#TwitterLockOut and #FreeSpeech

Posted by: Joseph Urtuzuastegui

twitterAs I was scrolling through my twitter account last week, I noticed a peculiar hashtag trending: #TwitterPurge. This piqued my interest, so I looked into it to discover that Twitter had embarked on a mission against “Russian-bot” accounts and accounts that circulated “fake news.” This caused a stir in the “Twitter-verse” among some conservative Twitter users who claimed the company was targeting their right to free speech. (Washington Times Twitter Purge) These twitter users were so outraged that some have filed lawsuits against Twitter claiming they had violated a law in California that protects free speech in public spaces, but this law has never been applied to social media or the internet. With these interesting ideas in mind I wanted to dive a little deeper to determine whether there is such a “free speech” right when it comes to what can be tweeted into the “Twitter-sphere” and whether it should be applied to social media in this case.

The First Amendment is a cornerstone of the founding of the United States, and it reads that “Congress shall make no law…abridging the freedom of speech….” (U.S. Const. Amend. 1) There is no denying the right to free speech given by the US Constitution is one of the most important, there is a reason it is first, but it does not take a legal scholar reading the text to determine that the right to free speech is not an explicit right in all circumstances. Interpretation of these words are vital and looking to the exegesis meaning can allow a person to conclude that the founding fathers were trying to limit Congress from silencing the people, and the laws of Congress shall not keep a person from speaking their truths whether it be about the government or not. But, this interpretation approach is not always the best approach because by these principles, obscenity laws would be unconstitutional, so we must also look to the purpose of the Amendment. The Framers who came from an oppressive regime of England had the idea that a citizen should not be told by their own government what to say or believe, and the First Amendment has been the protection for all people. But again, this interpretation is saying what the United States Government cannot do, not what the likes of Twitter is allowed to censor. To break down what is protected in free speech, by this interpretation and many others, a person cannot be censored for free speech by the government or a state actor. We can rule Twitter out as the government, and they do not seem to be acting for the state in any capacity, so the First Amendment guarantee is not thrust upon them. This does not mean that our inquiry should end however, we can always dive a little deeper.

This brings us back around to the conservative twitter users who have claimed Twitter is censoring them which is infringing on their free speech. Really? Let’s take a quick look at those pesky “Terms of Service” that I am sure everybody reads prior to signing on with a service. Twitter’s Terms of Service can be found on their website, and in section four the paragraph titled “Ending These Terms,” Twitter gives themselves the right to “suspend or terminate your account or cease providing you with all or part of the Services at any time for any or no reason….”(Twitter Terms of Service Link) This seems to absolve Twitter from any liability for ceasing to provide Service, but they do not stop there, they give reasons why they may suspend or terminate an account which include if they “reasonably believe: (i) you have violated these Terms or the Twitter Rules, (ii) you create risk or possible legal exposure for us; (iii) your account should be removed due to prolonged inactivity; or (iv) our provision of the Services to you is no longer commercially viable.” Again, Twitter has mastered their contract language by adding “reasonably believe” which all but assures that even if they do make a mistake, as long as they reasonably believed it to be true they will be in the right. This is strike two for the “Twitter free speech” argument, not only does the Constitution fall short of their protection, but the terms conclusively tell them they can be suspended or removed for no reason at all.

There is still an argument over whether free speech should be protected in public places and this has been an argument for a long time. The best string of cases to look to are the shopping mall cases. The Supreme Court in 1946, reversed a conviction of a woman who refused to leave a sidewalk in a town, which was owned by a private company, because the Court reasoned that the woman had a right to hand out her literature. Marsh v. Alabama, 326 U.S. 501, 66 S. Ct. 276, 277 (1946). The Supreme Court continued down this path in 1968, expanding the reasoning in Marsh to hold that a private mall was “functionally equivalent” to the company-owned town in and that the mall had no right to infringe on free speech in a labor dispute. Amalgamated Food Emps. Union v. Logan Valley Plaza, 391 U.S. 308, 88 S. Ct. 1601 (1968). The argument over whether Twitter could censor speech would have best been served after these two cases were finalized. The Supreme Court ultimately changed course and found, in 1976, that the First Amendment does not guarantee free speech rights in a private shopping center. Hudgens v. NLRB, 424 U.S. 507, 96 S. Ct. 1029 (1976). This seems to be strike three and the Twitter users are out of options. Even, assuming the “Twitter-verse” was considered a public space, the Courts have shown that is not helpful, public space owned by a private entity has no guarantee of free speech. The shopping center cases, which have evolved over the years, have solidified the rights of private entities to censor certain types of speech. Twitter, although it is a massive public forum and it is there for people to speak their minds, it does not make it any less of a private company that is providing a service to the public.

For First Amendment proponents, another argument may provide that Twitter has protection as an Online Service Provider (“OSP”) through the Digital Millenium Copyright Act (DMCA), and therefore should not be removing content unless they have been notified consistent with copyright infringement laws. Furthermore, the argument could be that the DMCA provided these protections for an OSP because Congress wanted to protect a user’s free speech. While this is a compelling and inventive argument, it will most likely fail. Important to this argument we must look to the background of how the DMCA and copyright infringement on OSPs work. Looking to copyright infringement, Twitter is an OSP which basically just means that they provide the platform for others to post their content. Copyright holders have exclusive rights that cannot be infringed upon by anybody else without the authority given by the copyright holder. Allowing users to post whatever content they would like without Twitter having any oversight may open Twitter up to contributory liability, which simplified means that Twitter is facilitating the means to infringe a copyright, but the (DMCA) has provided a lot of protection to OSPs known as “safe harbors.” Section 512 of the DMCA are the safe harbor provisions, and they have insulated liability for OSPs which have no knowledge of an infringing activity on their platform. Once there has been notice to the OSP, usually in the form of what is commonly called a “take-down” notice, the OSP must act expeditiously to take down the infringing content. If the OSP acts in accordance with the safe harbor provisions, they will not be liable for any contributory or vicarious liability. It is true that an OSP does afford a lot of protection when it comes to copyright infringing activity on their site, but like the old adage goes “better safe than sorry.” While this argument does prove that Twitter may have negligible liability when it comes to the content that their users post on the site, it still does not get past the hurdle that Twitter is allowed to censor what they would like on their site because they are a privately-owned corporation. The basic principle behind Congress deciding to protect OSPs from being held liable for copyright is deeply rooted in the Constitution. Article I, Sec. 8, Cl. 8 states that Congress shall make laws “to promote the progress of science and useful arts…” has long been used to keep from squashing technological advances, and the cyber community is no different. Using copyright law to slow advancements in the digital age would not be to further the progress of technology, and this is the real purpose of the DMCA safe harbor provisions.

It is completely understandable that people are upset about Twitter censoring them, especially the users who believe they are being censored because of their beliefs, but it seems that not matter how inventive the argument there is nothing that can be done as long as Twitter is a private corporation. Maybe in the future if Twitter does become a state actor, there will be a valid argument, but until that happens Twitter is free to choose who has a voice and who does not on their website. Twitter has the backing of both First Amendment case law and their Terms of Service licensing agreement to authorize a #TwitterLockOut.


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