What a relief it was when Twitter shut Trump down! After he manifestly encouraged the violence at the Capitol on 6 January, Twitter said “Enough!” And without Trump’s deliberately provocative and mendacious tweets every hour, we suddenly had an orderly, sane political arena.
Yet the ability of Twitter to shut Trump down raises thorny issues about the governance of free speech. The classic theory of John Stuart Mill was that everyone should have full liberty of speech and depend on the hearers to weed out falsehood. The alternative is to have the State (or in this case, Twitter) determine what ideas may be expressed, and what is deemed so false and pernicious that it may not be said. That was the way it was in medieval and early modern times, when the Church and the King, in alliance, defined the boundaries of permissible speech.
Haltingly, from the 16th to the 19th centuries, the idea of freedom of speech emerged: the right of anyone, without interference from those in authority, to express their ideas. That’s what was embodied in the First Amendment to the US Constitution, and defended by Mill in his classic, “On Liberty.”
But while Mill depended on rational people to discern falsehood, our experience with Trump and Q-anon tells us we can't count on people to distinguish truth from lies. Mill never had to deal with the likes of Trump.
Although liberal democracy as we know it is inconceivable without broad freedom of speech, democracies should not be obliged to tolerate that which seeks to destroy them.
Although liberal democracy as we know it is inconceivable without broad freedom of speech, democracies should not be obliged to tolerate that which seeks to destroy them. They should not be gateways to tyranny. But who shall judge what is intolerable? In our present situation, that judgment was made by a private, for-profit corporation. Better that it be made by judges appointed by a democratically elected government, who at least are charged with protecting the public interest. There would need to be laws regulating freedom of speech, to be interpreted by the judges.
Who should be subject to such restrictions? My friend Joe DeChristopher argues for “creating sanctions for officeholders for uttering demonstrably untrue speech.” That at least would minimize restrictions on ordinary citizens. But it would not solve the problem posed when the speaker is the chief magistrate of a democratically elected government, and the Supreme Court of that government has defined protected free speech to include money spent by corporations to influence elections.
There is thus no clear and clean democratic remedy to this dilemma. But speech has been restricted in crises many times in our history, under the rough principle articulated by Justice Oliver Wendell Holmes, Jr: “The most stringent protection of free speech would not protect a man falsely shouting fire in a theatre and causing a panic.”
That, surely, is what Donald Trump did on 6 January 2021.
What Twitter did was shut him down. Twitter was under no obligation to do so, and they may have had their own, profit-oriented reasons (though Trump was clearly good for their bottom line). Twitter served the public interest in this instance, but a private corporation should not have the final authority to decide what is intolerable, and enforce it.
Congress must define and the courts must enforce the limits of the tolerable.