By Madeleine Hale

On Independence Day this year, Donald Trump’s Team launched GETTR, an alternative social media platform, and Team Trump’s answer to mainstream platforms Facebook and Twitter, which both censored and de-platformed the former US President in 2020.

The platform, founded by former advisor to Donald Trump, Jason Miller, advertises itself as a “marketplace of ideas” that allows “anyone to express their opinion freely”. It has been promoted as an island of free speech in a sea of liberal social media censorship.

Within only a few weeks of operation however, the platform already appears to be failing. Without content moderation, the platform has descended into a cesspool of spam, hackers, MAGA merchandise, fake accounts, pornography and lewd sonic hedgehog memes. Although Trump himself has so far refrained from officially endorsing the platform, many accounts have been set up impersonating the former President. Even the Australian political landscape is not immune, with apparently fake accounts appearing on GETTR for politicians Peter Dutton and Pauline Hanson.    

GETTR administrators are now furiously moderating content to regain control of the platform. The social media site without censorship – ironically – is now censoring its own users. The free speech utopia is not such a utopia after all.

The recent experience of GETTR gives rise to important considerations about free speech principles, the right to freedom of opinion and expression, and the limitations of free speech in a democratic society.      

Free Speech and the Right to Freedom of Opinion and Expression

In political theory, free speech is generally conceived of as a ‘negative right’ – that is to say, the government cannot abridge the free expression of its citizens. Nevertheless, some limitations of free speech may be justifiable in certain circumstances.

For example, seminal political theorist John Stuart Mill developed the ‘harm principle’. This principle allows for the restriction of free speech where the speech itself is likely to cause imminent harm to another person. Other limitations also apply to free speech, however, these vary across different jurisdictions.

Free speech protections under international human rights law also provide that limitations are necessary in certain circumstances. For example, free speech is recognised and protected as the right to freedom of opinion and expression in various human rights law instruments including the Universal Declaration of Human Rights and its legally binding counterpart, the International Covenant on Civil and Political Rights (ICCPR).      

Again, the right, as it exists within these instruments, is not absolute, and may be subject to certain limitations. For example, Article 19(3) of the ICCPR states that freedom of expression may be subject to restrictions, only as provided by law and necessary for the ‘respect of the rights or reputations of others’ or the protection of national security, or public order, health or morals. Article 20 further adds that freedom of expression does not protect vilifying speech of individuals on the grounds of their race, religion or nationality.

At a domestic level, the approaches taken by various jurisdictions vary. In the US, the existence of the First Amendment and the jurisprudence that has developed around it has allowed for the development of broad protections for speech, which allow for the spread of hate speech and other forms of harmful content.

Free speech on social media must have limits    

This unfortunate episode in GETTR’s origin story shows us that the utopian ideal of a social media platform completely free from censorship is in fact a dystopian reality. Entirely unbridled free speech cannot work in this context. Indeed when free speech principles were strictly applied in the microcosm of GETTR, we saw a clear rise in spam, disinformation, fake accounts, bullying, hate speech and anti-democratic speech online.

The very architecture of social media platforms is in part to blame for this. Driven by the ‘attention economy’, platform algorithms reward the most attention-grabbing, emotionally engaging material. It is the most shocking content that captures and sustains our attention, appears highest in our newsfeeds and ultimately goes viral.

Applying free speech principles, in an absolute sense, further exacerbates this. To prevent platforms from moderating content altogether makes it impossible for social media companies to remove harmful content. This kind of content is accordingly free to spread, with potentially devastating consequences.

Further, rather than creating a space where multitudes of diverse opinions can flourish, a platform that allows content such as hate speech to be widely disseminated may actually have a chilling effect on free speech. Victims may be effectively silenced by the intimidatory, discrediting and humiliating effect of hate speech. This undermines the free speech of hate speech target groups and reduces the diversity of voices in the ‘marketplace of ideas’ first envisaged by Holmes J’s seminal judgment in Abrams v United States.

Additionally, if disinformation and false news is protected by free speech laws on social media, this may lead to a rise in anti-democratic speech and foreign election interference, of the kind seen in the 2016 U.S. election. This undermines effective self-government through democracy, which is a defining justification for free speech propounded by theorist Alexander Meiklejohn. Through its truth distorting effect, the protection of disinformation and false news also undermines another prevailing purpose of free speech advanced by John Stuart Mill – the discovery of truth through rational, intelligent debate. 

The above illustrates that, albeit counter-intuitively, applying free speech principles to social media absolutely may actually threaten free speech, rather than protect it. Some limits on speech are therefore necessary to facilitate intelligent debate. Free speech must be – and has always been – counter-balanced with competing interests like personal autonomy.

Careful limiting of free speech can help free speech flourish – but these limits need to be decided carefully

Notwithstanding the irony of GETTR’s dilemma, the platform’s abject failure to thrive is also cause for concern.

We should be concerned about the dominance of only a few social media superpowers like Facebook and Twitter and the inability of a niche platform like GETTR to survive in this environment.      

We should also be concerned about the hugely silencing effect of Twitter and Facebook decision to de-platform a politician like Trump. Indeed, international leaders such as Angela Merkel and Alexei Navalny have both rightly expressed concern over Trump’s ban from mainstream social media.      

Since his removal from the platforms, discussion of Trump on social media has gone down by 91 percent. The ability of Trump to challenge the bans is limited, particularly given that Facebook and Twitter, as private companies, are not bound by free speech norms (which traditionally only apply to the State under US law). He is nevertheless attempting to argue in court that the platforms are extensions of the State. Team Trump’s failed attempt to launch an independent blog is further evidence of his loss of political traction since the de-platforming.

While Trump clearly violated free speech norms against incitement to violence, the silencing impact of de-platforming Trump should serve as a warning. It shows us the enormous power of social media companies in governing speech – who speaks, how much and when. Should only a few autocratic, profit-centric social media companies be able to govern so much speech without restraint or guidance? 

A way forward

GETTR shows that free speech is under threat on social media from two directions.

From one perspective, the proliferation of rampant disinformation, false news, foreign interference and hate speech, threatens the very founding principles of free speech and democracy itself. This is significantly worsened where free speech principles are strictly applied on social media platforms.

On the other hand, the immense power of private social media companies to engage in content moderation that in effect may silence political discourse, including that of a President in office presents an arguably larger threat to free speech than governments themselves.

Rather than the absolutist approach to free speech of the United States, a more nuanced tool is required. Given the global superpowers that these large social media companies have become, perhaps international human rights law holds the key. We should require social media companies to make their standards and policies compatible with international human rights law. This would enable a more nuanced approach that would balance the protection of freedom of expression with other competing human rights, whilst simultaneously protecting users from hate speech and discrimination.

Madeleine Hale is a PhD Candidate and Sessional Academic at Monash University and was previously a corporate lawyer at Herbert Smith Freehills. She is also a PhD Affiliate member of the Castan Centre for Human Rights Law. Madeleine’s PhD is examining the application of freedom of speech rights to social media companies.

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