Part 1: Platform vs. Publisher Debate
In wake of Twitter’s suspension and outright banning of individuals from their platform such as Alex Jones, Michael Knowles and Laura Loomer, the ongoing discussion has ignited as to whether Twitter and other social media companies have a legal right to take such action against its users.
The classic free speech argument that has been made in the past normally falls short. Since Twitter and the other social media companies are privately owned, there is no obligation for them to allow any individual to speak. In the same way a private baker has no obligation to serve a customer and how you have no obligation to allow a stranger into your house to speak, Twitter has no obligation to allow you use their platform.
However, over the past couple months, a new argument has been proposed as to why these privately owned social media companies may in fact have a legal obligation to allow all on their platform. And it isn’t because of the First Amendment.
This new argument is the Publisher vs. Platform debate. As an example, AT&T cannot be legally held liable for content that is said or used over its platform because it classifies itself as a “communication company” – they just enable communication; they aren’t responsible for the information communicated.
In a similar way, Twitter and Facebook “insist though that legally they are communications companies – just conduits for information who cannot be held liable for that content – in the same way BT cannot be sued over obscene phone calls.” (The Guardian) This type of company would be called a Platform. It is simply a place where all information can be shared and Twitter isn’t legally responsible for the information that is shared.
The other company type would be a Publisher: a company that chooses what content is to be displayed. Think of a book publishing company, or even a newspaper or news website. Everyone can’t write an article for the New York Times and everyone can’t have their article published in the local newspaper. This company chooses what content is to be displayed and therefore can be held legally responsible for the content on their website, such as unlicensed photos or illegal activity.
The problem is, Twitter classifies itself as a Platform, but then is picking and choosing who they want sharing the information and what information is shared on their platform. They get the legal amnesty from its Platform classification, but then receives the benefits of a Publisher without being held legally responsible. A lot of people think this is an issue – especially for many who classify themselves as conservatives, or at least politically right of center on Twitter. They feel this way because conservative voices are being shut out on Twitter. There are bountiful cases where Twitter has discriminated against conservatives and banned them from their site.
By making Twitter classify itself as a Publisher, it would open up the platform to lawsuits from every content creator whose content was published on Twitter without proper license. Every photo, video, song or article that was published without proper permission will now be Twitter’s responsibility.
The proposal is that Twitter has to either properly classify themselves as a Platform but not be able to receive the benefits of picking and choosing who can be on their site (hence the stopping of the banning of conservative accounts), or become a Publisher and subject themselves to lawsuits from unlicensed content on its site.
Part 2: Why This Thinking is Flawed
My problem with the conservatives who are calling for Twitter to be forced to stop banning specific conservative accounts is the logic that would follow if we went down that road.
Conservatives argue that if Twitter was to classify itself as a Platform properly, they would be unable to remove anyone or anything from its site because Twitter would simply be a “means of communication.” Twitter would not hold any responsibility for anything posted, and as soon as they removed a user or something that was posted, they would then be classified as a Publisher and open them to lawsuits.
Here’s my problem with that logic – that would basically make Twitter’s Terms of Service irrelevant, for if Twitter took any action to remove content on their site that violated their Terms of Service or the law, they would be classified as a Publisher.
So if child pornography was posted to the site Twitter could do nothing about it.
If videos of people’s heads being cut off were posted to Twitter, Twitter could do nothing about it.
If plans to blow up the White House, or how to drug girls at parties, or doxing people by publishing all of their private information was posted to the site, Twitter would have no power to do anything about it, for if they did, they would be a Publisher.
By following this logic, one is essentially calling for the complete abolition of Twitter’s Terms of Service.
This line of thought will remove all public thought platforms (such as Twitter and Facebook) from being the appealing platform they are now. It would be bogged down by illegal activity and intolerable posts. Maybe one believes that Twitter would not turn to this dark shadowlands of evil if there was no terms of service, but all one has to do is look at other online forums where there are no terms.
Conservatives who call for these measures are angry and I understand why. They feel (and I believe they are correct) that they are being targeted by Twitter because Twitter disagrees with their opinions. That’s frustrating. However, these are the terms that everyone agrees to when they sign up for Twitter. These are the rules they must play by.
The opposing solution would be to classify Twitter as a Publisher. This would allow Twitter to enforce their Terms of Service as well as the law. However, this would also open them up to lawsuits from unlicensed content.
I believe the latter solution is the better one, though I am not fully convinced that it is a simple binary question of “Publisher or Platform? Pick one.” Twitter being able to enforce its Terms of Service is essential to its life. And if its Terms of Service says that posting conservative opinions is not allowed, then so be it.
If Twitter’s Terms say that being a conservative breaks its terms, then so be it.
Even if Twitter’s Terms say that “Only good opinions will be tolerate,” and CEO of Twitter Jack Dorsey himself believes that conservative opinions are bad and won’t be tolerated, then who are you to say he is wrong? Who are you to tell him he cannot do as he pleases and enforce his terms as he pleases on his own creation?
This solution does not make me happy, but I do believe it is the morally correct solution. I wish that Twitter didn’t have a bias. I wish that they were able to operate as a Platform while enforcing its Terms of Service. I also wish that conservatives would stop trying to use the federal government as a battering ram against private companies.
Raise your hand if you agree it’s time for @realDonaldTrump to order the FCC to investigate the Social Media Giants
— Jack Posobiec 🇺🇸 (@JackPosobiec) November 30, 2018
That is not, and never will be a conservative position.
I get it. You’re sick of being silenced, muted and banned. But government regulation is not the answer.
Below is a graphic to better illustrate my position on Twitter being a Publisher vs. Platform