Donald Trump has been tweeting things! Twitter CEO Jack Dorsey has slapped him with a fact check! Many people are saying the president should be banned from the platform!
Herewith are some answers to your frequently asked questions about the possibility of Twitter banning Donald Trump.
Can Twitter ban Donald Trump as a user on its platform?
Yes. Twitter is a private company and private companies are legally allowed to make reasonable decisions about who they will and will not serve. These decisions must not fall afoul of civil rights laws concerning discrimination of legally protected classes—for example, Twitter could not, say, kick all black people off of its platform.
That’s why Twitter—and most other platforms—have “terms of service” agreements that users assent to when they register. The terms of service are basically rules of the road preemptively explaining cases in which the platform will kick you out. Kind of like the “No shirts, no shoes, no service” signs at 7-Eleven.
As a private-sector company, Twitter has much more leeway than a public institution would in setting the terms of what behaviors it disfavors and are decisive in who may or may not use it. Just to pick an example at random: As a legal matter, a public institution such as a library would have a much harder time telling drag queens that they could not hold a story hour than Twitter would have telling Donald Trump that it was canceling his account.
But isn’t Twitter kind of like a public utility?
No. Twitter is one of a sizable number of social networks: LinkedIn, Nextdoor, Instagram, TikTok, Gab, Snapchat, Reddit (sort of). It’s not even close to being the biggest social network. (That’s Facebook, obviously.)
To be akin to a public utility, an internet platform has to have no near-peers, meaning that anyone excluded from it could not easily find an equivalent service.
Google’s search function is close to being a public utility, for instance. You could argue that if Google declined to return results for “Donald Trump” or put, say, the Trump campaign websites on a do-not-crawl list, there would be no real alternative accommodation for Trump, since Google is used for close to 90 percent of all searches in the United States and there are only two real alternatives: Bing, which accounts for 6 percent and Yahoo which accounts for 3 percent.
Twitter is much more like a bakery. If you want a cake and the Twitter bakery doesn’t want to make it for you because you want to put some sort of objectionable message on it, you can go to the Gab bakery or the Instagram bakery across the street and they’ll bake your cake.
Okay, so Twitter could kick Trump off. Should they?
Now we’re talking. There is an argument to be made that the sitting president of the United States should always be allowed access to internet platforms because he is the most consequential public figure in the world and there is inherent value in all of his statements.
I do not buy this argument.
It’s hard to come up with a use case that might justify a Twitter ban for any president not named “Donald J. Trump.” But it’s not all that hard to come up with one for him.
For example: If the president had tweeted out his speculative advice on injecting bleach into the human body to cure COVID-19, a reasonable interpretation might have been that this was the public-health equivalent of shouting “Fire!” in a crowded theater.
Trump has recently taken to accusing a private citizen of murder. A reasonable interpretation might be that this is defamatory. Still, in the case of defamation, there are legal remedies available to the aggrieved party.
So by the same token, a reasonable person could also conclude that while Trump’s tweets are creating private legal exposure for him, on balance banning him would cause more harm than good.
Wait—so now you say that Twitter shouldn’t ban Trump?
The vast majority of the time, it is true that the remedy to bad speech is more speech, because in the marketplace of ideas, the good will tend to crowd out the bad.
But that isn’t always true.
There are moments when bad speech becomes especially dangerous and, because of temporal and logistical constraints, difficult to counter. There are times when the immediate damage caused by bad speech is so great that we would rather not wait around for the good speech.
Imagine what would happen if, on November 4, Joe Biden has won the election and President Trump tweets something like this:
Election was RIGGED. I beat Sleepy Joe and the Fake News media knows it. Looking at some very strong responses. Stay tuned!
I think you will agree that this is not an entirely fanciful possibility.
In the event that this—or something like it—were to happen, President Trump would be triggering a full-blown constitutional crisis on a scale not seen since 1876, one that endangers the peaceful transition of power. There would be no legal reason for such a tweet—if the president were to suspect election irregularities, he would have a variety of legal remedies available to him. Certainly the Republican National Committee would have conservative-lawyer tiger teams pushing every available legal button.
No, such a tweet would have one purpose and only one purpose: to destabilize the American government and incite a portion of the citizenry at a moment of flux.
Now maybe this imaginary scenario never comes to fruition.
Maybe Trump beats Joe Biden like a drum and wins re-election handily.
Or maybe Trump loses and is graceful and patriotic as he helps prepare the way for his successor.
But I wouldn’t, you know, want to bet the Republic on that.
And if I worked for Twitter, I would be gaming out this scenario right now and trying to figure out what to do should it materialize.
Because as nice as the idea of “more speech beats bad speech” is, Twitter is not a suicide pact.
Why is it Twitter’s job to decide whether or not the president should be banned?
In a perfect world, it wouldn’t be.
Ideally, a president would have the decency and temperament, experience and prudence to keep from saying the kinds of things Trump routinely says on Twitter.
And if you wind back the clock to, say, 1970, or 1990, or 2015, there were all sorts of guardrails in place that would have stopped a Republican president from saying the things Donald Trump says.
His advisers would have told him to cut it out.
If they didn’t, then conservative intellectuals would have taken him to the woodshed.
If they didn’t, then congressional Republicans would have told him to lock it down.
And eventually, by hook or by crook, the president would have gotten the message.
Those guardrails are all gone. Trump’s advisers are his family. Congressional Republicans are more beholden to Trump than any party has ever been to a president. And Conservatism Inc.?
So it falls to Twitter to police its own platform because the old norms of self-policing are gone.
Rick Santorum used to have a good riff about this idea, though in a slightly different context: Santorum was talking about how a democracy can only work if the people are virtuous, because the government can’t possibly legislate all aspects of good behavior. You need people not to do some of the bad stuff simply because they know it’s wrong.
Once the mores die, democracy becomes unworkable and people are no longer able to govern themselves, because our society is so complex and multileveled that you cannot legislate every important idea.
Now that the world is what it is, Twitter has been placed in an unenviable position:
The company can either be the arbiter of some basic shared liberal values. Or it can be a tool used by a political figure who is authoritarian-curious.
Twitter might not have to make that choice today. Reasonable people can disagree on this score.
If Twitter is very lucky, they might not have to make it ever.
Hope for the best; plan for the worst.