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No, the First Amendment doesn't prevent being banned on Twitter

Yes, it's more complicated than that.
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Electoral College Protests
Posted at 6:21 PM, Jan 12, 2021
and last updated 2021-01-12 19:18:49-05

CLEVELAND — Granting the freedoms of speech, press, religion, protest and petition, the First Amendment is without question a vital component to a functioning democracy. However, the public oftentimes misapplies the cherished provisions of the First Amendment to the decisions of private entities, most notably social media giants like Twitter and Facebook. Although pure ‘free speech’ isn’t protected on social media platforms, a First Amendment expert believes how Twitter and Facebook’s speech policies are guiding national conversations should be scrutinized.

Beginning Friday night with Twitter’s indefinite suspension of President Trump’s account, social media and other tech companies have taken substantial and in some cases dramatic steps to purge accounts responsible for misinformation, peddling conspiracy theories or promoting further violent uprisings at state capitols nationwide and in Washington D.C. Since the riots turned into insurrection at the U.S. Capitol last Wednesday, Twitter said it had removed a total of 70,000 accounts that staff determined propagated harmful QAnon conspiracy theories.

On Monday, Facebook announced in a blog post that it had taken action to eliminate content and groups centered around the phrase ‘stop the steal.’ AWS, the cloud-hosting arm of Amazon, notified Parler, an alternative to Twitter, that it would no longer host the website because of some of the hateful, harmful and seditious content produced by its users.

Andy Geronimo, the director of the First Amendment Clinic at Case Western Reserve University, said not only are free speech protections not applicable on social media websites, but, in some cases, it’s the companies and websites themselves that have the free speech protections.

“The First Amendment as a constitutional principle only constrains government actors,” Geronimo said. “If you think about it a certain way, the First Amendment would prohibit a government actor from forcing Twitter to carry certain speech. If the president wanted to say, ‘I’m using my powers as the chief executive to order Twitter to reactivate my account to carry my speech,’ that would be an interesting First Amendment case but I would expect it would be seen to violate the First Amendment.”

Most Americans are aware that the First Amendment has its limitations like "yelling fire in a crowded theater." However, in some cases, free speech protections carry certain caveats, especially in the days of social media. For example, state and federal courts have held that government figures may not block users on social media. Notably and recently, lawyers from the Department of Justice told a federal court that Trump’s tweets are “official statements of the president of the United States.”

Geronimo said that although the presence of a government figure’s official page on a social media platform does create a “public forum” where free speech protections can be applied, Twitter and Facebook themselves are not considered public forums, meaning the social media companies can limit and remove content that goes against established community standards.

“This isn’t the first time that somebody has been removed from Twitter or Facebook or a particular subject has been blocked. If you think about it from a constitutional analysis perspective, there are a lot of constitutionally protected things that are not allowed on Twitter or Facebook,” Geronimo said. “In some ways, I’m glad we’re having this conversation. The high profile nature of the president’s account has made it so that we are all willing to engage and talk about these effects of censorship at this level. I think we do need to be concerned about the extent to which platforms that host this crucial free expression are sort of subverting their own norms onto the online speech conversation.”

Moving forward, Geronimo said it is imperative that social media providers are democratic, transparent and accountable when it comes to their content moderation policies. However, some lawmakers from both parties have expressed a desire to go even further than that. Most notably, several Republicans, including President Trump, have called for the repeal of Section 230 of the Communications Decency Act of 1996.

“A site cannot be sued for the content they delete if they find it obscene or otherwise objectionable under the statute,” Geronimo said. “This allows the Facebooks and Twitters of the world to cull and remove the speech that they don’t want on their platform. Section 230 provides immunity for things that are posted by users on websites as well as the websites' efforts to moderate the content.”

Experts that study the confluence of free speech and the internet, including the Electronic Frontier Foundation, have billed Section 230 as the most important law protecting internet speech. The applicable statute offers protections for websites and other "online intermediaries" against a range of laws that could be used to, "hold them legally responsible for what others say and do," according to the EFF’s website.

In 2019, the Congressional Research Service published a report that found that courts have frequently dismissed lawsuits because of these protections.

Geronimo said the irony is that if Section 230 were to be repealed, social media companies may be more inclined to issue more bans and account suspensions and at a greater pace.

“If you think about the explosion of the internet in general and amount that users post on it, the number of posts that exist on Facebook and Twitter, if they would be held liable for absolutely every one of those posts, you can imagine that they would have some incentive to put up large roadblocks,” Geronimo said. “Without the protections of Section 230, Twitter might have deleted [President Trump’s] account a long time ago because he’s arguably saying defamatory things or at least things that might make the subjects of those comments want to file a defamation action against the president and Twitter.”

Geronimo said people shouldn’t necessarily just automatically dismiss Twitter and Facebook’s moderation policies as a case of private companies acting in their best interest. Instead, Geronimo said, the actions of the social media giants and other tech companies should be closely monitored as more and more public discourse occurs online.

“It’s sort of an overly simplistic answer in my mind to say, ‘the president has no First Amendment rights to a Twitter account and we can wash our hands of this.’ I think we should examine closely the way that these platform’s speech policies are guiding the policies that guide all of us,” Geronimo said. “It would be dangerous for us to just say, ‘Twitter and Facebook can do whatever they want.’ They are large companies. They host a large amount of the speech online. I do think their content moderation practices should be democratic, transparent and accountable.”