After Trump was banned from Twitter (and other platforms) his defenders argued that this violated his right to free speech. In addressing this matter, I need to distinguish between the legal 1st Amendment right and the broader moral right to free expression.
While Americans often apply the idea of the 1st Amendment broadly, the law as written (LAW) is as follows: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” As constitutional scholars have long noted, the protection afforded by this amendment only applies to congress and it does not apply to private entities. As such, the social media companies cannot violate Trump’s 1st Amendment right. In fact, businesses enjoy great freedom when it comes to exercising their power over employees and customers.
An employer can fire an employee for holding political views they dislike, for social drinking outside of work, or for smoking outside of work. Employers also have a very broad right to surveil their employees at work or when using work equipment. While the government would need a warrant to read your work email or listen in on your calls made at work, your employer can do that at will. In some cases, they can legally put cameras in bathrooms to monitor employees. As would be suspected, Republicans (and many Democrats) seem fine with this level of power over employees.
In the case of customers, businesses are largely free to deny customers their goods and services—the conditions under which this can occur is often spelled out in the end user license agreement or terms of service. This legal right of businesses has generally been upheld. It must, however, be noted that there are some limits to this right of refusal. Businesses are also often allowed to exercise other powers over customers, such as putting in their contracts a clause that requires customers to engage in arbitration (effectively taking away the right of customers to sue). Businesses are also treated differently when they engage in certain activities that would result in jail time if committed by individuals (Wells Fargo provides a good example here). But this is another matter for another time. Republican (and Democrat) law makers have generally been fine with this (with some notable exceptions, such as Bernie Sanders and Elizabeth Warren).
While I am not a lawyer, the law is blindingly clear on this matter: the social media companies cannot, by definition, violate Trump’s legal 1st Amendment rights. This is true of everyone; they cannot legally violate my 1st Amendment rights either. Naturally, a law could be made that protects free speech rights against businesses but that would not help Trump now. This leads to the question of whether such a law should be created, and this takes us into the realm of the moral right to free speech.
Those who have read my past works know that I hold a liberal view of free expression and the only grounds for limiting expression is to prevent meaningful harm. When defending this right on a large scale, I usually appeal to J.S. Mill’s utilitarian argument: allowing free expression creates more good than evil. Like any right, it can be limited to prevent harm. The usual example is, of course, the case of yelling “fire” in a crowded theatre when there is no fire. I do sometimes appeal to Locke’s theory of natural rights when I need to argue against utilitarian attacks on free expression and I am willing to accept the consequences of professing a natural rights theory of free expression.
Being consistent, I apply the same approach to other rights. In the case of business owners, I would argue that a utilitarian (or Lockean) case can be made for their right to control their business within the usual limits of rights. This would include rights relative to customers, the state, and employees. As always, these rights would need to be limited by the principle of harm. For example, a business does not have the moral right to pollute so that it can make more profits. But businesses do have the right to ban customers for certain behavior. To use an obvious example, someone who insists on going into a Walmart naked and harassing other customers can be justly excluded by the business. Likewise, there is behavior that would warrant a social media company banning a user. The moral challenge is sorting out what actions would warrant a ban.
It could, of course, be argued that social media companies have the right to ban anyone—the usual analogy is that a homeowner has the right to kick people out of their home when they do not want them there. But, of course, the analogy has a problem: while I can kick unwanted guests out of my home, concerns about discrimination mean I do not have the right to kick people out of my business for just any reason.
It is also often argued that a right to free expression is a negative right rather than a positive right. That is, the right protects you from interference but does not entitle you to a platform. To illustrate, if I threatened to harm you if you express yourself, then I would be violating your right to free expression. But if I declined to allow you to use my computer and YouTube channel to present your views, I would not be violating your right—you have no right to my computer or my channel. On this view, the social media companies would be within their moral rights to ban a user—they do not have a right to be given a platform.
One obvious concern with this view is that social media companies are in a position of great power since they control major avenues of expression. If a person is banned by Google, Twitter, and Facebook, then their options for expression are limited. It can be countered that there are other options—a person could have their own blog or, if they have the resources, create their own platform. This response is, of course, analogous to a stock response to criticisms of employers: if you do not like how you are treated as an employee, go work for someone else or start your own business. But this response can backfire. I do agree that the situations are analogous, but my inference is that in both cases businesses have far too much power and individuals need to be protected from them.
As such, I would agree with the Republicans who are concerned about the power of tech companies to use their power to violate the right of free expression—but I would apply this concern about rights more broadly and in a consistent way. That is, if businesses should not have the power to violate the right of free expression, then the general principle that they should not have the power to violate rights should be applied consistently. So, for example, businesses should not be allowed to violate the free expression and privacy rights of employers. They should also not be allowed to infringe on the right to life by degrading and damaging the health of people by polluting. It can even be argued that if the Republicans are right about the need for businesses to respect the freedom of expression, then they also need to respect other basic rights—which could be used to push for improved wages and better treatment of employers and customers. But I suspect that the Republicans are arguing in bad faith: they do not think that citizens need to be protected from the power of business; they are just mad that their guy and his followers got banned. If they believed in protecting rights from the power of business, they would embrace more restrictions on business and greater protections for employees and customers. But they seem to be only concerned with a specific harm that impacts them; they are merely masking it in moral language.