Can Twitter ban Republicans? And other social media censorship questions...

Can social media platforms discriminate based on content or politics? We sit down with law professor and former ACLU president Nadine Strossen to explore the limitations of First Amendment protections online and the role of the government in online censorship. Social media has become an essential medium through which people communicate and share ideas. The Supreme Court in a recent opinion acknowledged the importance of social media as the modern-day marketplace of ideas: “While in the past there may have been difficulty in identifying the most important places (in a spatial sense) for the exchange of views, today the answer is clear. It is cyberspace—the ‘vast democratic forums of the Internet’ in general, and social media in particular.” Packingham v. North Carolina (2017). But how does free speech survive in an era when public speech is widely controlled by private companies? While the First Amendment protects against government intrusions in free speech, social media companies are free to censor without constitutional constraints. ► http://www.talksonlaw.com for the full interview and more legal explainers and interviews with the titans of law. ► Patreon: TalksOnLaw is on Patreon! You can support us directly by signing up at: http://www.patreon.com/talksonlaw ► Facebook: http://www.facebook.com/talksonlaw ► Instagram: http://www.instagram.com/talksonlaw ► Twitter: http://www.twitter.com/talksonlaw ____________________ TRANSCRIPT JC (Joel Cohen): Let's say one of the platforms decided to discriminate based on political viewpoint. Let's say Twitter banned Trump and mainstream Republicans from the platform. What tools if any could the government take to regulate Twitter? NS (Nadine Strossen): None at all. It has a complete right to do that. It has its own free speech right and I think the punishment would come in the so-called marketplace of ideas where you would have no doubt protests, no doubt boycotts, which would of advertisers, as well, as other users of the platform which would put enormous pressure on them. Just the way we see with conventional media when people don't like what a certain journalist has said or done that advertisers pull out and put a lot of pressure. JC: So, allowing the market to act. NS: Yes, the economic marketplace linked to the marketplace of ideas. JC: What about another extreme? We've seen numerous, far too many acts of violence in the United States in recent years, both school shootings or suicides. If there's a platform that's being seen as promulgating violence is that somewhere where the government can come in and act? NS: Even advocating violence is protected speech. It is only intentional incitement of imminent violence that can be punished or prevented and then only if that violence is likely to happen imminently. It's virtually impossible to satisfy that standard on any kind of mass media. So there have been many lawsuits that have been brought against all kinds of media, whether television or movies or music videos, on and on, have been sued for allegedly triggering a particular school shooting or a particular copycat crime. And there is evidence that particular people were persuaded to commit a crime by something they read or saw. Famous cases of people who read "Crime and Punishment," a classic novel and went out and reenacted it. So, rightly the courts have said… JC: Dostoyevsky wasn't responsible. NS: Exactly. Two really famous examples: the Bible and the Koran have been invoked by many criminals including those who have committed mass murders. And I don't think anybody would say, well let's blame, even if we could get jurisdiction over the person who, or entity, who wrote the Bible (I'm joking here) or the Quran, that the responsibility is on the person who actually commits the violent act.