Free Speech in a Social Media Driven World

The U.S. President has been banned from several social media platforms following the violence in the U.S. Capitol last week. Facebook and Instagram have suspended his accounts at least until President-Elect Joe Biden’s inauguration on January 20th. Twitter, Trump’s primary method of communicating with millions of followers, has permanently banned the @realdonaldtrump account. Numerous other platforms have banned or restricted access to his account, as well. 

YouTube has also issued a statement saying that since the election results have been certified by Congress, any videos spreading information about widespread voter fraud will be removed. YouTube channels with one strike will be temporarily suspended while three strikes will warrant a permanent ban. 

In addition to the restrictions imposed upon the President by the major social media platforms, he has also been banned from some smaller ones. Snapchat and Twitch suspended Trump’s accounts indefinitely, while Reddit has shut down several pro-Trump pages that were known for spreading misinformation and violent messages. While some would consider these bans to be too little too late, many have posed the question of whether or not these platforms are illegally restricting the constitutional freedom of speech.

How does freedom of speech play into this?

To be sure, people often treat freedom of speech as an absolute right, but that is simply not the case. Areas where free speech is limited or otherwise controlled includes, but is not limited to libel, slander, obscenity, pornography, sedition, incitement, fighting words, classified information, copyright violation, trade secrets, food labeling, non-disclosure agreements, the right to privacy, dignity, the right to be forgotten, public security, and perjury. Some of these are more generally accepted than others, but the concept of incitement is of primary concern in this instance. 

The First Amendment protects against viewpoint discrimination. That means you cannot silence someone just because their opinions are different than yours. Politicians of all stripes nonetheless have long taken issue with the relatively unrestrained allowance of viewpoints permitted within social media platforms. To date, at law, while incitement may be subject to censure, blocking perspectives and commentary is disallowed. Across the spectrum, from the President to Alexandra Ocasio-Cortez (AOC), government officials are vulnerable to suit for deleting and suppressing responses to their Twitter feeds. 

Politicians often use their social media accounts to announce policy decisions and interact with other elected officials, so their accounts may be considered government accounts and are subject to the First Amendment. Even so, 2019’s Knight First Amendment Institute v. Trump states that government accounts may express opinions and viewpoints, but they cannot limit or suppress the responses and commentary that such posts may elicit. 

Most social media platforms have judged many of Trump’s recent posts to be incitements of violence, an area where freedom of speech is limited, therefore enabling them to take action on his accounts. However, social media accounts have a much lower bar to clear than proving incitement. The social platforms in question are private companies, so at least for now, they are not required to argue incitement to violence, they only need to demonstrate that their company’s Terms of Service were violated. 

So, are the social media platforms allowed to do this?

Yes.

An important fact that critics of Trump’s suspension have failed, or refused, to realize is that services like Twitter, Facebook, even the New York Times and the Wall Street Journal, are all privately owned. They are well within their rights to cut off a line of communication simply if it is in violation of their Terms or Service. It is the equivalent of a contract between service platform and user, but can get blurred when government officials use these platforms to communicate with their followers.

Twitter’s terms of service clearly state, “We may suspend or terminate your account or cease providing you with all or part of the services at any time for any or no reason.” Every user agrees to this when they create an account. Therefore, Twitter was within their legal rights to suspend or ban Trump’s account. Beyond this simple statement in their terms of service, they also have extensive content policies outlined. 

The real question here isn’t whether Twitter and other social media companies are allowed to control who and how users can post on their platforms, but for how much longer will they unilaterally be able to wield such control? The sheer scope of social media continues to grow exponentially, as well as the sway of users with enormous followings. In short, the power these platforms has increases every day. It is now easier than ever to spread a potentially harmful message. The government may soon deem it necessary to regulate social media. This is an ongoing debate and one to pay close attention to.

Any questions about free speech and social media’s role in it? Don’t hesitate to reach out.

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