Facebook Can Ban Whomever It Wants. Just Ask Trump's Lawyers

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Over the course of a weekend in which North Korea tested a new short-range missile, Iran allegedly prepared to attack US forces, and the Pentagon confirmed China may be holding as many as three million Muslims in concentration camps, the one region of the world that received the most direct and damning criticism from the President of the United States was, er, Silicon Valley.

In a series of tweets beginning Friday evening and extending throughout the day on Saturday, President Trump condemned Facebook for banning a slew of far-right figures, including the conspiracy theorist Alex Jones and the anti-Islam commentator Paul Joseph Watson, as well as Twitter for locking the account of actor James Woods. President Trump said he was “monitoring” the situation and even helped raise Watson’s profile by retweeting a link to his YouTube video about being censored—a video that has now been viewed more than half a million times.

Issie Lapowsky covers the intersection of tech, politics, and national affairs for WIRED.

“This is the United States of America — and we have what’s known as FREEDOM OF SPEECH!” President Trump wrote about the bans. He went on to retweet a number of accounts making much the same argument.

Twitter’s armchair legal experts replied to the President’s rant by pointing out that the First Amendment only prohibits the government from suppressing speech, not private companies like Facebook and Twitter. Of course, if anyone knows that, it should be President Trump. It is, after all, the very argument that his own lawyers at the Department of Justice have been making on his behalf in court.

In July of 2017, the Knight First Amendment Institute and several Twitter users who had been blocked by President Trump filed a lawsuit against the president and several members of his staff. They argued that @realdonaldtrump is a "designated public forum" and that by blocking them, the President was prohibiting them from replying to him, thereby violating their First Amendment rights. Last year, a district court sided with the plaintiffs, finding that the President does use his Twitter account to carry out government business, like announcing the departure of Secretary of State Rex Tillerson or introducing a ban on transgender troops in the military. Consequently, the court ordered President Trump to unblock his critics.

But the Department of Justice has since appealed that decision, laying out the very defense that would seem to justify Facebook and Twitter's actions. "The constitutional right of a private individual to express his or her views in a public forum comes into play only when the property in question is owned or controlled by the government and the individual’s exclusion from that property is the product of state action," the Department wrote in its appeal brief.

Just over a month ago, DOJ lawyers doubled down on this logic in their oral arguments, stating that the President has blocked people in a private capacity—not in his official capacity as President—and is, therefore, well within his rights to do so. "If there's no state action, there can't be a First Amendment violation," the DOJ's lawyer, Jennifer Utrecht said. "The Constitution does not prohibit private parties from engaging in conduct that inhibits expressive conduct."

The complicating factor for the President in this case is that, well, he is the President. Not only that, but he uses his account to conduct government business. Because the government is the only body that can violate the First Amendment, that puts Trump's Twitter habits on tricky legal footing, says Danielle Citron, professor of law at the University of Maryland and author of the book Hate Crimes in Cyberspace. "He’s the President. Whenever the government creates zones of public discourse, they have very special obligations under the First Amendment," Citron says.

The Department of Justice has tried to jump through rhetorical hoops to argue that despite all that, the President is blocking people as a private citizen, and therefore, can't infringe on their First Amendment rights. "Donald Trump has had the ability to block anyone from his @realdonaldtrump account since long before his presidency," Utrecht argued. "This is not an authority he is wielding by virtue of his office."

Compare that to the position that Facebook and Twitter find themselves in: They wield tremendous power, to be sure, but that doesn't make them the government. Not only that, but the law that governs tech platforms also explicitly instructs them to make a "good faith" effort to restrict content they consider "obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable."

If the Trump administration believes that the President's own Twitter account can't infringe on people's free speech rights, then it seems dubious at best to claim that a privately-owned company with no ties to the government can, Citron says. "The notion that the President is free to block whoever he wants on Twitter because he's a private actor, and then he turns around and criticizes Twitter for kicking people off their platform is incoherent," she says.

Of course, President Trump wasn't making a legal case in his weekend tweets. He was merely ramping up the public pressure on an industry that has proven time and again that such pressure works. It was, after all, the fear of being charged with censoring conservatives that led Facebook to fire all the human beings who decided which news stories made it into its Trending Topics section. It's the fear of accidentally suspending conservative politicians that has kept Twitter from automatically banning white supremacists from the platform, the same way they ban ISIS operatives. It's that fear—combined with some idealistic and misguided faith in human nature—that compelled social media companies to take such a hands-off approach to content moderation to begin with, allowing hate and conspiracy theories to fester and metastasize there for more than a decade.

Tech companies have made repeated, sometimes catastrophic decisions, for fear of stoking a conservative backlash. Time will tell if this case is any different.

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