Issue #14 “The internet is a mirror on our society”
A conversation with internet law expert Dr. Eric Goldman.
In early January, President Donald Trump was taken off of Twitter and other mainstream social media services in the aftermath of the storming of the U.S. Capitol. The move sparked a debate about concepts like “censorship” and “deplatforming”. It has also led some to insist that this was an infringement on the president’s freedom of expression. To clear up the confusion, we spoke with an expert on internet law. Dr. Eric Goldman is the Associate Dean of Research, Professor of Law and Co-Director of the High Tech Law Institute at Santa Clara University.
Ziv: Whether you agree with President Donald Trump's politics or not, how concerned should the general public be that social media platforms like Twitter can censor or deplatform individuals from their service?
Eric: I think the nomenclature matters here. So let’s break those two questions apart. There’s a question about whether or not an internet service censors its users whenever it removes items of content or terminates accounts. And then there’s the question about whether or not it was a good thing that Twitter, in this case, deplatformed President Donald Trump. So the first point is about the notion that private companies censor their users and I am a real stickler about this point because of the fact that censorship is something that the government does using its coercive state power. When private publishers exercise their editorial discretion about what they think is fit for their audience, that’s not censorship, that’s actually what we expect them to do. We don’t want them to provide us a true, unfiltered, straight feed of content that they’re getting; we want them to apply their editorial discretion to curate and to customize their community for other audiences' needs. So sorry about the pedantic point about censorship but it’s really important to understand why Twitter didn’t censor President Trump and it literally couldn’t so long as it is a private actor. Now about the question of Twitter deplatforming President Trump. I think that the reality is that Trump could never play by Twitter’s rules. Even when Twitter bent those rules to try to make it easier for him to stay on the site, he couldn’t even conform with that. And so it makes complete sense that Twitter finally said that this person can’t play by our rules, this person doesn’t understand what our audience needs and therefore we can’t continue to provide our publication tools to him.
Ziv: When a social media company takes down an individual’s account from their service, that would not be deemed an infringement on their freedom of speech?
Eric: That’s part of what we discussed earlier regarding censorship. When the government imposes speech restrictions, that’s censorship, and here in the United States that violates the First Amendment. The government literally does not have the power to do that. Whereas, when a private service decides what content they’re comfortable publishing or not, that’s editorial discretion and the constitution protects that editorial discretion. The First Amendment fundamentally protects services like Twitter from government intervention and also protects Twitter’s power or right to decide which things it wants to publish. If an internet service chooses not to publish content then they lose access to that audience. One of the beautiful aspects of the internet is that the cost of publication is quite low and so even if you are no longer eligible to publish on one service and access that service’s audience you're still free to find other services that will carry your content and to go out and find your own audience. So I think that really understanding the difference between this idea that internet services are depriving someone of their freedom of speech and understanding that there’s no guaranteed right to a service’s audience, I think, helps frame the question. We expect that internet services are going to take the steps necessary to make sure that they are actually building their audience and that the content that’s available in their database is actually benefiting the audience. And the point is that each service might have different audiences so they might set different rules about what kind of content is best for that particular audience. So you’re asking me what my views are about particular rules for content and the point is that there is no one-size-fits-all rule that’s perfect for every audience.
Yarden: You are a proponent of Section 230. What is this law and why is it so important for internet companies?
Eric: Section 230 is really a critical law in the United States and in some ways it actually benefits the entire world because many services that are based in the U.S. are able to take advantage of the law for their operations elsewhere. Section 230, in short, says that websites aren’t liable for third-party content. It’s a really elegant and simple principle that basically says that people who post content are responsible for that content but then the services that allow them to post aren’t equally responsible. So it puts the locus of responsibility on the people who are really in the best position to manage it, the people who are making the submissions. And by freeing up the internet services from feeling the legal responsibility for that content, it allows for new classes of content that never existed in the offline world. An obvious example is something like consumer reviews. We literally didn’t have a consumer review function in the offline world. It wasn’t quite possible under the combination of the technology and the legal rules, but Section 230 made something like that available. As [another] example, we’re conducting this interview by Zoom which is a service that benefits from this law. We’re having this call in part because of the fact that Section 230 makes it possible for Zoom to connect us.
Ziv: A New York Times article detailed the behind-the-scenes decision by Twitter’s executive team to suspend President Trump’s account. Jack Dorsey, the CEO, had reservations about making this move, but the team around him ultimately convinced him it was the right way to go. Is this a sign that social media companies are facing a crisis when it comes to deciding how to deal with speech on their services?
Eric: Yeah, there’s no doubt that Twitter was in a no-win situation. On the one hand, as I mentioned, President Trump was repeatedly violating its rules and creating significant friction for its community and Twitter could no longer ignore that. On the other hand, Twitter knew that if it intervened on Trump’s account it was basically going to split the Twitter community; crack it almost right down the middle and it was going to drive a bunch of users away who believe that the company’s actions were illegitimate. Furthermore, Twitter doesn’t really like the idea of being the person who decides what a president can or cannot say on its service. It’s a really awkward dynamic for a private publisher to tell the most powerful politician in our country what is appropriate to say or not say. So it’s easy to see why Twitter was so torn about this issue and why it paralyzed them for functionally years. I think you could see in the New York Times article you mentioned that, on the one hand, Jack Dorsey has this vision about how Twitter can be inclusive and how it can be the place where people go to hear from powerful people like Trump. And you could hear the rest of the management team saying that this isn’t working and that this is causing problems for our community and its causing problems for our country. We have to do a different approach. Either choice was going to alienate a large segment of Twitter’s user base.
Yarden: Germany’s Chancellor Angela Merkel was troubled by the Trump Twitter ban and called it “problematic.” So what do you anticipate will happen next? Should other politicians expect that they too could be taken off of social media services?
Eric: Two things. First, notice that actually what Merkel said was quite troubling in its own right. The idea is that governments cannot force internet services to carry government-produced content and, in the case of Donald Trump’s account, that’s what it was. Trump had admitted that he was using that account for his government purposes. The idea that a private publisher would be compelled to carry the government’s speech is really antithetical to most democracies. That’s the kind of thing you find in totalitarian regimes where the media becomes an arm of the government and it becomes a mouthpiece for government propaganda. I don’t think that’s what Merkel meant but that’s actually what she was saying. I think that we really need to be thoughtful about whether we want to celebrate that because it takes us down a road that is really antithetical to free speech and it’s also antithetical to freedom in the country generally. Having said that, it is weird to think that a service like Twitter or any other social media service could pull the plug on a politician’s account and say: you’re no longer welcome to have that conversation here. Something about that feels a little bit backwards and yet, in fact, we’ve seen here in the United States a bunch of politicians deliberately poisoning the conversations with misinformation using their social media accounts of which Trump was one example but he’s not alone in that respect. And so the idea is that we need the social media services to go ahead and ensure that politicians are not misusing their accounts for those kinds of poisonous distributions of misinformation. So, yes, it does mean that politicians have to be thoughtful about how they use their accounts because of the fact that we’ve seen so many of them misuse them.
Ziv: So now that Trump is “offline” (for now) how does that make you feel?
Eric: So I don’t know what life is like in your world but in my world, it’s like a breath of fresh air has blown over the internet since Trump has lost his Twitter account. Literally, in my communities, people are decompressing from the shell-shock. The daily traumas that were instigated by Trump dropping bombs via Twitter and taking away his ability to drop those bombs has just allowed us to achieve a new level of self-actualization that we haven’t been able to achieve for the last four years. It’s really a dramatic change in the entire ecosystem that I travel in so I think it’s a really powerful lesson about the power of words. You know, Twitter can’t arrest people, handcuff them and throw them in jail. They don’t have that kind of police power but they do have the power to let people drop these rhetorical bombs on our community in ways that have been just causing ripple effects through our entire country and so I think that the lesson that social media services are likely to take away from Twitter’s move is that they probably have to do more of that than they used to. Things have gotten out of control with COVID-19 misinformation; things like racism and white supremacy groups that are actively fomenting racial divides. We’ve seen these really pernicious ideas take root that have just really harmed a lot of communities and the lesson that I hope that many of the internet services, especially social media services, take away is that they may have to do more. Not from a legal standpoint but because if they don’t, they’re actually really doing damage to their audience.
Ziv: Do you think it is getting increasingly harder to track the movements of far-right extremists on social media services?
Eric: It’s a really powerful question and it really gets down to the basic structure of the internet. The way I describe it is that one model of the internet is basically a mirror on our society. When we look at the internet we’re seeing ourselves with all of our flaws and faults. And so as you’re describing, when we see all these “alt-right” activities online what we’re just seeing is the fact that that’s how people feel and we just normally wouldn’t see it because they’re not in my local community. If you draw a five-mile radius there’s probably only a handful of people who feel that way whereas in other parts of the country that might be the dominant norm and I won’t see it except through the internet. The question is to what extent the internet accelerates or amplifies those problems. Does the internet radicalize people? I think there’s some risk of that; I think that there are some situations where that’s true and so those are situations where we might choose to intervene. But what I think I take away from things like what Trump did with his Twitter account and with things like QAnon or COVID-19 misinformation, is that the internet services’ passivity towards that content helped normalize the conversations. It made it seem like these were okay conversations to have and I think that was its own perniciousness and so that’s the thing I think that internet services need to curb. They are not necessarily going to eliminate the fact that people hold prejudices of our society, they can’t do that. And so in that sense they’re never going to fix that mere problem, but I think that they can fix the normalization problem to say that these are not okay conversations to take place in our society and if this is how you're feeling then we really need to have a conversation about why and the harm that those feelings have towards your community members.
This interview was edited for brevity and clarity.
About the creators:
Co-Creator & Host
Student in Photography at Ryerson University. Financial Director of Function Magazine.
Co-Creator & Host
Editorial producer at Zoomer Radio in Toronto, alumnus of the Master of Media in Journalism and Communication program at Western University, and a former intern at q on CBC Radio.