Prohibiting Donald trump, Twitter and Facebook hoped to quell complaints – from Democrats and others – that they allowed the US president to use their platforms to sow disinformation and hatred.
In doing so, however, they amplified a complaint long made by the Conservatives that too much political influence is now wielded by a handful of private tech companies who can decide who can and cannot reach their audiences.
The events of the past week have given ammunition to critics on both sides who want tighter regulations for social media platforms.
“The actions of tech companies last week were legal, there’s no question about it,” said Jameel Jaffer, executive director of the Knight First Amendment Institute at Columbia University. “But they also underline the immense power that some of these companies now have as guardians of the public square.”
Facebook and Twitter at the same time banned Mr. Trump after deciding his actions in last week’s riot by his supporters in the United States Capitol, it was an incitement to violence.
But if the platforms hoped to stave off the threat of regulation from the Democrats – who last week gained control of the Senate to add to the House of Representatives and the White House – they appear to have failed.
Richard Blumenthal, one of the Democratic senators who has spearheaded attempts to introduce tougher regulations on big tech companies, said the riot at the Capitol “Would renew and focus the need for Congress to reform the privileges and obligations of big tech.”
The part of the law that Blumenthal and his Senate colleagues want to review is the legal protection afforded to online businesses at the birth of online communication. Under section 230 of the Decency of Communications Act 1996, Internet platforms can post and moderate content from third parties without being held legally responsible for what they say.
Businesses call this part of the law the “twenty-six words that made the Internet.”
Critics say corporations have gained such power over political discourse that these legal protections should no longer apply.
Mr. Trump and Joe biden, the Democratic President-elect has in the past called for the repeal of Section 230, and several members of Congress are working on bills that would limit their application. The problem is, there is little agreement on what these limits should be.
Daphne Keller, director of the Platform Regulation program at Stanford University, said: “Democrats and Republicans both agree that they want to change Section 230, but they both want to change section 230. different reasons. Democrats want platforms to shoot more, but Republicans want platforms to shoot less.
“The question is whether either side has the voice to push something through.”
Lindsey Graham, the Republican of South Carolina who is the outgoing chairman of the Senate Judiciary Committee, has proposed allowing only companies to be granted immunity from defamation law if they subscribe to a set of guidelines on best practices that would be established by an independent commission.
He is promoting a measure that would phase out Section 230 if a replacement is not agreed by 2023.
Brian Schatz, the Democratic Senator from Hawaii, and his Republican colleague John Thune of South Dakota jointly proposed legislation that would require companies to be more transparent about how they and why they moderate content.
Facebook and Twitter say they would support some restrictions in Section 230, but they don’t say exactly what. Industry lobbyists argue that any change except the most minor will make companies less likely to moderate content so as not to be classified as publishers.
Meanwhile, a similar debate is unfolding outside the United States. In the UK, Matt Hancock, the Health Secretary, argued that the decision to ban Mr. Trump “raises questions about [social media companies’] editorial judgments and how they are regulated ”. In Germany, Chancellor Angela Merkel called the Twitter movement a “problematic” violation of the “fundamental right to freedom of expression”.
US lawyers say Facebook and Twitter acted legally by banning Mr. Trump, since the obligation to guarantee free speech under the first amendment of the US constitution only applies to government, not private companies .
This is the case even when the companies in question have significant power over online speech.
Last year a US appeals court reversed a complaint from Prager University, a right-wing YouTube channel, that the video-sharing site violated its right to free speech by limiting its reach.
The judge ruled: “Despite YouTube’s ubiquity and role as a public platform, it remains a private forum, not a public forum subject to judicial review under the First Amendment.”
U.S. supporters of tighter regulation are paying close attention to what’s happening in the EU, where the proposed digital services law would give users the right to challenge social media sites that remove their content.
Gregory Magarian, professor of law at the University of Washington, said: “Europe has shown that it is possible to enforce incremental regulations on technology companies without strangling them or destroying their business models. If it can be done in Europe and elsewhere, it can be done here. “