Trump’s social media ban: constitutional but problematic


As a politician Trump’s use of social media was historic and unfiltered. However, after peddling a baseless conspiracy and inciting a domestic terrorist attack, platforms that built his presidency and dramatically marked the end of this Trump era by “silencing” him. Trump has been permanently banned from Twitter, Snapchat, Reddit amongst others and banned for, at least, rest of his presidency from Facebook, Instagram and YouTube. 

These bans were attacked by Conservatives’ who argued the action was assault on the First Amendment and are “Orwellian”. Donald Trump Jr tweeted “We are living Orwell’s 1984… Free-speech no longer exists in America”. This argument is inaccurate and does more to suggest that those making it have never read Orwell or indeed The US Constitution.

Whilst the First Amendment argument is moot, banning Trump on social media is troubling

The text of the First Amendment states that “Congress” and therefore the government “shall make no law” “abridging the freedom of speech”. The clause makes no reference to decisions made by private companies. Furthermore, analogies have been made between Trump’s Twitter Ban and the 2018 case of Masterpiece Cakeshop v. Colorado Civil Rights Commission. In this case a Christian bakery refused to make a wedding case for a gay couple citing their religious beliefs. The Supreme Court ruled that they were entitled to refuse service. Whilst the facts differ, the principle is similar. Private businesses have the right to refuse service to whomever they want. This is what social media platforms have done. It should also be noted that when a person joins Twitter or other social media companies they agree to their terms and conditions and you agree to abide by their rules on content, if any person regardless of their political allegiance falls short of this they face penalties and may find their accounts suspended. 

Whilst the First Amendment argument is moot, banning Trump on social media is troubling.

Should such a small group of people be able to control public discourse?

Angela Merkel described Trump’s Twitter Ban as problematic. Permanently removing Trump and other conservatives at the discretion of a handful of people, from social media platforms alters the public discourse. This gives rise to a valid question of whether such a small group of people should be able to control public discourse?

The danger of such is that this is inherently swayed by the owners’ political biases. How far could that extend? Under the gay wedding cake analogy, would there be anything stopping them one day blocking all of those they disagreed with politically, regardless of whether users followed the rules on content? Facebook have previously been accused of manipulating their ‘Trending Topics’ features to promote certain stories. How far could this go? There is a case to be made that social media companies should face greater scrutiny and accountability due to their unique role in facilitating public discourse. 

Banning Trump may have been used as a distraction

As a final point, social media banning Trump and other conservatives, for inciting violence through their rhetoric, may also have been used as a distraction from social media company’s role in the capital insurrection. Alexandria Ocasio-Cortez, in an Instagram live published following last week’s events pointed out that Facebook group recommendations have served to radicalise users by promoting white supremist groups and groups promoting QAnon conspiracies. Twitter has also been accused of not doing enough to effectively fact check those peddling conspiracy theories about the election and Joe Biden. 

Trump’s First Amendment rights remain untouched 

Trump undoubtably deserved to be kicked off Twitter, for years he has used the platform to condone white supremacy, for racist attacks and to peddle downright lies. Even with this action, his First Amendment rights remain untouched. However, this action reaffirms the power of social media in controlling the political discourse and attempts to distract from the blame that social media companies themselves should face following the capital attack, which is problematic.  

Image: Mike Licht via Flickr

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