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Overthrow of democracy

| Monday, March 1, 2021

Early this year, Facebook and Twitter shut down accounts associated with social media bloggers related to the government and the ruling party in Uganda. This followed the indefinite suspension of President Trump’s accounts on both platforms in the wake of the siege on Capitol Hill. Whereas President Trump had no recourse, the President of Uganda retaliated by ordering access to both Facebook and Twitter be blocked in Uganda, accusing them of being unfair in deciding who uses their platforms. Access to Twitter has since been restored, although Facebook remains blocked such that one needs a Virtual Private Network connection to access it in Uganda. Recently, Facebook has been involved in a brawl with the Australian government and, even more recently, with the military junta that usurped power in Myanmar. Once again, these incidents have brought to the fore the debate on the power of big tech and its implications for democracy around the world. Whereas I agree with the regulation of free speech on social media sites for its potential threats to both life and public order, I take issue with the excessive power of regulation that big tech companies currently wield.

To begin, we must acknowledge that whereas free speech is crucial to democracy, it is not an absolute right. In my view, to the extent that speech can endanger life and threaten public order, it ought to be regulated. In other words, people should be free to say whatever they want, provided they don’t breach public order or endanger the lives of others. Showing how free speech can endanger life or breach public order is not for me to show here. To this extent, therefore, it can be argued that Facebook and Twitter both acted in public interest by taking down accounts associated with activity likely to breach public order or endanger the lives of others.

However, while the motive of both Twitter and Facebook can be said to be good, their methods were wrong. By unilaterally regulating free speech in accordance with their Terms of Use — or “community standards,” as it were — not only have social media companies, in particular Facebook and Twitter, illegally abrogated themselves the right of regulating free speech in society, they also have threatened to undermine the power of duly elected governments around the world, that is to say, the legitimate representatives of the people.

Indeed, free speech is so crucial to democracy that its regulation cannot be left to private interests. As commercial firms, Facebook and Twitter are essentially profit-driven entities and, thus, profit always constitutes their primary consideration in matters pertaining to how they run their platforms, including matters relating to free speech. In other words, their primary consideration is not the public interest, and therefore it is dangerous to apportion them regulatory power. Free speech being such a controversial but essential matter to a democracy, its regulation must be done by citizens themselves through their elected representatives. This is not to say that elected representatives do not sometimes have perverse interests that can conflict with the public good. However, given that they exist to protect the public good, the choice of regulator between them and private entities cannot be clearer.

Moreover, public regulation of free speech gives such regulation the force of the law, ensuring that there is a standard reference point for settling disputes that might arise. In other words, restrictions on free speech must have a constitutional basis. That is to say, either the constitution, as the contractual agreement between associated peoples, ought to provide guidance on the matter or the actors who move to regulate free speech must draw their power from the constitution. Yet, if all these of different platforms have their own “community standards,” arbitration becomes complicated. Whereas the motives of Twitter and Facebook can be in public interest in some cases, their methods are wrong in as far as they do not hold any public office to preside over the regulation of such a sensitive matter, nor do their actions have a basis in the constitution of the places where they operate.

Some people have invoked some notion of property rights arguing that as private platforms, Facebook and Twitter have a right to do as they wish on their platforms. The issue is only that Facebook and Twitter are not purely private entities. These platforms are essentially virtual communities. In other words, they take physical society and refashion it in virtual ways. Whereas they have ownership of the infrastructure to make this possible, we ought not to confuse ownership of that machinery with an absolute authority to introduce private standards by which human beings as legal persons are to interact on these platforms. Neither should our consent to the community standards of these platforms be taken to mean a surrender of our rights and power as citizens of a democratic society, or any other kind of political community for that matter. These rights and power are prior to Facebook and Twitter and under no circumstances are they to be overridden, except in the courts of law on the basis of the constitution as the arbiter of social conflict.

Indeed, it goes without saying that even these platforms, by their very existence within a political community with defined rules, are subject to the law of the land and under no circumstance — not even the claims to being a private entity — can they arrogate themselves power to regulate public discourse. This is a power which they do not have as its basis is only in the constitution and not in the modus operandi of some self-serving corporation. This is all the more important if we consider how crucial (regulation of) free speech is to a democratic society and how the usurpation of those powers undermines the people’s validly elected and legitimate representatives.

In sum, therefore, there is no legal basis for Facebook and Twitter to arrogate themselves power to regulate as sensitive a matter to democracy as free speech; Facebook and Twitter neither hold public office, nor do they have a basis in the constitution. Appointing themselves as the chief priests of “truth” and the arbiters of political contests, as in Uganda and Myanmar, is just the hubris of undue excessive power arising from private interests being left to their own devices.

Trevor Lwere is a junior at Notre Dame majoring in Economics, with a PPE minor. He hails from Kampala, Uganda and lives off campus. He is a dee-jay in his other life and can be reached at [email protected]

The views expressed in this column are those of the author and not necessarily those of The Observer.

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