Editorial: Now is the time to go after Twitter, but not for First Amendment reasons

photo by: Journal-World Photo Illustration

Lawrence Journal-World Editorial

Think whatever you want about the fairness of Twitter banning Donald Trump from its platform, but reasonable people should quash this notion that Twitter’s decision somehow is a violation of the First Amendment.

Instead, reasonable people — which hopefully still includes a few lawmakers — ought to pounce and use Twitter’s decision to make vital changes to the social media industry.

As a reminder, the First Amendment starts with “Congress shall make no law . . .” The simplest way to approach this is that Congress made no law in this matter. If Congress had passed a law saying Trump could not post on Twitter (or Facebook or YouTube, which also have taken action against the president) that would have been a 100% violation of the First Amendment. Trump and the ACLU likely would have been bedfellows at that point.

That didn’t happen, though. Instead, a private business decided it no longer wanted a particular person using its website because that person was violating its terms of service. It happens every day — and not just on Twitter. At its heart, it is a business-rights issue, which once upon a time was a tenet of the Republican party.

Now, the question is what type of business is Twitter? It has long seemed that Twitter and other social media companies were going to be categorized as one of two types of business: a utility or a publisher. By a utility, think of a phone company, for example. The phone company doesn’t monitor what you say on the phone, doesn’t make you edit your statements and doesn’t disconnect your service because of what you say. After all, the phone company can’t cut off phone service to the Ku Klux Klan office, even as repugnant as that office is. Utilities are deemed essential services and, as such, are highly regulated by government. Government doesn’t regulate social media as such, and that is probably why you don’t hear social media companies clamoring to be categorized as a utility.

By publisher, think of a newspaper. Newspapers pick and choose which pieces of content to publish. We don’t publish every letter to the editor we receive, for instance. No court has ever found we are violating a letter writer’s First Amendment rights by refusing to publish a letter.

By banning Trump, Twitter seems to be saying it is a publisher. For many of us, that has been clear all along. Twitter and Facebook are publishers, albeit not very responsible ones. They are much better at being cheap ones. Unlike newspapers, they really don’t pay anyone to produce any content. Every user of the platforms is producing free content for Twitter and Facebook, which they then make money off of by selling advertising around.

It is a powerful business model and one that any money-lover should envy. Newspapers also should be envious of the special treatment the sites receive. Newspapers, you see, can be held legally responsible for what we publish. If the letter writer libels somebody, the newspaper could get sued as well. On the internet, it doesn’t work that way. Comments left by users don’t put the website owner in legal jeopardy. If website owners could be held liable, you would see a lot less dangerously stupid stuff online.

It should be clear now that Congress needs to change that law, commonly known as Section 230 of the Communications Decency Act. Trump actually has been lobbying for this. If we are going to say Trump helped incite the insurrection at the Capitol, we also have to say the lack of moderation by Twitter and Facebook did too.

Simply eliminating Section 230 would have massive consequences. It wouldn’t just affect social media sites. Sites like Wikipedia, Yelp, travel sites and thousands of others all would see their business models change significantly.

So, Congress should take some care, but, most of all, it should take some action. Is there a risk that social media becomes unworkable? These are big tech companies that likely will create technology that allows them to monitor content efficiently. So, they probably can survive. But, yes, there is a chance a change in the law causes social media to become unworkable.

Consider this though: Better to change the law and watch social media stop working rather than to allow the status quo and watch insurrections start working.


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