Former ACLU Lawyer Says 'Of Course' Twitter's Ban on Trump Is Censorship

The free-speech debate surrounding the recent suspension of President Donald Trump's social media accounts is warranted, according to David Goldberger, a former lawyer with the American Civil Liberties Union.

"Of course it's censorship, but it's not government censorship and that's the dilemma," Goldberger told Newsweek Tuesday. "The question is whether these private platforms are the same as newspapers refusing to run political ads, or whether it's the same as the government saying you can't talk."

Swift action from big tech in the wake of last week's storming of the U.S. Capitol has raised concerns over censorship and questions about whether these bans violate the First Amendment.

Parler, which has pitched itself as a free-speech alternative to Twitter, sounded more alarm bells Monday after being booted off Amazon's web hosting services, effectively taking the platform offline.

Goldberger, who controversially represented a neo-Nazi group on behalf of the ACLU in the 1970s, said that while the silencing of the president is clear censorship, there's no First Amendment violation in the moves made by Twitter and Facebook.

"There is no state action, so the government is not involved at this point," he said.

While the suspensions by social media giants abridges the freedom of speech of some of its users, the First Amendment only prohibits the government from doing so. Because these platforms are privately run, constitutional arguments fall flat.

However, even if the First Amendment did apply to these networks, the legal test established in Brandenburg v. Ohio, which says speech can be prosecuted if it incites or produces "imminent lawless action," would allow for the removal of the tweets in question.

"Frankly, I don't have any difficulty with the notion that you're being cut off because you're inciting violence," Goldberger said. "That would be consistent with the First Amendment."

"If [the rioters] had gone in there and done what they were inclined to do, they could have killed the vice president and the speaker of the House, who are the next in line of succession," he continued. "To deal with this, to say you no longer have access to our platform because you're inciting violence, is certainly within the terms of use of the platform."

President Donald Trump turns to reporters as he exits the White House on January 12. Several social media platforms have recently suspended Trump's accounts in response to the U.S. Capitol riot. Drew Angerer/Getty

But while Goldberger thinks there's a safety argument to be made for banning Trump until President-elect Joe Biden's inauguration on January 20, he called a permanent ban "ridiculous."

"I think the permanent cutoff of the president by Twitter as a matter of policy is wrong. I can see a period of quiet until the inauguration because of all the apparent planning of violent activity in the 50 states and D.C., but a permanent denial of access to the platform? That's ridiculous," he said.

"There's going to have to be some mechanism designed for fair access and a way to impose restrictions on access in cases of abuses of the platform," he added.

The former ACLU lawyer said he expects there will be a modification of Section 230, a congressional legislation passed in the early years of the internet that provides legal immunity for an "interactive computer service" from being held accountable for user-generated content.

"Right now, the internet falls into a realm that American law simply hasn't come to terms with," Goldberger explained. "My own feeling is that I surely would not want to see the platforms in a position where they can't decide for themselves what they want on those platforms. They're privately run. I don't think that the government can tell them what they can do and what they can't do."

He noted that the internet presents a particular challenge when it comes to prosecuting inciting violence due to the anonymity it grants users.

"One of the absolutely mind-boggling dimensions of this is that, typically, you know who the speaker is because they're out in public, engaged in their advocacy, and you're dealing with urging of people to do specific things, like overthrow the government by force," he said.

"In these social networks situations, one of the problems has been the anonymity of the speakers combined with the fact that a lot of what they say is false and false speech is not protected by the First Amendment," he added.

Trump, along with his allies and supporters, have continually pushed unsubstantiated claims that the 2020 presidential election was stolen via widespread voter fraud.

Because the First Amendment is designed in pursuit of truth, it does not always protect individuals who engage in slander or libel, especially if they knowingly publish false information or do so "with reckless disregard for the truth."

In an effort to clamp down on the spread of misinformation during the election cycle, Twitter and Facebook made unprecedented decisions to flag the president's posts that disputed the election results and encouraged supporters to "stop the steal."

Such rallying cries have been blamed for the insurrection that took place during the joint session of Congress last week, which resulted in five deaths and a lockdown of the U.S. Capitol building.

Capitol Riot
A large group of pro-Trump protesters raise signs and flags on the grounds of the Capitol Building on January 6 in Washington, D.C. The president's supporters have raised concerns that social media bans on President Donald Trump and the removal of Parler from Amazon's web hosting services infringes on the freedom of speech. Jon Cherry/Stringer

Goldberger said that although Trump's rhetoric played a role in the day's events, the president is "gifted at saying what he wants his supporters to hear without putting it in explicit language and letting them read between the lines, and that's just what he did."

"It's hard to say there's a criminal violation when they lack a specific intent," he said.

"At this point, I have my doubts that the speakers—Giuliani, Trump, [Trump's] son—can be prosecuted on incitement to riot under the law," he added.

Although Goldberger believes it may be difficult to bring a case against the elected officials, like Trump and Representative Mo Brooks, who spoke at the "Stop the Steal" rally that preceded the riot, he said federal prosecutors will have no difficulty prosecuting those at the scene.

"What I do think is going to happen is they're going to bring rioting charges and the like—the rioting charges are really going to get intense for the people that went into the building, particularly those identified as leaders," he said. "I think they're going to throw the book at them."

In a Tuesday press conference, U.S. attorney for the District of Columbia, Michael Sherwin, announced that more than 70 people tied to the Capitol riot had been charged with crimes and that he expected that number to rise into the hundreds.

"We're looking at significant felony cases tied to sedition and conspiracy," Sherwin said.