S Ovwata Onojieruo
S Ovwata Onojieruo

Trump’s Media ban, and its incoming Legal challenge

A short while ago, what seemed more like a forgotten quest was suddenly brought back to the spotlight, viz; former President Donald Trump heads to the court in a bid to challenge what has been called in some circles ‘a presumed censorship,’ by big tech. Obviously, right-wingers see this as a long-overdue process, a commentator opined that “If the plaintiff could prove that they were harmed by the practices or actions of the company and can show that those companies are selective in those actions, the suit may prevail.” But we must quickly note, that what’s at stake here is firstly ‘An individual right to free speech,’ versus a ‘Company’s right to independent policy’ to which two important questions must be asked. Firstly, does an individual have a right to protected speech even when such speech is deemed as containing epithets that may upset known governmental processes? secondly, does a private company actually have the right to deny services to an individual based on its own private policy?

We must be quick to set a difference between this debate, and that which borders on the religious liberty clause to which some folks may bring to bear with a perspective that if religious organizations have a right to deny services to certain individuals based on their religious beliefs, then companies also should possess same privileges of denying services to others based on the company’s own policy. While this may seem plausible, we must quickly note that ‘company policy’ are private policies which are not protected by the religious liberty clause thus upon such standpoint, it fails to meet a standard worthy of being categorized as similar to that upon which the religious liberty clause is built. Rather the more proper question to be asked here remains; At what point can a company policy be said to supersede individual right to free speech? (as Trump’s case portends).

Now note that the big tech giants are not registered as a News Media agency, which could have given them some form of legal leeway to reject publications based on its own media policy; for example, no one has a legal right to sue a newspaper for refusing to publish an article, the right to a free press is protected by the Press agency’s right to determine what exactly they permit on their platform, as they could legally be sued over certain contents on the grounds of defamation (in private instances), or even a breach of Privacy (in the case of corporate organizations). Thus on this pedestal, News agencies (the Press) partly bears responsibility not only for the factuality and accuracy of the news which they report, but also for whatever kind of opinion they permit to be filtered through their medium.

But can this same responsibility as outlined above be extended to the social media? The obvious answer is a resounding No!

Here’s why; Social media Companies are registered under a license which gives them leverage to create a platform for individual interactions and communication, obviously there is no legal clause upon which a social media company can be sued for the opinion of it’s users. This means that users of social media platforms are directly responsible for what they post. Thus even if any post bear threatening contents, the social media platforms also do not owe it as a legal duty to report any such content; as they would be infringing on the Privacy of the ‘Poster,’ (for messages circulated within a closed circle). By this, we infer that there exist no legal imperative binding on social media Companies to divulge information posted on its platform either to Government or any other agency, as that exactly is a breach on an individual right to Privacy.

So where exactly do a power of censorship come to play? It seems to be tilted more as a moral than a legal imperative. Meaning on Moral grounds, Social media companies ought to have a system on ground which regulates the kind of information flowing through their platform, on what grounds ‘regulating’ must be separated from ‘monitoring’. But if Social media companies have such moral imperative do that automatically translate into being a legal imperative too, and one that may include some privilege of censorship?¬† From a legal perspective it ought to be another resounding No! But from a Political perspective this may be dicey, owing to the social responsibility Ideology which could be interwoven into the notion that responsibility for security isn’t a government responsibility alone but one which involves individual, and corporate or collective action. Upon such grounds however, the action to be taken ought to be ‘reporting such threats to the appropriate legal authorities,’ if it were an obvious threat to individual liberty or social existence. On similar grounds they could be tasked with supporting governmental investigations by releasing as much information on the individual as they may possess, although this again may be seen in some quarters as a breach on an individual’s right to Privacy. However when Privacy and public good tend to be at loggerheads, the good of the Public should prevail.

Now from these above mentioned perspectives, one can obviously infer that Social media companies have no legal, nor moral, nor political leverage to ‘Censor’ an individual for exercising his right to Freedom of speech via their platform, of which we have noted is a ‘communication as opposed to a purely informatory Media platform.’ So with what narrative can these companies build their case for a right to censorship? Firstly they may argue against the term censorship, and rather prefer to tag it under ‘maintaining and regulating posts which may not be in line with the laid down company policy,’ to which the question would again arise who lays down or determine such laid down policy? In fact a more fundamental question would be “At what point do a company’s rule prevail over an individual’s right to exercise his freedom of speech? One may not necessarily argue that such company may posses a right to input some reasonable punitive measure on offenders, but ‘censorship’ can never be tagged as an option. Although this assertion again is problematic. But our inference here, can be based on the permutation that since Social media companies have no authority as that of the State, since firstly they are private companies, and their policies are purely private, meaning; the State has no authority to determine what is written in their policy books, whenever their policy are deemed as a clash with the fundamental right of an individual (which in this case the right to Freedom of speech is at stake), then the individual fundamental right should prevail. Upon this bedrock, the company must respect such individual right and not limit it via the excuse of a company’s policy.

Secondly the charge of censorship is a huge one, which not only affects the right to Freedom of speech, but also the right to personal liberty, as well as the right to Freedom from discrimination. Thus if Trump’s ban can be legally argued as being a ‘case of censorship,’ then the Social media companies must be asked by the court, In what way, and under what legal grounds, did they deem themselves empowered to deny fundamental services to an individual which borders on his human right?

What is at stake could be tied to a case of an abuse to ‘individual fundamental right’ from the privileged position of having certain form of control over the medium through which such right could be expressed. Already Twitter asserted during the company’s fallout with the Nigerian Government that “Access to the free and open Internet is an essential human right in modern society.” If on their own terms they accept (at least as Twitter has), that the social media is a part of an individual’s fundamental human right, in what way do they possess the hegemony to deprive a person from expressing that right? (As Trump’s case obviously portends), or do we group the censorship of Donald Trump under a whole different framework entirely?¬† Would that actually be sensible? These are the questions to which they must answer, and obviously everyone has a right to be heard.

About the Author
S Ovwata Onojieruo is a Theologian and Political scientist, with major interest in Political theory, Middle-east politics (especially as it affects the Jewish state), and international relations. He currently works as an High school tutor/debate coach, and can be reached on twitter @OvwataS
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