Twitter’s decision to ban Kanye West raises interesting issues about freedom of speech. Since both Twitter and West are private citizens, the First Amendment is not directly implicated, but its spirit cannot be ignored.
Let’s begin with an indisputable fact: Ye (the former Kanye West) is a virulent antisemite who has called for “death con3” against the Jewish people. He has made other antisemitic statements as well.
The image that got him banned juxtaposes the star of David, a symbol of Judaism for millennia, with the Nazi swastika, the symbol of Hitler’s murder of 6 million Jews. West claims that this juxtaposition is a sign of love. No, it is a sign of hate.
But hate speech is protected under the First Amendment. It also seems to be permitted by Elon Musk‘s new anti-censorship policies at Twitter. These policies do not allow censorship on the basis of offensiveness or disagreement, but they do ban users from inciting violence.
So, the question is whether or not West is inciting violence in violation of Twitter standards. I do not believe he is. Incitement has a specific meaning. It generally requires oral communication urging imminent violence. It rarely covers the written word, and I know of no case where it covers symbols such as the swastika imposed on the Jewish star.
So, if Twitter had been the government, it would be unconstitutional to prohibit the swastika and Jewish star symbol, despicable and hateful as that is. But because Twitter is not the government it has considerable leeway in deciding who shall have access to its platform. It also has leeway in what constitutes incitement, but I think Musk is wrong in categorizing the obnoxious juxtaposition as incitement.
Beyond the specific facts of this troubling action and reaction, Musk’s decision brings to the surface a simmering dispute about the role of giant social media companies—such as Twitter, Facebook, and YouTube—in regulating communications which are offensive and sometimes dangerous.
There are those who claim that these media giants should be viewed as quasi-governmental, and thus subject to some restrictions on their ability to censor. They analogize them to “common carriers,” such as trains and buses, which even though privately owned, are subject to state regulation. But these common carriers are not involved in the dissemination of speech.
A closer analogy would be the telegraph and telephone companies. But these, too, are different from modern media. The telephone and telegraph involve private communications between individuals. Social media involves public communications that are accessed by millions of viewers and readers.
Any attempt by the government to regulate social media would directly involve the First Amendment. These private companies have their own First Amendment rights to decide what to publish and what to censor. When the Miami Herald refused to publish a letter to the editor by a public figure who had been unfairly criticized, the Supreme Court held that the First Amendment precluded the government from requiring a newspaper to publish a letter to the editor. Again, newspapers, which were widely available when our Bill of Rights was ratified, are significantly different from current social media.
The current social media entities do, however, benefit from government action. Congress enacted a law protecting social media from various legal liabilities to which newspapers are subject. This makes sense, because items posted on social media are automatic and immediate. The social media companies, generally, lack the ability to prevent the posting, though they can take them down once they become aware of them. Newspapers on the other hand publish nothing unless the editor approves in advance.
The fact that social media have been given special privileges by legislation makes them different from newspapers and even conventional television stations. But these privileges would seem insufficient to empower the government to impose censorship.
The issues raised by Twitter’s decision to ban Kanye West are some of the most complex and difficult ones regarding free speech. There is no perfect answer to the question of whether giant social media companies that today control so much communication should be subject to any government regulation.
For originalists, it is impossible to know with certainty what Jefferson and Madison would have said about the claim by media companies that they are entitled to censor speech on the basis of their First Amendment rights. Nor can advocates of a living constitution provide a single correct answer to this question. It is a work in progress that may ultimately be influenced by how these media companies employ their power to decide what will be communicated and what will be banned.
Elon Musk has promised a more permissive approach for Twitter than those taken by Facebook and YouTube. Yet he, too, has felt the need to censor hate speech, claiming it constituted incitement. Although I find West’s juxtaposition of the Star of David and the Swastika beneath contempt, I do not believe it should have been censored by Twitter.
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The views expressed in this article are the writer’s own.
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