Social Media Deplatforming and the Law

Social Media Deplatforming and the Law

Recent events have highlighted the very real dangers to online viewpoint expression represented by the editorial actions of major social media platforms. The power of words to influence (for good or evil) underscores the importance of God’s people graciously engaging the culture with wisdom and discretion. I wrote this article for the American Association of Christian Schools’ Journal of Christian Education in the fall of 2019. It provides what I hope will be a helpful overview of the dangers of private companies censoring speech online as well as the pitfalls of government intervention. There are no easy answers! President Trump recently issued an Executive Order on Preventing Online Censorship (May 28, 2020). Of particular note, the EO signals the administration’s position that CDA Section 230 (discussed in detail below) “immunity should not extend beyond its text and purpose to provide protection for those who purport to provide users a forum for free and open speech, but in reality use their power over a vital means of communication to engage in deceptive or pretextual actions stifling free and open debate by censoring certain viewpoints.” Special thanks to the AACS for permission to republish this article on the MBU website. -Dr. Matt Davis 6/1/2020

Social media deplatforming represents a significant emerging threat to educational ministry. The word first appears online in 2017 in the context of a national conference avoiding bad publicity by rescinding an invitation for a controversial speaker (Wilton, 2019). Use of the word has expanded to include banning, limiting, or demonetizing an individual or organization’s social media access based on the content or ideology of their message. This may be caused by their use of hate speech, engaging in harassment, or otherwise violating the community standards established by the platform (Wilton, 2019).

Congressional Hearings, Public Denials, and Shifting Standards

Politicians and some media outlets have brought increased scrutiny to the problem of deplatforming due to high profile cases in which Twitter, Facebook, and YouTube have banned users on ideological or political grounds. Conservatives and conservative viewpoints seem to be particularly singled out for deplatforming.

YouTube (owned by Google) sparked an uproar when its vice president for government affairs, Karan Bhatia, claimed in testimony before the Senate Judiciary Committee in July that “Google is not politically biased” while at the same time admitting that YouTube had restricted access to hundreds of PragerU videos, including a video on the Ten Commandments. YouTube’s “restricted” designation demonetizes and limits public access to videos deemed to be pornographic, dangerous, threatening, or violent (Guidice, 2019). Under questioning by Senator Ted Cruz concerning its supposedly unbiased application of that standard to the Ten Commandments video in particular, Bhatia responded, “I believe [it] contains references to murder” (C-SPAN, 2019). As in, “Thou shalt not kill”?

Social media platforms have not been transparent about what viewpoints will be tolerated. In fact, the standard seems to be intentionally vague and constantly in flux. For example, Meghan Murphy, a feminist journalist, was banned from Twitter when her tweet that simply said, “men are not women” was deemed “hate speech” in violation of Twitter’s community standards (Charen, 2019). Twitter has since expanded its definition of hateful conduct to include “targeted misgendering or deadnaming of transgender individuals” (Twitter, 2019). (Deadnaming is the act of referring to a transgender individual by his/her birth name.)

Balancing Competing Interests

Social media outlets certainly must balance a complicated and potentially conflicting set of values—including their own corporate values—with concerns for profitability and community/activist outrage over the content hosted on the platform. The task is quite complicated. Federal law requires platforms to quickly remove content that infringes on the legal intellectual property rights of content creators (Buffington, 2015). Election laws and a patchwork of international laws and regulations mandate immediate action and require a vast army of engineers and compliance officers to keep up with the onslaught of bots, cyberattacks, and even disinformation campaigns by foreign governments and bad actors (Sandlin & Whitman, 2019).

In striking this balance, however, it seems that the “ban hammer” has fallen much more heavily on outspoken conservative voices. Each social media platform insists that conservatives are not being targeted but rather that they are merely cracking down on hateful conduct, extremism, and misinformation (Coaston, 2019). Meghan Murphy, who has become an outspoken advocate against social media censorship, makes an important point:

I don’t want to draw a line that ends up silencing people who have political ideas, or who are talking about ideologies, or who are challenging popular discourse that has been deemed offensive. Now we’re banned, we’re silenced, and I actually think it’s quite dangerous. This is the new public square, and they know it. [emphasis added] (Manchester, 2018)

The New Public Square

America’s Founders placed an extraordinarily high value on free speech and free discourse not only as a fundamental right but also as an essential element of the continued freedom of the national republic itself. Many of the Founders wrote extensively on the subject. Take James Madison, for example, “For the people to rule wisely, they must be free to think and speak without fear of reprisal.” The Founders saw the federal government itself as the single greatest threat to the success of the “Great Experiment,” and free and unfettered speech was often seen as the antidote.

How would the Founders respond to this new threat to public discourse? Madison once explained,

Our First Amendment freedoms give us the right to think what we like and say what we please. And if we the people are to govern ourselves, we must have these rights, even if they are misused by a minority. (Madison’s views are explained well in this piece: Cost, 2017)

As Justice Oliver Wendell Holmes articulated,

The ultimate good desired is better reached by free trade in ideas—that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That, at any rate, is the theory of our Constitution. It is an experiment, as all life is an experiment. (Abrams v. United States, 1919)

When a particular political or religious viewpoint is silenced, does it matter whether the silencing was done by the government or by a private company that controls the platform? The end result is the same, and the free marketplace of ideas no longer functions. A handful of private companies have an unprecedented power over the consciousness of the general public that even the most totalitarian governments in history could never have dreamed of wielding. Surely the Founders would have seen this cabal as a threat worth confronting.

The purge has immediate real-world consequences for education. In the wake of banning Steven Crowder for poking fun at an LGBT activist using the activist’s own personal profile description, Twitter expanded its policies once again to prohibit “videos alleging a group is superior in order to justify discrimination, segregation or exclusion.” Based on this new standard, Twitter immediately deleted historically significant documentaries and references to the classic 1935 Nazi propaganda film Triumph of the Will (VanBuren, 2019) and banned history teachers for posting material related to Adolph Hitler as violating the ban on hate speech (Waterson, 2019).

Political and Ideological Conflicts

Liberal outlets, once considered champions of free speech, now celebrate the deplatforming of conservatives. When right-leaning personalities were deplatformed, a journalist squealed, “If a bigot rants in a forest, and nobody is around to hear him, does anybody care what that idiot says?” (Kraus, 2018). In fact, the editor-in-chief of the Huffington Post recently made clear their opinion that too much of the wrong kind of free speech represents a threat to democracy. “Open platforms that once seemed radically democratizing now threaten, with the tsunami of false information we all face daily, to undermine democracy. When everyone has a megaphone, no one can be heard” (Polgreen, 2019).

But proposed solutions to the problem of deplatforming present a clash of ideological and political values for conservatives as well. Who but the government can force social media companies to change their policies and practices? But do you really want the government regulating online conversations? Conservatives believe in limited government and free market principles. Surely the defenders of Jack Phillips’ right to refuse to bake LGBT-promoting cakes cannot propose that website owners must promote values with which they disagree.

Elusive Solutions – No Easy Answers

The Internet and more specifically social media are new frontiers for the legal system. The courts have done their best to adapt. Regulations in areas like online banking and commercial transactions are well established, but in other areas the courts seem to be learning as they go.

The Federal Trade Commission is investigating Facebook, Google (and YouTube), Apple, and Amazon for anti-trust violations in connection with their acquisitions of competing technologies as they hatch (Kendall, 2019). The size and scope of the established social media giants makes it impossible for any viable competitor to emerge. “Facebook’s unparalleled user numbers combined with unrivaled riches amounts to a monopoly that would put U.S. Steel to shame” (Morefield, 2019). The FTC’s threat to break up their companies could be used to negotiate a more even playing field for consumers.

Senator Ted Cruz (R-TX) and Senator Josh Hawley (R- MO) have suggested revoking the immunity offered by Section 230 of the Communications Decency Act to social media platforms for illegal or offensive content posted by their users (Kelly, 2019). Section 230 states, “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” The section goes on to clarify that platforms are immune from liability for making good faith attempts to “restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable” (47 USC §230(c)).

Holding non-neutral platforms liable for biased censorship carries some appeal. It is certainly disingenuous for social media companies to argue that they are mere platforms for user-generated content while they are shaping that content through biased censoring of political, religious, and ideological views with which the company disagrees. The proposal could backfire, however, if it prompts social media platforms to over- censor content for fear of liability or to simply wither away. Would we be better off without this digital public square? According to the authors of §230, it is one of the “bulwarks of liberal free speech and radically open discourse in a political era increasingly hostile to both”; and, “in the absence of Section 230, the Internet as we know it would shrivel” (Brown, 2019).

It seems inevitable that the only viable solutions will require some level of government regulation. The courts are well accustomed to protecting even unpopular speech while limiting or proscribing other illegal forms of speech like obscenity, defamation, commercial fraud, appropriation, and trademark infringement. The Supreme Court has decided more than 30 cases enforcing First Amendment protections in just the last ten years (Freedom Forum Institute, 2019).

Consider, for example, the legal balance of civil rights in the context of physical property. The Fifth Amendment prohibits the government from taking your private property without just compensation, but this is of no comfort whatsoever if the government did not also prohibit private citizens from taking your land against your will! As with most civil rights, a legal balance must be struck that protects the rights of individuals to speak freely and limits interference with the rights and interests of businesses to promote their values and profitability.

What is a Christian Educator to Do?

We must not brush off concerns about deplatforming as too distant to fuss over. The fact is every Bible-believing Christian institution is squarely in the cross hairs of this issue.

Before [Alex] Jones, Paul Joseph Watson, and Milo, it was key “alt-right” figures like Jared Taylor, David Duke and Richard Spencer being purged from various platforms. Next, it will be religious groups that oppose gay marriage. . . . Maybe those affected are a few ideological steps away, but we should all be asking the question: How many steps until it’s us? (Morefield, 2019)

Educate yourself on this imminent threat to free speech and civil discourse in our country.

We must maintain the courage to speak truth in a culture increasingly resistant to hearing it. Our calling as Christians and our duty as educators demand we shine as lights in the darkness—pointing our students to the unchanging Truth of God’s Word and the grace of God offered to sinners of all kinds. This may result in ridicule, persecution, and even the loss of our social media platforms. Has the Lord required too much of us if that is our fate? One of the most insidious aspects of the current climate is the chilling effect it is having on those who desire to speak up for traditional family values.

We must teach our students to think biblically and clearly. Technology may complicate the debates, but the matters at issue are as old as sin itself. Christian education has always existed as an alternative to the world’s system and values. The competition for the hearts and minds of the next generation has never been fiercer, and the stakes have never been higher.

We must be creative in our methods and gracious with our words. Colossians 4:6, 1 Peter 3:15, and Ephesians 4:29 apply to online speech! All too often the right message is overshadowed when packaged in an ugly and alienating tone. Throughout history, the world’s forces have attempted to silence God’s people. As doors open and close, we must be ready and willing to share biblical truth with grace-filled words that draw others to the Savior.

This is an exciting time to be on the front lines of Christian education ministry; you have never been more vital to the communication of Truth and the preservation of the nation!


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