CONSTITUTIONAL DILEMMA?
Sorry, but there is no First Amendment right to social media use
Q: I thought the attack on the Capitol Jan. 6 by supporters of President Donald Trump was horrible, but I’m really worried about the way social media like Twitter and Facebook are denying people like the president their free-speech rights. How can the tech companies get away with violating the Constitution like this? Am I missing something?
A: The tech companies have not violated the Constitution. By removing users from their platforms, social media companies do not deny people the right to freedom of expression under the First Amendment.
The First Amendment to the Constitution protects speech from government censorship, not the actions of private businesses. The Amendment, part of the Bill of Rights, states in part: “Congress shall make no law ... abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble.”
Actions by private businesses to restrict speech do not violate the Constitution. An employer, for instance, can fire a worker who disagrees with its policies, or who espouses views — even outside of work — that are inconsistent with the employer’s image, policies or stated values. Businesses and individuals can choose not to associate with views with which they disagree — and, in fact, the right not to speak, also is indirectly protected by the First Amendment.
The government cannot control what newspapers publish. And states cannot require workers to pay union dues that support political views with which they disagree.
Even where government action is involved, the right to speak one’s mind is not unfettered. The government can place reasonable restrictions on the time, place or manner of speech — as long as the restrictions are not related to the content of the speech. Use of loudspeakers at night in a residential neighborhood can be prohibited, for example, as could a gathering that blocks traffic, or a protest that prevents people from accessing medical facilities.
Speech that incites “imminent” unlawful action can be prohibited, as can obscenity, child pornography, defamation and libel and “threats,” which have been defined as a “statement which ... a reasonable person would foresee would be interpreted ... as a serious expression of intent to inflict bodily harm.” Planned Parenthood v American Coalition of Life Activists (9th Circuit, 2002).
Trump is not the only one accusing social media giants of violating the First Amendment by kicking some right-wing and pro-trump voices off their platforms. The president’s son, Donald Jr., claimed — on Twitter, ironically — that “Free speech no longer exists in America.” Sen. Josh Hawley, who was the first senator to object to the certification of Joe Biden’s victory and who went through with his objection after the riot, claimed his rights were trampled when Simon & Schuster decided not to publish his book on big tech.
Trump, Donald Jr., and Hawley — especially Hawley, an Ivy League-educated lawyer — should, and do, know better.
Twitter and Facebook do not violate their users’ free speech rights by suspending the accounts of people who violate the companies’ terms of service, and a publisher is not required to publish a book by an author it may hold in contempt.
But the inaccurate description of the First Amendment disseminated by both Trump Jr. and Hawley is a misinterpretation shared by a majority of Americans. A 2019 survey by the Freedom Forum, a nonprofit dedicated to raising awareness of First Amendment, found that 65 percent of respondents believed — wrongly — that banning users on social media because of the content of their posts was a First Amendment violation.
Social media platforms like Facebook and Twitter enjoy protections not provided newspapers or other publishers. Thanks to a 1996 law, social media platforms — unlike publishers — can place some restrictions on the content disseminated without becoming civilly liable for the content. Section 230 of the Communications Decency Act allows social media to place “good faith” restrictions on material the provider considers to be “obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable.
Perhaps ironically, the purpose of the law was to protect a medium that offers “a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity.”
Both Facebook and Twitter, include adherence to standards as a condition for use of the free services. Facebook, for example, prohibits expression that “threatens people or has the potential to intimidate exclude or silence.” Twitter not only bans hateful conduct, but also explicitly prohibits the use of misleading information about COVID-19, violent threats and the glorification of violence.
Both companies contain exceptions to their policies for speech that is viewed as being “in the public interest,” although Twitter may flag some tweets. Twitter notes it is likely to remove a tweet if it “includes a declarative call to action that could harm a specific or individual group,” or “shares information or engages in behavior that could directly interfere with an individual’s exercise of their fundamental rights.”
Trump’s calls to overturn the results of the 2020 election — which would have disenfranchised the roughly 81 million people who voted for Biden in favor of roughly 74 million who voted for Trump — was determined to be a violation of Twitter and Facebook policies. While Facebook allowed the president to continue to make unsupported claims about the legality of the November election as being “in the public interest,” Twitter increasingly flagged the claims as inaccurate.
After Trump’s Jan. 6 rally, which preceded the insurrection and assault on the Capitol building, both platforms decided to suspend Trump’s accounts. Twitter stated that the “context around” his tweets, and the way they were being “received and interpreted on and off Twitter,” demonstrated a “risk of further incitement of violence.”
While neither social media giant violated the free speech rights of Trump nor Hawley, there is increasing concern about the power of social media to control the information Americans access, by suspending certain accounts — as in the case of the president — or by amplifying “extreme opinions,” or by limiting our exposure to information that appeals to and reinforces our existing views.
In the case of Trump, few individuals, if any, enjoy a wider platform from which to exercise the right to freedom of expression. The office of the President of the United States is arguably the largest platform in the world — dwarfing even social media giants.
Even without Twitter, Trump has no difficulty presenting his views to the nation: Few news organizations will skip a press conference called by the president of the United States, and coverage of such events is customarily disseminated throughout the globe.
Trump, however, is not alone in calling for greater control over social media. Both Trump and Biden, for different reasons, have called for a repeal of Section 230, which legally protects social media companies from liability from content posted by users.
Attorney Daniel A. Gwinn’s Troy practice focuses on employment law, civil rights litigation, probate, and trusts and estates. Contact him with your legal questions at daniel@gwinnlegal.com or visit the website at gwinnlegal.com. “Ask the Lawyer” is informational only and should not be considered legal advice.