The First Amendment Is Under Attack... Or Is It?


Last month, after the White House was forced by a federal judge to reinstate the “hard pass” Press Credentials to CNN’s Jim Acosta, it seems obvious that the First Amendment is under attack in the United States. Today, the attack is not from President Trump or anyone in the news media, the attack is actually from companies like Twitter and Facebook. Large social media sites are attacking free speech in America (and to an extent, freedom of the press). But where does Constitutional protections end and private business rights begin?

Twitter CEO Jack Dorsey was in Washington D.C. this summer, testifying before a House committee about the accusations of censoring and shadow-banning Conservative lawmakers. During that hearing, Dorsey testified that Twitter does not target people for their political or religious beliefs, but did state that algorithms were updated to fix issues relating to the search bar and certain political figures not populating when their names were typed in. And yes, those certain political figures were conservative lawmakers.

Shadow-banning is a technique used in many online forums that effectively hides most content from other users, but makes the original user unaware of their “hidden status”. Twitter has responded to the accusations of shadow-banning in a blog post that you can read here. Twitter’s statement is a PR smokescreen by using different words to describe the shadow-banning that they do. “We do not shadow ban. You are always able to see the tweets from accounts you follow (although you may have to do more work to find them, like go directly to their profile).” What they are saying is that the definition they use for shadow-banning isn’t the same definition that everyone else uses. They don’t block everyone from seeing particular users content, but they don’t freely show it. Users can be “Twitter shadow-banned” and have little to no views on their tweets because Twitter chooses to not show any of their tweets on the timelines of those that follow them.

Twitter has also come under fire over the last couple years for their crackdown on “terms of service” violations. Remember those Terms of Service (ToS) links that you find on nearly every form you fill out online… and you have to check the box that "you read and agree to the terms"? Yeah, no one reads those, but Twitter has been using them to ban users from their service. Twitter doesn’t publish any statistics or reports when they ban users, so one must rely on news and self-reports from users who have been suspended or banned due to a violation of their terms of service.

There is also no central database that keeps track of the news reports for those who are suspended or banned by Twitter, but the fine folks at Wikipedia have compiled a list of news reports that address those who have been banned or suspended by Twitter (I realize this is a highly unscientific source, but there are no other places with this information all in one place, so take it for what it is).

A couple observations on Twitter ToS punishments. First of all, Twitter launched in 2006, but the list on Wikipedia doesn’t document any suspensions on accounts until 2011. This could be due to a lack of attention being paid to suspensions, or a lack of actual suspensions. Either way, the documented suspensions were extremely low from 2011 to 2015 with a total of 7 documented on the site. In 2016, however, the suspensions began to climb with more than a dozen noted. 2017 to present has seen countless account suspensions that have ranged from bot accounts that have no actual user behind the account to even the President of the United States – allegedly a rogue employee that suspended @realDonaldTrump on his last day of work at the company.

But Twitter is accused of a bias against Conservatives, so let’s look at the data (some of the accounts suspended were accounts from overseas, so I eliminated those from my count). 2,756 (or more) accounts were suspended as they were connected to Russian bots that were attempting to influence the 2016 election. Approximately four of the documented suspensions were people with ties to extremist groups like Hamas or Antifa. Six of the accounts had political views that came from the left side of the aisle, and fifty-nine of the documented suspensions were from those who hailed from the right side of the political spectrum. Now, this sure does seem to be skewed quite harshly to focus on people on the right side of the aisle. 6 liberal accounts to 59 conservative accounts. What say you, Twitter?

Some of these conservative accounts belonged to people who did not share the same conservative values of mainstream America; rather they were racist, misogynistic and the like. There are, however, accounts on the opposite side of the political spectrum that are allowed to continue to promote their own brand of hate and violence. One example would be Louis Farrakhan, the leader of the Nation of Islam, which has been labeled as a hate group by the Southern Poverty Law Center. Farrakhan has repeated MANY hateful and charged rhetoric via his Twitter account, including a tweet this year where he said: “I'm not an anti-Semite. I'm anti-Termite.”

It is of little debate that Twitter has a bias against conservative voices, no matter what CEO Jack Dorsey claims. What must be questioned now is whether this constitutes a violation of the protections of the First Amendment of the Constitution. To answer that, we must go back to the original text…

“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

The First Amendment is only addressing the government, Congress specifically, in its freedom of speech/press. The government cannot pass laws that would prohibit anyone’s free speech. Twitter, however, is a private corporation and is not subject to the First Amendment regulation. So, Twitter has every right to censor, restrict or outright ban any type of speech that their bleeding hearts desire and it does not violate the First Amendment protections.

So, when President Trump tweeted:
“Twitter ‘SHADOW BANNING’ prominent Republicans. Not good. We will look into this discriminatory and illegal practice at once! Many complaints.”
He was wrong… it was not and is not illegal; immoral maybe, but not illegal.

However, while any private company can legally limit any speech they chose, this practice should be concerning to anyone who loves the freedoms America provides, as it sets a dangerous precedent for the takeover and sequestration of speech that one wealthy individual may deem wrong. I would think that those on the left side of the aisle would be up in arms if someone like Trump bought out a company like Instagram and suddenly started censoring any photos or comments that supported abortion or gay marriage.

The New York Times just published a bombshell report, detailing Facebook's policies for restricting speech on their platform worldwide. Facebook actually has a spreadsheet of user pages that they have banned and they also will censor any posts that support anyone who is on that list. For example, the far-right group Golden Dawn is included in the list of banned groups… this might not mean much to those in U.S. politics, but the Golden Dawn group is a political group that has members who have been elected to the Greek and European Union parliaments.

From the Times article:

“Facebook’s role has become so hegemonic, so monopolistic, that it has become a force unto itself,” said Jasmin Mujanovic, an expert on the Balkans. “No one entity, especially not a for-profit venture like Facebook, should have that kind of power to influence public debate and policy.”

In a recent interview with the New York Times, Harvard University expert on online extremism Jonas Kaise said, “It puts social networks in the position to make judgment calls that are traditionally the job of the courts.”

Everyone should be fighting FOR the Constitutional rights of others, even those they disagree with, because one day, the tides could turn and your viewpoint could be under fire. We don’t need new laws to address this, and I would vehemently fight against such laws, but public opinion is a strong factor in company policies. Let Twitter and Facebook and other organizations know you are unhappy with some of their shady business practices. If enough people cry out and even leave the platform, their revenue stream will slowly decrease and we all know that money talks.