Can Social Media and Politicians Just Call a Truce?
Last year, Twitter made its removal of President Trump’s account permanent, a decision the company initiated after the Capitol riot. This rankled many — including some people on the political left — who realized how dependent lawmakers are on social media for constituent outreach. It inflamed social media companies’ relationship with Republicans, who have increasingly allied with Democrats — including in state antitrust cases, congressional hearings, and punitive bills — to scrutinize the sector’s social and political power.
These responses don’t fix the real problem of online free speech; they distract lawmakers and company executives. A truce is possible if social media companies declare that, in the name of free speech and democratic norms, they will resist removing the accounts of public officials and public agencies. It’s not about letting politicians off the hook. It’s about Silicon Valley executives recognizing that, for many Americans, social media has replaced town hall meetings and public hearings as a venue for interacting with their representatives, regulators, and school boards.
If political expedience is not persuasive enough for these executives, the decision may be taken out of their hands by courts. As litigation against then-President Trump showed, judges are increasingly recognizing lawmakers’ and government agencies’ social media feeds and pages as “public forums.” This phrase, often used colloquially when referring to social media, has a distinct legal meaning. Public forums are “free speech zones” in the real (non-internet) world. Classic examples include sidewalks or the National Mall.
By government designation or by custom, these public forums are areas where the government is bound by the First Amendment. And they are not limited to public property. They can include “private property dedicated to public use,” as the Supreme Court stated in a 1985 case, Cornelius v. NAACP.
So, even though public officials’ social media accounts reside on private Facebook, YouTube, and Twitter servers, many courts still deem them public forums. We’ve already seen rulings that public officials, ranging from Trump to a lawmaker in Florida to a Wisconsin school board, cannot block users or delete unwanted comments even though social media is private property.
Judges in these decisions reasoned that public officials, via their social media accounts, are involved in constituent outreach. Among other things, they receive public input on their policies much as they might do in a government meeting room or when viewing a protest. Our officials’ attorneys are beginning to recommend restraint in deleting users’ comments on social media, lest anyone violate the First Amendment.
It’s incongruous, to say the least, for private companies to unilaterally remove a public forum that public officials and constituents rely on, even if it’s a social media page. Could church leaders, for example, agree to host a municipal public meeting in their auditorium and then pick and choose who can participate in that public meeting? Based on existing court decisions, I suspect not.
Setting a clear policy of restraint would also help social media companies avoid massive future political controversies. The White House publicly stated this summer, for instance, that they are working directly with social media companies to remove COVID-19 misinformation. President Biden has shown no interest in shutting down Republican accounts, but this practice, once established, is easily abused. A future resident of the White House could easily launder his or her political speech-removal efforts and leave the public with the impression that it was the voluntary action of social media companies.
With all of this in mind, here’s a plea to social media companies: Declare that the future removal of public forums — lawmaker and government agency accounts — will come only after a public process, like an election loss or court ruling. So long as they remain in elected office and are using their accounts for public purposes, the accounts should stay. Lawmakers should be held accountable by their voters, courts, and their elected peers, not by the opaque and contentious “content moderation” process.
Executives at social media companies rightly hate being the arbiters of which speech and which politician is out-of-bounds. It’s a task that can never be resolved. Social media companies can focus on creating diverse communities for all users and dampen the escalating legal combat with politicians. Whatever one thinks of the current ad hoc silencing of political speech and public figures, let’s agree that it’s not sustainable.
Brent Skorup is a lawyer, a senior research fellow at the Mercatus Center at George Mason University, and a visiting faculty fellow at the Nebraska Governance and Technology Center at the University of Nebraska College of Law. Opinions expressed here are his own.
