Social Media and the First Amendment: Is censorship by social media platforms a constitutional violation?
“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.”1
We’ve all learned about the First Amendment, whether it be memorizing it for a high school test or taking a full course focused on it in college or law school. Recently, the First Amendment has been in the news in relation to several social media companies’ decisions to block and ban former president Donald Trump from their platforms. Following the attack on the Capitol on January 6, 2021, and the former president’s role in and response to the attack, Twitter stated that “After close review of recent tweets from the @realDonaldTrump account and the context around them — specifically how they are being received and interpreted on and off Twitter — we have permanently suspended the account due to the risk of further incitement of violence.”2 Following suit, other social media platforms “swiftly cracked down on whole channels and accounts associated with the violence. Reddit removed the r/DonaldTrump subreddit. YouTube tightened its policy on posting videos that called the outcome of the election into doubt. TikTok took down posts with hashtags like #stormthecapitol. Facebook indefinitely suspended Trump’s account.”3
Following Trump’s “silencing,” as he and his allies believed to be the case,4 the question arose: “[a]re social media companies in violation of the First Amendment when banning someone from using their platforms?”5 And “[t]he answer is simply, no. The First Amendment is strictly relevant to the government. It’s a different field of play when you enter social media platforms, even if you are the President of the United States.”6 The First Amendment explicitly states that “Congress shall make no law.”7 It does not mention private actors.8 According to constitutional law professor Nadine Strossen, “Facebook, Twitter, the other social media platforms are not the government. They are private sector entities, and therefore, they have no First Amendment obligation to protect your freedom of speech. To the contrary, they have their own First Amendment rights—their media right. So, just as the New York Times or CNN or any other traditional media platform has no obligation to host your particular message, the same is true for social media.”9 In fact, not only were the actions taken by these social media platforms not First Amendment violations, but they were in accordance with Section 230 of the Communications Decency Act (CDA). Section 230 of the CDA states “[n]o provider or user of an interactive computer service shall be held liable on account of (A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.”10 Trump’s actions before, during, and after the attack on the Capitol fall squarely within the rights granted to tech companies under the CDA.
While these platforms are held to different standards, and governed by different laws, there has been much debate as to whether they should be treated more like governmental entities and less like private actors. “The root issue of concern here is the private control of social media platforms which, with billions of users and pages, have become almost essential to engaging with society. Meaning, social media platforms have become less like shops and restaurants and more like the roads and bridges of the internet.”11 Scholars debating the issue have pointed to past Supreme Court decisions, their First Amendment implications on private companies, and how social media platforms should be viewed.12 The debate surrounding these platforms, their First Amendment implications, and censorship are far from over—if anything they are just beginning. With the furthering political divide and its effect on the media and news, action is likely to be taken one day against these platforms. But for now, censoring posts and banning individuals if their posts have a harmful effect is not a violation of the First Amendment.
U.S. Const. amend. I.↩
Jason Puckett and Linda S. Johnson, Social media bans don’t violate First Amendment, here’s why, King5 (Jan. 9, 2021, 4:48 PM), https://www.king5.com/article/news/verify/verify-social-media-bans-dont-violate-1st-amendment/507-af0d18fb-2ce3-4a51-82a2-b2a3374f30f5 [https://perma.cc/WP24-L8VY].↩
Emily Bazelon, Why Is Big Tech Policing Speech? Because the Government Isn’t, N.Y. Times (Jan. 26, 2021), https://www.nytimes.com/2021/01/26/magazine/free-speech-tech.html [https://perma.cc/TW7Z-45X2].↩
Maddie Hannah, Does Twitter’s ban violate Trump’s free-speech rights? Likely not, but it raises questions about social media platforms, Philly experts say., Phila. Inquirer (Jan. 9, 2021), https://www.inquirer.com/news/twitter-bans-trump-free-speech-first-amendment-20210109.html [https://perma.cc/39SF-3G7U].↩
Justin Lum, First Amendment expert breaks down what the protection means for social media giants, Fox10 PHX (Jan. 11, 2021), https://www.fox10phoenix.com/news/first-amendment-expert-breaks-down-what-it-means-for-social-media-giants [https://perma.cc/EZQ8-SGRR].↩
U.S. Const. amend. I.↩
Nadine Strossen, Does the First Amendment Apply to Social Media Companies?, TALKSONLAW (Feb. 21, 2020), https://www.talksonlaw.com/briefs/does-the-first-amendment-require-social-media-platforms-to-grant-access-to-all-users [https://perma.cc/66G9-4WDC].↩
47 U.S.C. § 230(c)(2).↩
Joe McLean, Does a Twitter ban violate First Amendment rights? A legal expert weighs in, News4Jax (Jan. 11, 2021, 5:54 PM), https://www.news4jax.com/news/local/2021/01/11/does-a-twitter-ban-violate-first-amendment-rights-a-legal-expert-weighs-in/ [https://perma.cc/8BXS-YRNH].↩
See Genevieve Lakier, The Great Free-Speech Reversal, The Atlantic (Jan. 27, 2021), https://www.theatlantic.com/ideas/archive/2021/01/first-amendment-regulation/617827/ [https://perma.cc/CL6G-JLCD].↩