As tech giants recoil from Trump and Parler, is free speech at risk?

The drama of the Jan. 6 assault on the Capitol Building in Washington played out largely in real life, to tragic effect. But it has culminated in one of the most significant changes in the landscape of political social media in recent memory. The leader of the United States has been banned from his favored means of communication, and his conservative allies are throwing about accusations of censorship and unconstitutionality.

So what happened?

Really, there are three related but distinct sets of events that occurred. The first is the de-platforming of President Donald Trump from Twitter, Facebook, and other sites. The second is social media’s mass banning of QAnon and Capitol-assault-related accounts and media. The third is the at least temporary collapse of Parler, a right-wing Twitter clone that promised to be a haven for free speech. They should be treated separately.

Let’s start with Mr. Trump and his social media accounts, particularly Twitter, on which he was followed by 88 million people. In the aftermath of the Capitol invasion, a federal crime that resulted in five deaths, Mr. Trump and his team continued to post material that could be interpreted to endorse the riots. Facebook, Twitter, and other major social media companies viewed this as a violation of their terms of use – the rules under which users agree to use the companies’ services – and deactivated Mr. Trump’s accounts.

Isn’t that an unconstitutional violation of the president’s First Amendment rights?

No. The First Amendment is specifically about the limits of what the government can do to regulate speech. Twitter is a private company, and is entitled to restrict its services to customers however it wants (subject to certain federal laws).

But Twitter is a public forum!

Not really. It is tempting to think of Twitter, and the internet generally, as the modern version of the town square. Many have made that analogy. But social media companies are corporations. So rather than a public town square, Twitter is a privately owned stadium where the Twitter corporation has built the facilities, hired the security, and handed out megaphones to everyone walking in the doors. They don’t charge admission, but it’s their property, and so they can let in – and kick out – whomever they want.

But aren’t they gagging the president by cutting him off from one of the world’s biggest social media platforms?

No. The president has unrivaled access to the media. Every broadcaster on the planet would leap at the chance to interview him. He has regularly called into programs on Fox News to chat live. And he has a White House press office with a press corps dedicated to reporting whatever he might say.

That’s not the same as Twitter. The press can filter him; on social media, Trump can say exactly what he wants.

That’s true. And the White House has a public website that could publish Mr. Trump’s words unfiltered. Mr. Trump has options – more than almost anyone else on the planet – to get his message out.

But what about all those other accounts being banned? They don’t have the same sort of options.

Let’s back up a moment to discuss what happened there. In addition to de-platforming Mr. Trump, multiple social media companies – Twitter being at the forefront – launched a campaign this weekend to ban users advocating misinformation and violence that led to the Jan. 6 riot, as well as users planning for a follow-up event on Jan. 17.

Twitter’s specific focus was on QAnon, the far-right conspiracy theory alleging a cabal of satanist pedophiles in government. Many accounts were banned, including several high-profile ones like that of former national security adviser Michael Flynn and Trump recount lawyer Sidney Powell. Many conservative figures complained that their follower numbers dropped by the thousands over the weekend, and accused Twitter of censoring conservatives broadly.

Well, isn’t it censorship?

Again, not in any legal way. Twitter can kick out whomever it wants to. And all of these users already agreed that Twitter could kick them out. If you’re a Twitter user, you have to.

Part of signing up for Twitter includes agreeing to its terms of service, which lay out a range of allowed and barred behaviors. You almost certainly didn’t look at them; most people don’t. But in a court of law, they would be considered effectual (so long as they’re reasonable – a term that included a promise to pay Twitter a million dollars wouldn’t fly). So all those people being thrown off Twitter already consented to Twitter’s decision, under the law.

But there are plenty of people on Twitter who violate those terms and haven’t been kicked off. Twitter is being completely arbitrary!

Yes, it is. Twitter, among others, has been very inconsistent in application of its rules, particularly regarding misinformation. Mr. Trump, for example, has had many tweets marked and/or hidden for misinformation, while it was only this weekend that Twitter deleted a Chinese embassy tweet that claimed Uyghur women were being “emancipated” by the ongoing internment of the Uyghur minority in Xinjiang.

Still, Mike Masnick, founder of the tech/legal blog Techdirt, writes that a couple of years ago, his team “took a room full of content moderation experts and asked them to make content moderation decisions on eight cases,” and they “couldn’t get these experts to agree on anything.” So while Twitter’s inconsistency is frustrating, it’s par for the course.

What about Parler? It has minimal moderation, and now Big Tech is shutting it down.

Let’s discuss what happened to Parler, as it’s caught up in a different set of issues, mostly dealings between corporations.

Posts on Parler have shown that it was a communications nexus for planning around the Capitol invasion on Jan. 6. Several users have also made what appear to be violent threats against members of the government, including House Speaker Nancy Pelosi and Vice President Mike Pence, who were both inside the Capitol during the siege.

On Jan. 8, Apple warned Parler that if it didn’t institute a moderation policy to deal with violent threats within 24 hours, the app would be banned from its App Store. Google suspended the Parler app from the Google Play store shortly thereafter. Though Parler did delete some posts by Trump-connected lawyer Lin Wood about Mr. Pence, Apple removed the app from its store on Jan. 9. That same day, Amazon Web Services announced it would stop hosting Parler, effectively shutting the social media service down until it finds a new host.

Why isn’t that censorship?

This is all about private entities severing contracts with one another. Parler and Apple had a contract that Apple chose to end – the same with Google, the same with Amazon. In fact, it’s only Amazon’s termination that has affected the inner workings of Parler. The two store bans did not reach the service itself – Parler could have offered other means to users to access its services, perhaps a web interface, as Twitter does.

But let’s put that aside for a moment and look at what Parler’s corporate partners were specifically criticizing. Amazon wrote to Parler that “we cannot provide services to a customer that is unable to effectively identify and remove content that encourages or incites violence against others.” Apple and Google’s complaints were similar, and for good reason. Incitement to violence is not protected speech under the First Amendment. Parler users who were engaged in such speech were not exercising their rights.

Admittedly, the line between hyperbole and incitement is blurry. Parler would need moderators to determine which side of the line users fall on. But that just goes to the point Apple raised with its initial 24-hour warning.

So now conservatives don’t have a social media home. Doesn’t this just make things worse?

Yes. While everything that has happened is legally sound, the social media upheaval, particularly Parler’s deactivation, raises societal concerns.

There’s a reason that people have drawn the comparison between social media and the town square – it’s a 24-hour version of the “market place of ideas” coined by Justice William O. Douglas. The launch of Parler was the start of a major fracturing of that marketplace into ideological camps, and its involuntary shuttering threatens to deepen the fracture.

Parler’s CEO, John Matze, has said the service will relaunch once it finds new hosting services. And it will undoubtedly find ways to circumvent the bans by Google and Apple to reach its users once again. But the new Parler will likely end up more isolated from the rest of the social media ecosystem, with a more embittered user base. That may only exacerbate problems that social media companies cannot solve.

Before becoming Europe editor at the Monitor, Mr. Bright was the research attorney for the Digital Media Law Project at the Berkman Center for Internet and Society at Harvard Law School.