This week I am going to address yet another complicated and controversial legal issue involving President Donald Trump.
In the days since rioters invaded the U.S. Capitol, a number of social media platforms, most notably Twitter, have imposed outright bans or restrictions on his accounts. I am not going to reveal whether I agree or disagree with the actions taken by those private companies, but I have been asked repeatedly if the bans/restrictions violate President Trump’s free speech rights under the First Amendment.
The answer is no.
The plain text of the First Amendment — which reads in part “Congress shall make no law…abridging the freedom of speech…” plus the Fourteenth Amendment which extends that clause to the states and longstanding U.S. Supreme Court precedents establish that the Free Speech Clause applies only to governments.
And, as I’ve noted in past columns, the right is not absolute.
In 1919 U.S. Supreme Court Justice Oliver Wendell Holmes wrote that “The most stringent protection of free speech would not protect a man falsely shouting fire in a theatre and causing a panic.” Fifty years later, the court held that speech likely to incite “imminent lawless action” was unprotected.
Whether anyone violated that standard in the run-up to the breach of the U.S. Capitol is now under investigation.
I must also point out that those who assert that Twitter et. al. have violated the president’s rights have it backward. That is because the Supreme Court has repeatedly ruled private businesses and non-governmental entities have the absolute right under the First and Fourteenth Amendments to exclude users.
That precedent, known as the “state actor test,” was recently upheld in Manhattan Community Access Corp. v. Halleck in which the court ruled a public access cable channel was not a government actor and therefore could not be forced to broadcast content it found objectionable.
The same holds true for Twitter, Facebook, Instagram, other social media companies, Google, Apple, and yes, Amazon which has denied Parler the use of its servers.
Think of it this way. From the time the nation was founded until Mark Zuckerberg changed the world, newspapers were the primary purveyors of news and information. No one could force a publisher to run a story or take an editorial position. They owned the newsprint, the ink and the presses and the First Amendment protected their right to report — or not report — whatever they wanted.
From a legal standpoint, Zuckerberg and the other tech companies enjoy the same protections — even though they do not smell like ink and you cannot wrap a fish in a Facebook page.
So, unless and until the Supreme Court upends decades of precedent and exempts social media firms from the state actor test or Congress passes a law the companies the right to censor content, Facebook will continue to have the power to take down your cat video if they choose to do so.
But take comfort in the fact that you can stand on the public sidewalk outside the company’s headquarters and exercise your First Amendment right to call Mark Zuckerberg a jerk.
— Attorney David Betras, a senior partner at Betras, Kopp & Harshman LLC., directs the firm’s non-litigation activities and practices criminal defense law in both the state and federal courts. He has practiced law for 35 years. Have a legal question you'd like answered here? Send it to email@example.com.