Justin Hendrix is Editor of Tech Policy Press. The opinion expressed here is his own.
It’s Friday, November 9th, 2024.
After a brutally contentious Presidential election cycle, the race has been called by major media organizations. Donald Trump’s bid to reclaim the White House has failed by a slim margin of the projected Electoral College vote count.
But the former President – who has spent the past five years sowing doubt about the U.S. election system, promoting candidates for state offices with responsibility for election administration, and cheerleading a GOP legislative agenda aimed at weakening protections against partisan tampering in elections – is again unwilling to concede. At a hastily assembled press conference at Mar-a-Lago, he takes to the podium.
“My fellow Americans,” he says, “the Fake News Media has done it again, claiming we lost before any investigation of the widespread fraud in places like Florida, Pennsylvania, Arizona and Wisconsin. We’re hearing from state officials that say this was the most corrupt election in American history, and they are trying to steal it again. They are trying to steal your country.”
“As the rightful President-elect,” he continues, “I am calling on the Governors of Florida, Georgia, Texas, Arizona, Ohio, and Virginia to direct the National Guard to impose martial law and seize voting machines and records in those states. And I am calling on the US military to temporarily relieve the President of his leadership duties and prevent him from using the power of the federal government to prop up this fraudulent outcome. And I am calling on my supporters to help maintain the rule of law in cities and towns across the country. We must rally together and say: Never Again.”
Two of the Governors announce immediately that they will, in fact, activate Guard units, including Pennsylvania’s Doug Mastriano. In two other states, there is conflict between the Governors, Secretaries of State and other election administration officials about what should be done. And in two others, the Governors reject Trump’s request. Protests grow across the country. The first violence starts the following day, as militia groups loyal to the former President fire on a rally at a state capital where the Governor had decided not to support Trump. It is unclear whether the Electoral College threshold will be met to declare an ultimate victor in the race.
Across the country, borders start to emerge. Checkpoints go up even between towns, and the allegiances of local law enforcement are a prime concern for citizens trying to express themselves. Things are starting to get really out of hand, when….
– – –
This fictional scenario could continue, but the trajectory is clear. But why put the scenario forward at all? I find it a useful thought exercise for considering the question now before the major social media platforms: whether to “re-platform” Trump in the coming months. The question is at the fore due to Elon Musk’s stated intent to allow Donald Trump back on the platform that Musk hopes to soon control, and as the Washington Post’s Cristiano Lima has pointed out, his decision may give Facebook and YouTube “cover to follow suit.” That is, if the acquisition goes through at all. But either way, it is worth considering the larger question.
Many voices I respect – including those of Jameel Jaffer at the Knight First Amendment Institute and Anthony Romero at the American Civil Liberties Union (ACLU) – believe Musk would be right to permit Trump back onto the platform, and that presumably the other platforms should eventually do so, as well. Their arguments are grounded in concerns about freedom of expression. Following Tuesday’s news of Musk’s remarks, the ACLU’s Romero issued a two paragraph statement:
“You’d be hard-pressed to find a more steadfast opponent of Trump and his policies than the ACLU, but Elon Musk’s decision to re-platform President Trump is the right call. When a handful of individuals possess so much power over the most important forums for political speech, they should exercise that power with restraint. If Trump violates the platform rules again, Twitter should first employ lesser penalties like removing the offending post — rather than banning a political figure.
“Like it or not, President Trump is one of the most important political figures in this country, and the public has a strong interest in hearing his speech. Indeed, some of Trump’s most offensive tweets ended up being critical evidence in lawsuits filed against him and his administration. And we should know — we filed over 400 legal actions against him.”
Jaffer issued a Twitter thread, a segment of which is presented here in paragraph form:
Trump has no right [to] a Twitter account, but Twitter should let him back on the platform anyway, as [Elon Musk] and [Jack Dorsey] say… It’s best for our democracy if social media platforms like Twitter play as limited a role as possible in deciding the boundaries of acceptable political speech. Trump is terrible, but content-moderation policy isn’t going to save our democracy. Asking a handful of social media companies to expand the role they already play as gatekeepers to political discourse is short-sighted. These companies are always going to be more responsive to the powerful than to the public interest.
Twitter founder and former CEO Jack Dorsey responded to Jaffer’s thread with one word: “Agree.”
The conundrum I’m dealing with is that I also agree with Romero and Jaffer, in theory. Social media platforms should exercise the utmost restraint and demonstrate transparency when limiting the speech of anyone- including political leaders. And yet I cannot fathom how to square these statements with the real world, and the overwhelming evidence we already have of the danger that Donald Trump poses to American democracy, and indeed national security.
Looking back on the past five years, from Trump’s statements regarding Charlottesville to the George Floyd protests to his effort to propagate the Big Lie (which continues to this day), it is arguable that Twitter– and the other platforms– did indeed exercise extraordinary “restraint” on the use of their power over Trump’s ability to reach people using their platforms. They played a “limited role” right up until militia groups literally invaded the Capitol and tried to overturn the 2020 election, at which point they assessed that Trump had violated their terms of service and his continued use of their platforms posed a danger.
The problem is that if the imagined 2024 scenario above were to come to pass, it would not be a surprise. Like the January 6, 2021 insurrection, in retrospect I reckon it would look obvious. With a few choice words — issued in a tweet, or a YouTube video, or a Facebook post — Donald Trump could have directed the National Guard to arrest members of Congress reconvening to certify the Electoral College vote count. He could have, even by accident, activated the Oathkeepers who were waiting for his signal to bring weapons into D.C. and finish the job they started earlier in the day. He could have split the ranks of law enforcement across the country, some of whom might have been loyal to him over any other power.
Would these actions have been legal? Of course not! Would his vast reach on social media have made such illegal orders far easier and more efficient to perpetrate? Absolutely. Even if such commands were only followed by some, it could have resulted in more chaos, violence, and loss of life.
Another reality is that even if he remains banned on the major platforms, Donald Trump’s “political speech” — if we can still call it that — is in no way constrained in any practical way. Some analyses suggest his statements, issued via press release or to the right-wing media that are still eager to give him voice, travel just as far on platforms like Twitter and Facebook as they did before he was banned. The information ecosystem is still tuned to his pitch.
So does it even matter? Here’s where the question becomes a moral one: are Twitter or Facebook or YouTube responsible if they permit Trump back on their platforms, and he uses them to incite violence again? I do not understand how it would be possible to absolve them, given the evidence already on the record about his prior actions. Donald Trump now knows that he can summon a violent mob on command, and so do the platforms.
Employees of Twitter, Facebook and YouTube understand the power their creations wield. For instance, after January 6, Facebook’s own employees decried the role the platform played in stoking division and propagating the Stop the Steal movement, while its researchers tried to work out lessons learned to prevent the platform being used to undermine legitimate elections in the future. If leaders like Mark Zuckerberg, Susan Wojcicki and, perhaps, Elon Musk forget the lessons of January 6, will their own staff forgive them? Richard Hasen has argued persuasively that the engineers and executives in social media companies may be a powerful constituency in the argument to preserve the bans. “As private actors not bound by the First Amendment any more than Twitter or Facebook, social media platform employees have a choice,” wrote Hasen. “They can help promote democracy. Or they can help to facilitate its demise.”
Am I concerned about the “slippery slope” of platforms banning political actors, or of governments using such bans as precedent to demand the platforms ban political opponents? Absolutely! But when it comes to Donald Trump, I think we should praise the platforms for having– for once– the moral clarity to remove a powerful figure who has violated their terms of service, and we should argue in favor of their right to do so. (Jaffer’s thread, at least, acknowledges this right; Romero’s statement is curiously silent on the point.) We are not dealing with hypotheticals here– the consequences are severe, and the danger remains clear and present.
That’s what it comes down to. This is not a question of free speech– unless we accept some mangled version of the concept advanced by conservatives and Trumpian loyalists. Donald Trump’s political speech is not being constrained by the suspensions and bans he provoked after January 6. It’s a question of what role companies should choose to play in advancing the interests of a known demagogue. If Musk puts Trump back on Twitter, that is his choice- but we will all have to live with the consequences.
Justin Hendrix is CEO and Editor of Tech Policy Press, a new nonprofit media venture concerned with the intersection of technology and democracy. Previously, he was Executive Director of NYC Media Lab. He spent over a decade at The Economist in roles including Vice President, Business Development & Innovation. He is an associate research scientist and adjunct professor at NYU Tandon School of Engineering. Opinions expressed here are his own.