Can Social Networks Limit Free Speech?

The short answer to this important question is “it depends,” as is so often the case in dealing with legal issues.

Whether social networks can censor our speech and determine who is and who is not allowed to use their platforms is simply a legal issue. Your relationship with these networks is governed by their Terms of Service. Before using Twitter, Facebook, Instagram, Parler, Google, or any other technology service, these consumer-facing technology platforms make us agree to their Terms of Service (TOS), which determines how we are and are not allowed to use their platform.

Social media companies have long struggled with balancing content moderation with the ability of the user to post the content they want to post. While these issues are on the new seemingly hourly these days, they are not new legal issues.

Isn’t this a First Amendment Issue?

While this all might look and feel like a First Amendment issue, legally, it’s not.

All of the technology platforms referenced above and many more like them are private companies. They are not the government and they are not government actors.

There are many people who use social media who complain that these companies have violated their First Amendment by removing their posts or banning them from their platforms. While it might not feel good or very fair to have a post or tweet removed or to be temporarily or even permanently banned from a social media site, The First Amendment makes it clear that the government can’t limit our free speech. Private companies are not included in these critically important First Amendment speech protections.

It’s the difference between allowing who can show up at Federal court to watch a public hearing and who can attend your nephew’s birthday party. The former has a set of rules and to deviate from this and exclude members of the public who have done nothing wrong aside from perhaps having long hair or wearing sneakers is not acceptable under the law. But you can invite anyone you want to a family party and aren’t obliged to include anyone or even have the party.

The reason we are all talking about these issues today began with Twitter’s ongoing contentious relationship with President Donald J. Trump, who was permanently suspended from their technology platform last Friday.

The final straw, from Twitter’s perspective (again, as a private technology company, not a government entity) was their interpretation of two of his tweets from Thursday as having the intent to incite violence, as taken in the context of the week’s events:

On January 8, 2021, President Donald J. Trump Tweeted:

“The 75,000,000 great American Patriots who voted for me, AMERICA FIRST, and MAKE AMERICA GREAT AGAIN, will have a GIANT VOICE long into the future. They will not be disrespected or treated unfairly in any way, shape or form!!!”

Shortly thereafter, the President Tweeted:

“To all of those who have asked, I will not be going to the Inauguration on January 20th.”

Having determined that these tweets violated their “glorification of violence policy,” Twitter made the suspension permanent.

Twitter had made exceptions to its rules before for President Trump, who had been granted a special exemption allowing him to tweet content that violated Twitter’s terms of service. The argument was that allowing this content to remain was in the public interest as it came from the President of the United States.

This is where it becomes a slippery slope. When technology companies permit exemptions from their contractual terms of service, it not only polarizes public opinion, it weakens the strength of a contract that is supposed to be applied to all users in all circumstances.

Parler is also in the news these days, yet the situation with Parler is different than what happened with its rival, Twitter.

Over the past few days, Amazon, Google, and Apple all pulled their services from Parler – self-described as the “free-speech” app – because of the role of Parler users in organizing Wednesday’s events at the Capitol.

There is no way any social media application can exist without these fundamental services. They control everything, including how people download the app to their devices, how and where the data is transmitted – literally everything save the design of the site itself and the user experience.

The systematic dismantling of Parler, a comparatively new entrant to the social networking space, began soon after the events at the Capitol when Apple and Google withdrew Parler from their app stores, On Saturday, Amazon effectively killed off the platform by announcing that it would shut off the servers for Parler, which ended up at least temporarily ceasing operations late Sunday.

It is interesting that the Parler situation is presenting at the same time as these platforms banning their highest-profile user. Parler’s business model is predicated upon as many users as possible users posting opinions that are at least on if not over the terms of service of the other platforms, but here it is Parler’s own service providers who objected. This is something interesting to watch moving forward in a technology landscape that will become even more crowded.

But couldn’t all of this have a chilling effect upon free speech?

Yes, especially where these private companies function very much as monopolies do, exercising what is essentially a quasi-legislative power in deciding what is and is not permissible speech.

If Twitter, Facebook, and Instagram can use their massive platforms and power to permanently suspend the President of the United States, what can they not do with their platforms?

The issue comes down to what these platforms will and will not be held liable for.

Section 230 of the Communications Act of 1934, at 47 U.S.C. § 230, provides immunity from liability for providers and users of an “interactive computer service” who publish information provided by third-party users. Section 230 specifies that: No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

While that would seem to get these platforms off the liability hook, there is an intense, ongoing debate in Congress as to whether all prominent social networks should enjoy the protections of Section 230, or only those platforms that are deemed to be politically neutral. While Section 230 itself does not account for such a provision, this is a legal debate that will only intensify over the coming months.

The articles on this blog are for informative purposes only and are no substitute for legal advice or an attorney-client relationship. If you are seeking legal advice, please contact our law firm directly.