Freedom of speech is not just an ideal to admire, it is a fundamental cornerstone that is required for democracy to survive. However, it appears that the majority of the population in Canada and the United States does not understand what free speech actually means and how it is applied. Of late, the topic has risen to the forefront of conversations due to political discourse on social media pages.
On January 8, 2021, Twitter and Facebook both moved to ban Donald Trump’s personal accounts, two days after a mob of Trump supporters sacked the Capitol Building, demanding the suspension of the certification of the presidential election, a process mandated by the U.S. Constitution. Both companies cited earlier posts by Trump that they indicated led to and encouraged the attack.
Let us be clear on what freedom of speech means. First off, it is a limitation on the government’s ability to censor an individual’s or organization’s speech. Second, there is no such thing (in Canada and the U.S.) as unlimited free speech. There are clear limitations on the guarantee of freedom of speech: You cannot encourage hate or violence, you cannot endanger people and you cannot say slanderous things of others. What’s more, this only applies to agents of the government.
As the owner of my house, I may freely restrict topics of conversation within my four walls. Likewise, a business may choose what topics may not be discussed on its premises, or in the case of online businesses, what is said on their websites. Suspending Trump’s account does not violate any assurance of freedom of speech because the social media companies are all private companies. Every user must agree to a user agreement before starting their account, in which the company sets out the rules of use and what will get your account locked or banned.
Let us also be clear: Trump’s account would have been locked many years ago, based on these rules, if he had not been the president. In May of 2020, a user created an account to test Twitter’s rules for locking accounts by reposting every single tweet that Trump posted. The account was locked within 68 hours, less than three days’ worth of Trump’s posts.
Should social media be treated differently than other entities? Some have lately argued that social media should be treated as a public utility and regulated as such. The view is that social media sites have a monopoly power and have broad influence on society and information dissemination. Though they do not meet the traditional criteria for monopolies, a valid argument can be made that they are able to behave in a monopolistic manner.
The easiest solution to this situation, and one that I suspect most social media companies would jump at, is to implement a joint regulatory association that maintains policies for all member companies to follow when it comes to fact-checking posts and locking user accounts. Unfortunately, every country has different laws and widely differing community standards, meaning that a universal industry policy would be impossible to achieve.
A post that would be offensive in Saudi Arabia might be quite mundane in Canada, while something that is offensive in Canada might be quite ordinary in Japan. Maintaining a separate policy for every country would be an enormous undertaking, and yet is almost inevitable given the pervasive nature of social media use and the governmental desire to legislate and regulate everything that impacts the citizenry.
Here, in Canada, our government is hoping to introduce new legislation to regulate social media platforms, while some other countries (like Germany) have already done this. The danger of this step is that either the government could use such a regulator to control speech or else the population will not trust the process for fear that the government is censoring speech, even if it is not.
Guarantees of free speech do not apply to this situation of Trump being banned from social media platforms, but something needs to change before governments irrevocably change the field of play. We should not trust private industry to be the guarantors of our public dialogue and I really do not think that they want the role foisted upon them.
Likewise, we should not want governments to regulate our speech. But, unrestricted distribution of false information has led us to this moment where the U.S. Capitol Building has been sacked by a rampaging mob of barbarians, and an ever-growing percentage of the population refuses to accept basic scientific facts. It has become obvious that most people cannot discern when they are being misled by a repetitive voice; but by the same token, we cannot allow a single entity to control all information that people receive.
It is important that we have the ability to hear dissenting voices, but it is also important that dissenting voices that are representing lies as the truth be called out and dismissed. Just because a “fact” can be found on the internet does not make it true; however, expecting social media companies to police the online dialogue is unreasonable and would force them into an unenviable position.
An open and easily understood process for fact-checking by independent groups, like some of the non-profit fact-checking organizations that have begun sprouting up, might be a good place to start. Government endorsement and an open and easily viewed process are key, so that people can trust that the process cannot be subverted. Individual social media sites have begun this process, but they are not consistent and are attempting to develop their own processes independently.
We can all agree that the status quo is not acceptable, but how to proceed is murky, at best. Due to the fact that social media companies have been timid to act in the past, governments are taking the lead, possibly creating the dangerous situation of governments determining what speech is acceptable, and that would cause serious harm to our democratic institutions.
Governments should help industry to create regulations and processes in an open setting with an autonomous industry regulatory agency that ensures that people can see and understand why a post was removed or why an account was locked. Users should be able to know in advance whether their post will likely be blocked, and there should be a clear and open appeal process where the public can question decision criteria and allow for a review and updating of the regulatory rules.
Éamonn Brosnan is a research associate with the Frontier Centre for Public Policy.
Photo by dole777 on Unsplash.