SAN FRANCISCO (CN) — Pondering the free speech implications of Twitter’s lifetime ban on President Donald Trump after a violent attack on the U.S. Capitol, a constitutional law scholar warned Thursday that a private company’s silencing of a sitting president sets a dangerous precedent.
“I worry that if we encourage Twitter to censor Donald Trump today, tomorrow it might be my speech or your speech that gets censored,” University of California, Berkeley Law School dean Erwin Chemerinsky said.
Chemerinsky was speaking at a virtual panel discussion on “Trump, Twitter and Free Speech” hosted by the First Amendment Coalition and its executive director David Snyder.
The law school dean said he would prefer to never see another false, misleading or incendiary tweet from Trump, but he doesn’t think social media firms should determine what messages are okay for the public to see.
“That’s a big concern for me,” Chemerinsky said. “I worry that Twitter, Facebook, Google and YouTube have so much control over what kind of speech we can receive.”
While he disagrees with Twitter’s decision to permanently ban Trump, that does not mean social media platforms should embrace an “anything goes” policy, he said.
“I think Twitter is completely justified in taking down any tweets by Trump or anybody else that are regarded as incitement, threat, invasion of privacy or defamatory,” he said.
Social media companies are not bound by the First Amendment, which only prohibits government entities from curtailing speech. Some argue that social media firms are like utilities because people depend on them for communication and information. Because they receive government benefits in the form of liability protections, some also argue that the First Amendment should apply to them.
Others say social media firms are more like newspapers, especially since they exercise control over the content posted on their platforms. If they were treated as newspapers, the companies could then be held liable for defamation when users spread lies through their platforms.
Chemerinsky thinks the social media firms can’t be boxed into either category.
“They don’t exercise the control that newspapers do, but it’s not a private conversation like the telephone,” Chemerinsky said, adding that no one would expect to hold a telephone company liable for what someone says on the phone.
Section 230 of the Communications Decency Act makes the social media firms immune from liability for content posted by their users. The intent of the 1996 law was to make internet platforms more like bulletin boards where people can freely share their thoughts and opinions.
But in recent years, concerns about hate speech, misinformation, encouraging violence and politically biased moderation have led many to reconsider those protections.
“I think there needs to be a thorough rethinking of Section 230,” Chemerinsky said, adding that he would favor a law that forbids platforms from engaging in viewpoint discrimination.
Extending free speech obligations of government entities to private ones is not without precedent. In 1992, California passed the Leonard Law, which ensures private schools cannot punish students for engaging in the type of First Amendment activity that would be protected at public schools.
“I advocated for the Leonard Law because I think the values of free speech should be protected by private school administrations as it would be by public school administrations,” Chemerinsky said.
On the question of whether Trump should be impeached or held criminally liable for his pre-riot speech, the law school dean urged people to always be leery of incitement-to-violence prosecutions.
He noted that the U.S. Supreme Court in 1919 upheld the conviction and six-month jail sentence of Charles Schenck, who distributed flyers arguing that the U.S. military draft during World War I was unconstitutional.
In 1951, the high court also upheld the convictions of people who organized gatherings to study the works of Karl Marx and Joseph Stalin. For promoting communist ideas, they were accused of plotting to overthrow the government.
“American history shows incitement prosecutions are often used to suppress political dissent,” Chemerinsky said.
However, when it comes to the words of Donald Trump and his steadfast ally Rudy Giuliani in their Jan. 6 speeches, Chemerinsky believes it meets the legal standard for incitement to violence.
During their speeches, Trump used the word “fight” 20 times and Giuliani shouted, “Let’s have trial by combat.”
To convict someone for incitement to violence under the Brandenburg test, established by the 1969 Supreme Court decision in Brandenburg v. Ohio, the speech must be “directed to inciting or producing imminent lawless action” and “likely to incite or produce such action.”
That a mob stormed the capitol so soon after Trump’s speech supports the idea that a “lawless action” was likely and imminent, Chemerinsky said.
“I think the speech by Mr. Trump and Rudy Giuliani met the standard for imminent illegal activity,” he said.
Despite his stance that the president should be convicted for inciting an insurrection, the law school dean remains deeply unsettled by Twitter’s decision to permanently ban Trump.
Comparing it to a government action covered by the First Amendment, Twitter’s action would be akin to a prior restraint on speech, something courts rarely allow. A more narrowly tailored option, such as blocking or labeling unacceptable tweets, would be preferred, he said.
The law professor favors an alternative that doesn’t cut the president off from his 88.3 million followers.
“I always say to students that the only way their speech will be protected tomorrow is to protect the speech they don’t like today,” Chemerinsky said.Follow @NicholasIovino
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