Trump, Twitter and Freedom of Speech

Poor old Trump! So many of his former collaborators and enablers are deserting him, now that he’s only days away from losing power. As someone I follow on Twitter so aptly put it, the shits are deserting the drowning rat. What hurts him most, is that he can’t sound off about it on his favourite communication medium, Twitter.

Trump: his megaphone has gone

Some have reacted to his ban from Twitter as an assault on free speech. People talk a lot about freedom of speech (well, I suppose talking is what it’s about). Often, they seem to suggest that freedom of speech is, or should be, unlimited.

To be fair, they have good authority for that belief. Trump’s American. Here’s what the first amendment to the US Constitution says on the subject:

Congress shall make no law … abridging the freedom of speech, or of the press…

That seems absolutely clear and unqualified. There can be no legal measure that abridges freedom of speech.

And yet, and yet… The United States inherited English Common Law against defamation. So libel and slander are illegal in the US just as they are in Britain. It’s true that American law makes it a lot less easy to win a libel case than British law does (which is why many plaintiffs prefer to sue in Britain rather than the US). In particular, truth is an absolute defence in the US – a true statement cannot be defamatory. With “public figures”, the plaintiff also has to prove “actual malice” by the defendant to win a case. 

Even so, harder though a libel case is to win across the Atlantic, libel laws exist and therefore in a real sense they ‘abridge’ the freedom of speech.

What’s more, if two or more people agree to commit a crime, or to adopt illegal means to achieve even a legal end, they are guilty of conspiracy. They may not have committed the actual crime planned. The mere fact of having planned to do it is in itself a crime.

Like it or not, that constitutes another abridgement to freedom of speech.

Finally, the US Supreme Court has determined that incitement to actions in the far future is not a crime, but incitement to illegal acts to take place imminently is. In particular, incitement to riot is criminal. This means that incitement is only free speech protected by the First Amendment if the action being incited isn’t imminent. Otherwise, there is no such protection.

Again, this is a clear abridgement of freedom of speech. That’s particularly explicit in this case, because the Supreme Court’s decision constitutes a stated limitation to the protection offered by the First Amendment.

There’s nothing in the least bit surprising or unusual about these limitations. No democracy allows defamation, conspiracy or incitement. I can’t see any reason why they should. I rather suspect that even the people who were upset about Trump’s freedom of speech would oppose lifting all bans on defamation, conspiracy, incitement or other abuses of free speech.

It seems that in the United States, as in any democracy, freedom of speech is by no means unlimited. On the contrary, it’s heavily qualified by laws that limit its abuse. And one of the things it most strictly limits is incitement.

There is no right to incite.

Before the mob attacked the Capitol in Washington DC, Trump told it:

Republicans are constantly fighting like a boxer with his hands tied behind his back. It’s like a boxer. And we want to be so nice. We want to be so respectful of everybody, including bad people. And we’re going to have to fight much harder. …

… You have to show strength, and you have to be strong.

It’s for judges to determine whether these words meet the legal test for the crime of incitement. They may well still get that chance, if Trump is prosecuted once he loses his presidential immunity. But to me, in a purely lay sense, they sound exactly like a textbook case of incitement.

I repeat. There’s no right to incite. In other words, Trump isn’t merely exercising freedom of speech, he’s abusing it.

Twitter, in the absence of a court decision, felt it had to take the decision to prevent such abuse continuing. It decided it couldn’t and that meant banning Trump.

In one sense, Twitter had every right to take that decision. It’s a private-sector company. Like any other private organisation of its kind, it has the right to set its rules and exclude anyone who breaks them. Specifically, it isn’t under any obligation to protect freedom of speech generally. Think of a newspaper like the Daily Mail or the Guardian in Britain. They’re under no obligation to give everyone who wants it space in their pages to peddle their views. Nor is Twitter.

That, however, leads to a different issue. Is Twitter – or Facebook or any other social media platform – like a newspaper or not? Because a newspaper can be sued, for instance, for libel. But who gets sued if a tweet is defamatory? Is it Twitter or is it the author of the tweet?

That’s a much bigger question, and one that governments need to start to  address. How do we control abuse of free speech on those platforms? Can they be treated as publishing companies with responsibility for their content? Or are they merely platforms, no more responsible for the content they distribute than the printing press is for the content of the newspaper produce on them? 

It’s likely we need to get to a position which is somewhere between the two. That’s immensely difficult to define, but it needs to be if we are to protect freedom of speech while controlling its abuse. 

As far as Trump is concerned, on the other hand, the abuse is clear. And that means that the Twitter ban is entirely appropriate.