Yesterday, Laura Loomer handcuffed herself to the door of Twitter’s New York headquarters while donning a Star of David in protest of the company’s permanent ban of her account. For a woman who has campaigned for and cavorted with white supremacists, it’s rather remarkable that yesterday’s spectacle may have been her most cringe-inducing moment yet.
But between Loomer’s sad show and the recent, unexplained but brief Twitter ban placed on conservative commentator Jesse Kelly’s account, Twitter faces an existential crisis: Is it a platform or is it a publisher?
Twitter is a private company. It is not bound in any way to abiding by the principles of free speech or protecting speech covered by the First Amendment. But as it increasingly engages in inconsistent, seemingly politically motivated bans and suspensions, the company is slowly wading away from being a platform with a fixed set of rules and heading toward taking on the legal liabilities of being a publisher.
Social media companies are exempt from the enforcement of libel laws thanks to the Communications Decency Act. Because social media platforms are meant to be open forums with extremely rigid, limited, and consistent rules to moderate “offensive” content, they aren’t liable for what users post on their sites.
However, as Twitter’s staff begin to act like editors more than technological facillitators, they run the risk of losing the legal protection of neutrality. They face the same risks that newspapers and traditional media companies take when they publish reader-submitted material.
Loomer has previously tweeted abhorrent things that could reasonably fall under the category of “offensive” harassment. But of all of her thousands of nasty tweets, Twitter chose a fairly innocuous one as an excuse to ban her. To all appearances, the decision to impose the ban was purely political.
Twitter banned Jesse Kelly, who, to my knowledge, never engaged in hate speech, harassment, threats, or even profanity, without any explanation or warning at all.
From a moral perspective, much of the griping about Twitter has been wholly unnecessary. Far more users get away with doxxing and death threats than those who get unfairly banned. Playing the victim card with regards to a private social media company is somewhat ridiculous. But when a site takes down popular political accounts that engage in no malicious behavior while leaving literal neo-Nazis’ accounts live, it does invite the question of legal neutrality.
Twitter has every right to design its own rules. Congress certainly should not regulate social media platforms as utilities. But if it becomes an ideologically motivated curator rather than a neutral arbiter of content, it endangers the legal protections it currently enjoys.
