Trump, Twitter, and Freedom of Speech: Constitution in Crisis

Posted on 1/14/2021 9:50:54 AM

In Part 1 of the series Constitution in Crisis, IUP Department of Political Science faculty members David Chambers and Gwen Torges discussed the ways in which a sitting US president could be removed from office. In this second installment, Torges talks about social media and the First Amendment and how those things relate to recent events.

Gwen Torges

Gwen Torges

  • Bachelor’s Degree, Communications, California State-Fullerton
  • Master’s Degree, Political Science, University of Arizona
  • Doctoral Degree, Political Science, University of Arizona

Classes Taught

  • PLSC 111 American Politics
  • PLSC 250 Public Policy
  • PLSC 358/558 Judicial Process
  • PLSC 359/559 Constitutional Law and Civil Liberties
  • PLSC 405 Sexuality and the Law

Some people say President Trump is responsible for what happened in Washington, DC, on January 6. But all he did was speak. He has the right to say what he wants, doesn’t he?

Yes, but there are some exceptions to the First Amendment, such as inciting violent unlawful actions. Speech that incites imminent, violent unlawful action is not protected. But the unlawful action being called for must be very serious, and the speech has to be the direct cause of the action.

Twitter took away President Trump’s account. Isn’t that a violation of his First Amendment rights?

No. The First Amendment says Congress will not impede your freedom of speech. It’s always meant that the government can’t take away your speech or punish you for your speech. Twitter is simply a company, not a government entity. Legally, he has not been denied his First Amendment rights. Here’s an example that I teach in my classes: Let’s say the Pennsylvania legislature decided that there’s too much violence in video games, so it passed a law that you can’t buy violent video games until you’re 21. That would be a First Amendment issue. But if the CEO of Walmart woke up tomorrow and said that Walmart will no longer sell violent video games, there is no First Amendment question. Twitter, like Walmart, is just a private entity, and it can make its own business decisions.

President Trump has talked a lot about wanting Section 230 repealed. What’s that about?

It’s part of the Communications Decency Act of 1988. Today, traditional publishers can be sued if they print something that’s libelous, meaning you’re using untrue statements meant to harm someone’s character in a way that impacts their ability to make money. In the 1980s, they passed a law that says internet providers and platforms are not like traditional publishers. They made a distinction between someone who creates content or who picks the content it publishes versus a platform, which simply amplifies what another person says. The law said both internet service providers and platforms were protected, i.e., they can’t be sued for what a third party says on their platform. Trump has been wanting to get rid of Section 230, because he thinks companies are biased and taking down things that don’t support their own values and that their values are always anti-conservative. He thinks if they repealed Section 230, there would be more conservative stuff on these platforms, but research shows it would actually be the opposite, because companies would protect themselves by not allowing anything that could get them sued. These platforms would decide they’re not in the free speech business anymore and shut down the opportunity for people to get their views amplified.

Missouri Senator Josh Hawley lost his book deal with Simon & Schuster after he challenged the validity of the Electoral College. Is that an infringement on his First Amendment rights?

If it were the government suppressing it, absolutely. But this is just a particular publisher saying they don’t want to support this guy anymore. If the government were to come in and say that Simon & Schuster has to publish Hawley’s book because they previously said they were going to, that would be a First Amendment violation, because the First Amendment also protects your right not to be forced to convey a message that you don’t want to convey. But I’m sure book contracts are written in a way that they have the right to revoke the deal if they want to.


Note: This is the second story in the series Constitution in Crisis, about constitutional topics currently in the news. The series’ third installment, focused on sedition, will be published Tuesday.