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Twitter To Decide What’s Yelling Fire in a Crowded Theatre?

January 27, 2021

The idea that a private company would decide what is free speech and what is not protected free speech under the United States Constitution seems pretty far fetched.

But that’s in effect happening with Twitter banning President Trump and his like minded cohorts from their social media platform.

From Twitter on January 8:

After close review of recent Tweets from the @realDonaldTrump account and the context around them — specifically how they are being received and interpreted on and off Twitter — we have permanently suspended the account due to the risk of further incitement of violence

In the context of horrific events this week, we made it clear on Wednesday that additional violations of the Twitter Rules would potentially result in this very course of action. Our public interest framework exists to enable the public to hear from elected officials and world leaders directly. It is built on a principle that the people have a right to hold power to account in the open. 

However, we made it clear going back years that these accounts are not above our rules entirely and cannot use Twitter to incite violence, among other things. We will continue to be transparent around our policies and their enforcement.

It’s easy for some to dismiss Twitter as just a social media platform, it doesn’t control speech. In addition, Twitter’s a private company, they can decide what’s tolterated on their platform per their terms of service.

But Twitter is in essence a town square for public discussion, commentary and information/news dissemination. Where do go after Twitter if you want to be heard? We haven’t heard much from Mr. Trump of late.

Shouting fire in a crowded theater is a paraphrase of Justice Oliver Wendell Holmes in his analogy for speech or actions made for the principal purpose of creating panic in the US Supreme Court case of Schreck v US.

The case was later partially overturned by Brandenburg v. Ohio in 1969, which limited the scope of banned speech to that which would be directed to and likely to incite imminent lawless action, a riot.

A pretty strong case can be made that President Trump’s speech was likely to incite imminent lawless action, or a riot. A riot that killed five and threatened much worse.

That’s not the point. What President Trump did was awful.

The point is that growth of social media in the last ten years has handed Jack and his team at Twitter the bench to decide what is free speech or unprotected speech.

With Congress pressuring social media companies to further police expression on their platforms, we may have private companies further policing free speech in this country.

I totally get that we have a problem with people inciting riots and worse via social media.

I just have to believe Justice Holmes would be mighty surprised that 102 years after the Supreme Court decided the limits of free speach in his decision that the country has deferred to Twitter to decide such things.