“Twitter is completely stifling free speech, and I, as President, won’t allow it to happen!” Donald Trump, 27 May 2020 – published on Twitter (of course).
Who has the right, to do what, on Twitter? Donald Trump’s falling out with Twitter, after Twitter’s censuring of certain tweets, has inspired accusations of bias and misbehaviour on all sides, none of which is likely to convince anyone not already convinced. But if we step outside the specific debate around Twitter’s current and future legal immunity, perhaps we can find at least one principle that might gain broad agreement: that no person has the right to do that which would prevent another person from being a person at all. And this suggests that Twitter has every right to censure Trump – and that Trump may have little right to act to censure Twitter in return.
Section 230 and unlikely allies
Section 230 of the US Communications Decency Act provides third-party hosting platforms such as Twitter and Facebook with broad legal immunity for content posted on their site, provided that they are not involved in developing that content or publishing material that violates specific laws. Section 230 also provides legal immunity for choices Twitter and others make as ‘Good Samaritans’ to restrict access to ‘objectionable’ material.
Several on the Left (loosely construed) have campaigned for Twitter to do more to prevent hateful, harassing, and false information from remaining on their site. Some have gone further, arguing that section 230 ought to be entirely revoked so that sites such as Twitter can no longer claim immunity for not acting to remove harmful content.
But it is the Right and Donald Trump who are currently amongst the most prominent in arguing that platforms such as Twitter, ought to have their right to legal immunity removed or restricted. And this is precisely because Twitter are now doing more to fact-check, place warning labels on and even remove problematic content published by Donald Trump and other world leaders.
Leaving the oddness of these bedfellows aside, who is aiming for the right outcome in section 230 repeal? Should the law be doing more to force companies like Twitter to moderate user content, or should it be doing more to force them to stop intervening in content?
The answer is neither – at least, not directly. The law should protect personhood rights, for corporate and individual persons alike. And what that means in terms of specific action will not be a blanket answer in either direction.
The idea that corporations are persons in law is widespread. The UK holds to a ‘directing-mind’ principle in which corporate personhood is reducible to that of senior individuals. The Netherlands treat corporations as full legal persons prosecutable for any crime that a human person might be. And in the US, corporate persons are treated as having equal rights with all other persons, as a constitutional right.
It would be easy to argue that corporations are not real persons. Established by and for human persons, corporate bodies exist purely to benefit at least some collection of human persons – the board, the shareholders, the customers, the beneficiaries of the charity etc. Global giants like Twitter may have been created for those who profit from them financially, but they are successful precisely because a wider audience finds value in the service they provide.
Granting them a personhood status in the legal or moral sphere and then additionally granting them rights against human persons might seem simply perverse.
But to provide benefits to human persons, we need corporations to bear duties. We have seen what goes wrong when we fail to have a position in law which allows us to find a responsible corporate party when no individual human party can be found responsible, or has the power to provide recompense. It is therefore, at the very least, in human persons’ best interests to treat corporate persons as if they were persons in law and the social sphere, fit to bear duties, as List and Pettit suggest.
Personhood as a source of rights
And if corporations are persons with duties, it is natural to believe that they have rights. Further, those rights ought not to be denied on an ad hoc basis, depending on what human persons want at a given time. The fact that we create persons does not ordinarily allow us to determine the scope of their rights. For nightmares about the impact of doing this, watch the ‘White Christmas’ episode of Black Mirror, or read my analysis of the treatment of an artificial person in it.
But more importantly: it is dangerous for human persons, to allow ‘us’ to decide on the extent of corporate person rights on an ad hoc basis. Brexit, the rise of populism in Europe and the US, and just the long history of democratic partisan voting in most states shows that human persons do not all agree on what ‘we’ should do at all.
Many might be happy to call for restrictions on the rights of corporate persons when we believe we are on the side of ‘good’ and they are on the side of ‘bad’ – homophobic bakers, businesses trying to rip off their workforce, Social media platforms allowing harmful speech – but what happens when we disagree over who is good and who is bad?
We are finding out right now in the unofficial case of Twitter vs Donald Trump. And not everyone is happy to allow the human person Trump to decide what rights the corporate person Twitter ought to have.
A source of rights for all persons
Instead, we should be identifying what rights all persons have. Many attempts to differentiate human and corporate person rights rely on ad hoc or contested value claims.
But one thing it is hard to argue against in terms of rights is that once we have admitted any party, individual or corporate into the sphere of persons, and we expect or want them to perform as a person in the public sphere, we need to accept that they have whatever rights are needed to fulfil that role as a person in the public sphere.
Trump is so powerful that it would take the combined effort of all social and traditional media platforms, internationally, to prevent him from performing as a person in the public sphere. And maybe not even then: he’s the President of the United States. With that backdrop, it is hard to claim that his personhood is at risk in being fact-checked or censured by Twitter for publishing false information.
But a Twitter corporate person constrained by the constant fear of legal action for missing a partisan tweet, or else handcuffed against monitoring any content at all, will not be a Twitter that can perform as a person in the public sphere. Nor, perhaps, can it fulfil the duties that we ordinary persons need it to fulfil to preserve our personhood status in the public sphere – through removing hate speech that silences, allowing us to express our views alongside other persons, and protecting us from false information that would restrict us in performing our epistemic role as persons in a democracy.
Corporate agents are set up for us. But only by taking seriously their status as persons as a source of rights, can they effectively work for us. When it comes to Twitter vs Trump, at least for now, this means protecting the rights of Twitter.