In the aftermath of the shocking scenes of mayhem, lawlessness, and possibly treasonous riots in Washington, D.C. as the House and Senate were trying to certify the 2020 election, Twitter and Facebook have suspended outgoing President Trump’s accounts, citing repeated violations of their own policies. While many are pointing out that this is rather weak sauce considering just how rampant and pernicious Trump’s lies have been since, well, the start of his political career, many Trump supporters are complaining that Trump’s right to free speech has been cancelled.
However, a brief look at our First Amendment’s history will quickly show that free speech hasn’t been cancelled at all — its limits have simply been re-established. Many will probably think quickly to the proverbial adage that one “can’t shout ‘fire’ in a crowded movie theater”, the popular paraphrase of Oliver Wendell Holmes’s opinion in the 1919 Supreme Court case Schenck v. United States. This unanimous decision concluded that those who were passing out flyers urging men to resist induction into the military could be charged and convicted with obstructing the draft, which is a criminal offense.
However, the more-relevant case is more likely to be the 1969 case Brandenburg v. Ohio, which held that the government can’t punish or prevent inflammatory speech unless it is “directed to inciting or producing imminent lawless action and is likely to incite or produce such action”, such as a riot. This hews closer to the idea of shouting “fire” in a crowded theater, as it would likely incite a stampeded for the doors during which many people could get trampled, perhaps even killed, by panicked patrons desperate to escape.
Returning then to Trump, Twitter warned him on Wednesday that it would suspend his account if he continued to aggressively push falsehoods about the outcome of the 2020 election. On Thursday, Facebook suspended his acount until after Biden’s inauguration, and, on Friday, Twitter identified two of Trump’s tweets as “highly likely to encourage and inspire people to replicate the criminal acts that took place at the US Capitol on January 6, 2021” and then permanently suspended his account.
On Wednesday, of course, Trump told his supporters to march on Washington, D.C. and that he would march with them (which he didn’t, of course). By now, we’ve all seen footage from what ensued during that march. Five people died as hundreds of rioters stormed Capitol Hill, overwhelming police, breaking windows and doors, and forcing their way into the building. While Trump did not directly tell his supporters to commit these specific acts, he had repeatedly stoked anger among them against the election and against politicians he deemed insufficiently loyal to his cause. By the time Twitter and Facebook suspended his accounts, then, the damage — both figurative as well as literal — had been done.
Back to Brandenburg, then, Twitter and Facebook are obviously not the government, but they are accused of limiting Trump’s freedom of speech. As private companies, they have the freedom to set parameters for their users. As both companies have repeatedly told him, he has violated those parameters many, many times. Before suspending his account, Twitter had flagged several hundred of his tweets as being false or misleading. Using the standard established by the Brandenburg decision, it seems pretty obvious to any reasonable observer that Trump’s tweets were “directed to inciting or producing imminent lawless action and [were] likely to incite or produce such action”. By so ceaselessly promoting thoroughly debunked claims about a rigged election, and by saying that certain politicians would pay a price for their failure to support him, Trump set in motion a mob action that was certainly lawless.
Trump may have lost his most-powerful social media platforms, but he has not lost his freedom of speech. He is still President of the United States, after all, and can command a national audience whenever he feels like it. The fact that he can no longer do so in 280 characters or less is an inconvenience, nothing more.