, Telegram or anywhere else or even do something as novel as give a speech or put out a news release. In fact, the only relevant First Amendment concern in this case centers on Twitter’s freedom to do what it pleases in its own space.
But there are a handful of unexamined questions, some of which were first brought up when the large social media companies closed Donald Trump’s accounts but have only become more pressing since.
How much control does tech really have over our speech?
Seventy-six percent of Americans think Facebook makes society worse, but nearly 70 percent of Americans use it. We seem to have entered into an uneasy compromise where we understand that these companies have an extraordinary amount of influence, but we also can’t quite figure out a way to communicate without them. In this vague space, the law matters much less than the malleable and selectively enforced rules of the platform itself.
For the most part, the control these companies — Slack, Zoom, Google, Apple, the social media giants — exert on our online communications feels relatively passive. Sure, there are ads on most of these platforms and a rabid harvesting of our personal data, but Americans have largely blocked out that reality. A life without apps, it turns out, is lonely and inconvenient.
The near-universal embedding of this technology in our lives means that even though the legal definitions of free speech do not guarantee the right to a social media account (this is a good thing), there’s still a profound silencing effect that comes with being banned. So, while we discredit phony First Amendment-violation claims, we also need to keep a wary eye on the potential for tech companies to act as de facto censors. It’s true that Greene has other means of getting her message out, but that isn’t the case for thousands of activists, thinkers and regular people around the world who would lose their entire audiences if the tech giants shut them down.
So, what are the speech rules of these compromised online spaces?
In the past, social media sites have justified decisions like banning Greene by pointing to their Terms of Service (ToS) and other policies that you sign without ever reading when you create your account. These rules are not set in stone; they change all the time. (Twitter’s “five strike” system that Greene violated, for example, was instituted last March.)
ToS and other usage policies have mostly been a way for platforms to avoid responsibility for hate speech or misinformation on their platforms. So long as users aren’t violating these rules, they’re free to do as they please. Reddit, for example, endured years of criticism for the toxicity of its content before finally updating its content policy to exclude “hate based on identity or vulnerability” in the summer of 2020.
The mistake we make is to think of these corporations as people who just need to be persuaded to do good. This form of anthropomorphism asks these companies to effectively grow a conscience and act as arbiters of speech. Greene or no Greene, there isn’t much evidence that they’re changing their ways: Last fall Frances Haugen, a former Facebook employee, went public with information that the company routinely prioritized growth over the safety and well-being of its customers and the country at large.
An example of Big Tech’s ambition is Facebook’s Free Basics, a program that is supposed to take the internet to the developing world. By providing the only reliable online connection, Free Basics, which one media watch group called “digital colonialism,” would control the flow of information and a majority of online commerce. This goes well beyond owning the newspapers; it’s like owning the newspapers, the television stations, the wires read in newsrooms and the airwaves.
A focus on content moderation won’t save us from unbridled tech growth, a more concerning outcome. It’s why we should start thinking about ways to address the likelihood that the entire world will start to resemble a Free Basics country, perhaps by taking antitrust action or orchestrating mass abandonment of the platforms.
“Facebook has 2.5 billion users,” Ben Wizner, director of the A.C.L.U.’s Speech and Privacy Project, told The Guardianlast January. “The fact that it has become the dominant platform for certain kinds of debate means we all have a stake. We need to use the law to prevent companies from consolidating that amount of power over our public discourse. That does not mean regulation of content. It would mean enforcing our antitrust laws in the U.S. We should never have allowed a handful of companies to achieve the market dominance they have over such important public spaces.”
Wizner is right: The scope of this problem is much bigger than Marjorie Taylor Greene’s personal account.
OK, but can’t we just shut down dangerous Covid misinformation and loosen the control tech has over our speech at the same time?
One of the more convincing arguments in favor of banning Greene goes something like this: We are in a pandemic that has killed over 800,00 Americans. Anti-vaccination messaging has exacerbated the damage, mucked up the exit plan and jammed emergency rooms and intensive care units with patients who very well could have been spared if they had just listened to science. All tech companies, then, have a responsibility to prevent misinformation from reaching susceptible people, whether in the form of the warnings you see under any Instagram post that mentions Covid or in the elimination of accounts that continually spread anti-vax nonsense.
All of this is correct, but a state of alarm can justify any curtailing of speech not only by social media companies but also by the government. The world is not going to get much less scary over the next decade, and it’s important to make sure that both our elected officials and the tech giants do not take every opportunity to cut away at our civil liberties.
I would prefer a world where anti-vax posts did not exist, but I also think it’s naïve and pointless to pretend that the suspension of a few high-profile accounts will lead to a change in anything other than the reputations of the social media giants. These bans serve more as P.R., both for places like Twitter, which have come under great scrutiny, and the banned themselves, who immediately get to paint themselves as martyrs.
The shutting down of accounts is only one of the many ways a tech company can suppress content. This past May, The Washington Post and the Columbia Journalism Review both reported that Facebook, Instagram and Twitter had blocked or restricted millions of posts about the conflict over the Sheikh Jarrah neighborhood in Israeli-occupied East Jerusalem. The affected accounts were overwhelmingly from pro-Palestinian sources. The companies all attributed the restrictions to technical or algorithm errors, an explanation that was rejected by many activists who had encountered similar disruptions before.
To be clear, I am not saying that this is what happened in that instance. My point is more that we have little way of verifying the truth.
Censorship thrives under vague conditions, whether through a loosely worded and selectively enforced ToS or the unknowable machinery of algorithms and glitches. When these are combined, they present a true threat to free expression. Nothing a tech company will do to suppress content on its platform will violate the First Amendment, but that’s also the problem we’re facing: There’s very little recourse for the silenced.
Cards on the Table
I am an old-fashioned civil libertarian who believes in the sanctity of free speech. This comes from my years as a reporter covering protests around the world. The real threats to free speech in this country have been enacted over the past half decade with little mention in the mainstream press as state and local governments have passed strict anti-protest laws. These should be seen as direct attempts to criminalize the sacred right of ordinary citizens to leave their homes, gather in the streets and demand change. Many of these laws have been passed by politicians after Black Lives Matter protests involved some measure of looting and rioting.
I do not think it’s a coincidence that these draconian anti-protest laws passed with such little resistance in an era during which the concept of freedom of speech has been stripped down to its most barren legal form. But the paucity of this option doesn’t mean that it’s impossible to envision a more robust vision of speech, even in a world where tech controls so much of it.
What works better is a broad tolerance for all forms of speech, including misinformation, since that comes with the right to correct and criticize people who spew harmful lies. Cheering on the dismissal of toxic politicians, celebrities and thinkers, and arguing that private companies like Twitter can do whatever they want so long as they can produce the right ToS, give social media companies license to do just that: whatever they want.
Have feedback? Send me note to [email protected].
Jay Caspian Kang (@jaycaspiankang), a writer for Opinion and The New York Times Magazine, is the author of “The Loneliest Americans.”
