Twitter’s ban on Kanye West violates its own policies

Twitter’s decision to ban Kanye West raises interesting questions about freedom of speech. Since both Twitter and West are private individuals, the First Amendment is not directly affected, but its spirit cannot be ignored.

Let’s start with an undeniable fact: Ye (formerly Kanye West) is a virulent anti-Semite who has called for “death con3” against the Jewish people. He has also made other anti-Semitic statements.

The image, which earned him a ban, juxtaposes the Star of David, a symbol of Judaism for millennia, with the Nazi swastika, the symbol of Hitler’s murder of 6 million Jews. West claims that this juxtaposition is a sign of love. No, it’s a sign of hatred.

But hate speech is protected under the First Amendment. It also appears to be allowed by Elon Musk’s new anti-censorship policy on Twitter. These guidelines do not allow censorship based on insults or dissent, but prohibit users from inciting violence.

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Twitter headquarters is located at the intersection of Market Street and 10th Street in San Francisco, California on November 4th.
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So the question is whether or not West is inciting violence in violation of Twitter standards. I don’t think he is. Hate speech has a special meaning. It generally requires verbal communication warning of imminent violence. It rarely covers the written word, and I am not aware of any instance where it covers symbols such as the swastika imposed on the Star of David.

So if Twitter had been the government, it would be unconstitutional to ban the swastika and the Jewish star symbol, despicable and hateful as that is. However, because Twitter isn’t the government, it has significant leeway in deciding who should have access to its platform. There’s also leeway as to what constitutes incitement, but I think Musk is wrong in classifying the sickening juxtaposition as incitement.

Aside from the specific facts of this troubling action and reaction, Musk’s decision brings to the surface a simmering argument over the role of big social media companies like Twitter, Facebook, and YouTube in regulating the offensive and sometimes dangerous communications.

There are those who argue that these media giants should be considered quasi-state and therefore subject to some limitations on their ability to censor. They compare them to “general modes of transport” like trains and buses, which are privately owned but subject to government regulation. But these common carriers are not involved in language propagation.

A closer analogy would be the telegraph and telephone companies. But even these differ from modern media. Telephone and telegraph involve private communications between individuals. Social media encompasses public communications accessed by millions of viewers and readers.

Any attempt by the government to regulate social media would directly involve the First Amendment. These private companies have their own First Amendment rights to decide what to publish and what to censor. When the Miami Herald refused to publish a letter to the editor from a public figure who had been wrongly criticized, the Supreme Court ruled that the First Amendment barred the government from requiring a newspaper to publish a letter to the editor. Again, newspapers, which were widely circulated when our Bill of Rights was ratified, differ significantly from current social media.

However, the current social media entities benefit from government measures. Congress passed legislation that protects social media from various legal obligations that newspapers are subject to. This makes sense because articles posted to social media are automatically and immediately available. The social media companies generally don’t have the ability to prevent posting, although they can remove it once they find out about it. Newspapers, on the other hand, do not publish anything unless the publisher approves it in advance.

The fact that social media has been given special privileges by law sets it apart from newspapers and even traditional TV channels. But these privileges do not appear to be sufficient to empower the government to impose censorship.

The issues raised by Twitter’s decision to ban Kanye West are among the most complex and difficult when it comes to freedom of expression. There is no perfect answer to the question of whether the giant social media companies that control so much communication today should be subject to government regulation.

It is impossible for an originalist to know with certainty what Jefferson and Madison would have said about media outlets’ claims that their First Amendment rights entitle them to censor speech. Even the advocates of a living constitution cannot give a single right answer to this question. It is an ongoing work that may ultimately be affected by how these media companies use their power to decide what gets communicated and what gets banned.

Elon Musk has promised Twitter a more permissive approach than Facebook and YouTube. But he too has felt the need to censor hate speech, claiming it is incitement. While I despise West’s juxtaposition of the Star of David and the Swastika, I don’t think it should have been censored by Twitter.

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The views expressed in this article are the author’s own. Twitter’s ban on Kanye West violates its own policies

Rick Schindler

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