Blog LEGAL VIEW
Written by Luka Jovanović
The Banning Of Donald Trump
The most recent developments in the United States which shocked, possibly horrified, Europe and the world had one seemingly unexpected twist. After the departing American president Donald Trump, who has for years spurred hatred over social networks, fascism, threatened nuclear war and, finally, called for the overturning of results of the US presidential elections – which eventually on January 6th reached a crescendo as his supporters stormed the halls of Congress and issued death threats to those whom they perceived as Trump‘s enemies, including even vice-president Mike Pence – whom they intended to hang – social media companies banned Trump‘s accounts on all platforms!
This unusually unambiguous Trump „ban“ on Twitter and other networks has quickly been characterized as censorship by individuals, some of whom have, as a show of solidarity with President Trump, begun to close their accounts as well.
However, it is my view, with regards to this move on the part of social media, which I will continue to advocate from within Group 46, formed with FSD which, in accordance to Article 46 of the Constitution of Serbia, dedicated to protecting free speech in Serbia, that previously noted characterizations of the banning of Donald Trump from all social media labor not only under a misguided notion as to what censorship is but also under a misconception of what the right to free speech actually entails, in the US as well as in Serbia.
Namely, even though the Constitution guarantees free speech, it is my opinion that it does not and cannot guarantee the right to speech aimed at renovation and limitation of rights and freedoms of others that are guaranteed by that same Constitution.
Furthermore, no individual, organization or entity is obligated to publish such speech on its platforms, their publications, or their broadcasts – even if it comes from the President of the United States.
Free speech is a citizen‘s Right, as it is the Duty of the state.
Bearing that in mind, no citizen is under any obligation to enable the propagation of ideas and opinions that aren‘t protected by the Constitution. In fact, doing so could result in their civil and/or criminal accountability.
The unique position of social media in this respect represents a challenge to the further development of democratic culture and society, which after the events of January 6th they will no longer be able to ignore.
The existing legal framework in the US leaves those companies a vast amount of power and discretionary authority when it comes to defining the terms and conditions under which they allow access to their services. In this particular case, they decided to use that power to sanction a man who has for the first time in almost 250 years brought into question the peaceful transition of power in the United States. Future cases might not be as simple and perhaps requires a more up to date legal approach to such decisions that would be guided by the principles of the rule of law and an open society.
In any case, the events in the US must not be abused in Serbia in such a way as to provide the protection of the law and the Constitution to ideas and beliefs aimed at abolishing democracy at the expense of values upon which modern western societies are founded on. The extent to which the scenes akin to those that played out before Congress repeat themselves will be the measure of success or failure in that task.
*The author is attorney-at-law, project manager for FSD, and the chief coordinator for Group 46
