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Social Media and the First Amendment Freedom of Speech

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By James J. Barney
Associate Professor of Legal Studies, School of Security and Global Studies, American Military University

Social media companies like Twitter and Facebook are private entities. However, social media platforms provide the public with the tools and public forums to exchange ideas, connect with friends and colleagues, network with potential clients, and express one’s political beliefs.

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Over the past decade, accessing social media has become a daily ritual that many people view as a necessity. However, embedded in their Terms and Conditions of Use, social media companies reserve the right to establish community standards and to police their sites.

In recent months, several social media companies have removed numerous conservative commentators for behavior that violated their Terms and Conditions or “community standards.” These commentators allege that by removing them, the social media companies violated their First Amendment rights in order to reflect their “liberal bias.” Others simply accuse the social media companies of engaging in censorship.

In July, President Trump convened a number of conservative commentators in what he labeled a “Presidential Social Media Summit.”  At this White House meeting, Trump and the conservative commentators discussed social media companies’ alleged censorship and violations of the First Amendment. Ironically, the gathering occurred only days after the Second Circuit Court of Appeals held that President Trump himself had violated the First Amendment when he blocked several Twitter users from his account whom he disagreed with.

These developments, as well as a recent Supreme Court case dealing with the First Amendment, provide a perfect opportunity to explore 1) several legal issues raised by social media companies and 2) the complex legal issues raised by actions of state actors like Trump who find themselves on social media platforms. The widespread confusion over the First Amendment has negatively affected the national dialogue about the role of social media and has raised a series of imprudent proposals.

Can Social Media Companies Violate the First Amendment?

For the sake of argument, let us assume that the leaders of social media companies view the world from a “liberal perspective” that influences their decision making, including their interpretation of their established Terms and Conditions of Service. This is what conservative critics allege. So, does this mean that social media companies engage in “censorship” when they bar conservative commentators and entities from their sites?

Loosely defined, censorship is any act by government, private entity or individual that suppresses speech for a host of reasons. So, in popular parlance, social media companies are engaging in censorship when they bar users from their sites.

However, under existing Supreme Court precedent, barring people and entities from a social media site for violations of established Community Standards, even if that overwhelmingly excludes people with a particular political viewpoint, does not constitute a violation of the First Amendment.

According to existing Supreme Court precedent, the Bill of Rights, including the First Amendment, only protects people and entities against the actions of state actors — federal, state, and local governments and their agents or those acting under the direction of a state actor. A social media company acting of its own accord would not be viewed as an action by a state actor.

The current confusion over alleged censorship on social media, in part, derives from a misunderstanding of the Supreme Court’s decision in Packingham v. North Carolina. In this 2017 case, the Court held that states like North Carolina could not bar anyone from the Internet who was convicted of sexual crimes. According to the 6-3 majority in Packingham, access to the Internet is a First Amendment right and states cannot bar individuals from accessing it.

The Packingham decision led to the notion that social media companies could not bar certain people from their sites without violating the First Amendment. However, the Supreme Court did not address whether private social media companies can establish rules of conduct on their sites and then exclude those who violate those rules.

In recent months, academics, legal scholars, and commentators like Adam Candeum, writing in the American Conservative, have engaged in an extended and vigorous debate regarding whether social media companies are publishers or merely 21st-century bulletin boards. A publisher possesses editorial oversight over the material published and can decide what content is worthy of publication. But a bulletin board merely provides members of a community with an open forum with little oversight over the user-posted content.

Unlikely that the Supreme Court Will Find that Social Media Companies Are State Actors

This debate, however, may be of little legal consequence. Unless directed by a government or acting on behalf of a government, it is unlikely that the Supreme Court will find that social media companies are state actors for First Amendment purposes.

Thus, social media companies will likely avoid suits based on alleged violations of the First Amendment under established precedent. Whether this is good or bad is ultimately a matter of policy preference and personal ideology.

Social Media Companies Are Not Free to Act with Impunity

While social media companies may escape lawsuits based on First Amendment violations, this does not mean that they are free to act with impunity. For example, a social media company might be subject to a lawsuit or arbitration for violations of the Terms and Conditions of Service depending upon those terms and conditions. However, litigation over the Terms and Conditions of Service could prove costly and, in some cases, potentially damaging to the public reputation of that social media company.

The Supreme Court Explores the Meaning of State Actor

The Supreme Court 2018-2019 term afforded the justices the opportunity to consider the concept of “a state actor” for purposes of First Amendment analysis.

Justice Brent Kavanaugh, writing for the majority, in Manhattan Community Access Corp. v. Halleck, explored whether Manhattan Community Access Corporation (MCAC), which operates a public access cable channel in New York City that provided the community with a “public forum,” was a state actor for purposes of First Amendment analysis.

The lawsuit arose when MCAC took various adverse actions against several former employees who aired a program critical of the cable station. In addition to canceling the program, MCAC barred two former employees who produced the program from the building. In response, the two former employers sued MCAC for violation of their First Amendment rights.

In the decision, Justice Kavanaugh held that even though the cable channel’s origins derived from a city government mandate to provide community access, this did not make the private corporation that operated the cable station a state actor as defined by existing First Amendment jurisprudence. Because the cable company was not a state actor, Kavanaugh held therefore that the former employees could not sue MCAC for violating the First Amendment.

In their dissent, the four Justices often labeled as liberals (Ruth Bader Ginsburg, Sonia Sotomayor, Elena Kagan and Stephen Breyer) argued for a more expansive definition of “state actor” to include entities like the Manhattan Community Access Corporation. The dissenters emphasized that MCAC provided a public forum created by a governmental mandate.

In the days after the Supreme Court’s decision, commentators like Reuters’ Alison Frankel immediately speculated about the impact of Manhattan Community Access Corp. v. Halleck on how the Court would treat social media companies in the future.

For example, CNBC’s Tucker Higgins said the majority’s decision hinted that the Supreme Court would likely find that social media companies were not state actors if challenged in the courts by conservative commentators who had been banned or suspended by social media companies.

This type of commentary often glossed over the fact that in Manhattan Community Access Corp. v. Halleck the Supreme Court addressed an extraordinarily narrow situation involving a private corporation established by a government mandate. Thus, the case had little direct relevance to the evaluation of actions by social media companies.

What Happens When a State Actor Operates on a Social Media Platform?

While social media companies are not state actors under existing First Amendment law, what happens when a state actor like President Trump operates on social media as he does frequently on Twitter?

In July, the Second Circuit Court of Appeals examined whether Trump’s activities on the public forum Twitter constituted a state-action for purposes of First Amendment analysis.

Specifically, in Knight First Amendment Institute at Columbia University, et al., v. Trump, the Second Circuit Court of Appeals explored whether the President’s decision to block users from his Twitter feed constituted a violation of their First Amendment rights. The Court of Appeals held that Trump’s activities on Twitter created an “interactive space” that was a public forum. Excluding certain users from that space constituted viewpoint discrimination and was in violation of the First Amendment.

The Second Circuit Court of Appeals held that once President Trump created a public forum on social media, he had no power to police the forum by means that others possess due to his status as a state actor.

Some Court observers panned the Second Circuit’s decision, raising legitimate concerns about its logic. In particular, Michael McGough in the Los Angeles Times argued that the Second Circuit’s opinion may be poetic justice, but that the decision was bad constitutional law.

For the most part, the criticisms of the decision are well-founded. For example, the Second Circuit’s opinion omitted any sustained discussion of how, if at all, the Terms and Conditions of Service established by Twitter affected the First Amendment analysis. Moreover, the Second Circuit paid little attention to how the President’s actions did not deprive the blocked users of alternative avenues to express their views.

Moreover, the Second Circuit glossed over the fact that if Trump via Twitter was engaged in governmental speech — speech in which he is speaking for and on behalf of the government — he does not have to entertain conflicting viewpoints. Finally, the Second Circuit did not adequately address how blocking a person from Twitter is different from ejecting a heckler who interrupts a politician’s speech by yelling slogans that the politician finds offensive.

The Second Circuit’s decision attracted a sizeable amount of media coverage. However, the Second Circuit’s decision may ultimately be of little precedential value. President Trump and the blocked users that sued him agreed via a stipulation that President Trump blocked the users in question because he disagreed with their political views.

Viewpoint discrimination is a fact-sensitive analysis. The Second Circuit avoided the fact-sensitive viewpoint discrimination analysis via the stipulation of the parties in Knight First Amendment Institute at Columbia University. It is highly unlikely that courts, in the future, are likely to hear such clear-cut cases.

While flawed, the Second Circuit’s opinion illustrates that state actors, even if operating on platforms that they do not fully control, are subject to First Amendment lawsuits if they attempt to suppress speech via their actions.

Proposals That Seek to Regulate Social Media Could Have Unforeseen and Undesirable Consequences

Recognizing that under existing law social media companies generally have free rein to police their sites, legislators in the United States and abroad have called for regulating these companies. For example, legislators in the United Kingdom have proposed laws that would require social media companies to police their sites for posts and content viewed as “harmful.” They have also proposed a series of fines if social media companies fail to remove such content.

While aimed at combating cyberbullying, child pornography and terrorism, Britain’s proposed law would impose a series of mandates on social media companies that would change the nature of their platforms and possibly have a host of unintended consequences.

Similarly, U.S. legislators and legal experts on both sides of the ideological divide have floated several proposals that would either require social media companies to engage in greater oversight of their platforms or bar the companies from engaging in content discrimination.

Such proposals, while well-intentioned, would raise a host of constitutional problems under existing First Amendment law. Specifically, mandating that social media remove “harmful content” potentially blurs the already confusing line between the actions of state actors and those of private entities. Likewise, greater oversight of social media by the social media companies themselves might stifle free expression on social media platforms.

While many Americans might find the actions of social media companies objectionable, government mandates and stricter regulation would only further complicate an already murky legal landscape.

About the Author

James Barney is an Associate Professor of Legal Studies in the School of Security and Global Studies. In addition to possessing a J.D., James has several master’s degrees, including in American foreign policy. He is currently completing his Ph.D. in History. James serves as one of the faculty advisors of the Phi Alpha Delta law fraternity as well as the Model United Nations Club and acts as the pre-law advisor at AMU. Currently, he is working on a year-long research project that focuses on Justice Kavanaugh’s impact on the Supreme Court.

James is licensed to practice law in New York, New Jersey, Alabama and the District of Columbia. Over the past several years, he has served in various roles at debating and moot trial competitions in New York and Washington, D.C. In 2019, James will co-coach the APUS mock trial team at Phi Alpha Delta’s annual mock trial competition in Arlington, Virginia and will also serve as one of the faculty advisors for the school’s Model UN delegation to the National Model United Nations-Washington D.C. conference. He is currently working on a project to launch a study-abroad trip to London in 2020.

James Barney 3

Dr. James Barney is a Professor of Legal Studies at the University’s School of Security and Global Studies. In the past, Dr. Barney has been the recipient of several awards. He teaches undergraduate and graduate law and history courses. In addition to having earned a Ph.D. in history from The University of Memphis, Dr. Barney has several master's degrees, including one in U.S. foreign policy and a J.D. from New York Law School. Dr. Barney serves as one of the faculty advisors of the Phi Alpha Delta law fraternity and the Model United Nations Club, and he is the pre-law advisor at the University. He is currently finishing a book on the politics of New York City during the administration of New York City's first African American Mayor David Dinkins, 1989-1993.

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