The First Amendment & Social Media

The First Amendment to the United States Constitution was adopted in 1791 as part of the Bill of Rights which detailed a total of 10 amendments that would safeguard basic civil rights under the law. This Bill of Rights included the Second Amendment with the right to bear arms and the Sixth Amendment, the right to a trial by jury (amongst others).



The First Amendment states the following:


“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”


The First Amendment guarantees freedom of speech which is the right to express oneself without having to worry about government interference. Basically, it means that the government may not jail, fine, or impose civil liability on people or organizations based on what they say or write, except in limited circumstances. However, it does not mean that individuals are free to say anything that they want to. For example, it does not cover speech to incite actions that would harm others (such as shouting “Fire” in a busy theatre). It does not protect individuals who make or distribute obscene materials or promote the use of illegal drugs. In fact, there are many scenarios that would not be covered by the First Amendment. Due to the lack of documentation from when the Amendment was written or transcripts of the Senate meetings when it was passed, it is often down to challenges in the court and escalation to the Supreme Court for precedents to be decided.


One thing that we can be certain of though, is that the First Amendment was written almost 200 years before the use of smart phones and social media and as such, does not take into consideration what people can and can’t say on Facebook, Twister, Instagram, YouTube, TikTok and the long list of other applications where people voice opinions.


When the First Amendment was passed in 1791, the main forms of speech covered were verbal discussion and writings. Courts have already recognized that “freedom of speech” may extend to other methods of expressing opinion, such as theater, dance, and visual art, actions that convey a message (known as “symbolic speech”) like burning a flag, clothes that express an opinion or demonstrate faith, from T-shirts with slogans to religious headscarves, signing a petition, and money, in the form independent spending related to political campaigns. But despite these being recognized as coming under the banner of “freedom of speech” is it vitally important to understand that the scope of the First Amendment covers only actions by government (originally only Federal government but later amended to cover Federal, State and Local government).


Private businesses, organizations, and individuals are free to limit speech however they wish, as long as they aren’t violating contracts or other laws (such as anti-discrimination laws). Examples of some things that are NOT covered by the First Amendment include:

  • Private employers restricting the expression of political opinion in the workplace.

  • Private schools defining rules around messaging on clothing – such as banning T-shirts with undesirable messaging.

  • Private media companies deciding not to publish content that doesn’t align with the owner’s political views.

  • Web hosting companies refusing to host a platform that embraces white supremacy or allows calls to violence and insurrection.

  • Social media companies enforcing its policies on acceptable content by taking down posts or suspending users’ accounts.

The last of these is probably the most topical at the moment. Facebook, Twitter, Instagram or any similar social media platform can censor any person’s speech because they are private companies. All of these companies request that their users read and accept their Terms of Service prior to registering on a platform and communicate any changes to these Terms of Service when they are amended. If you violate these Terms of Service, the social media company has the right to suspend or permanently remove you from their platform.


The First Amendment protects against the government from censoring speech. None of these social media platforms are part of the government, so in the case where the twice impeached, former president Trump was permanently removed from Twitter and suspended from Facebook, he cannot claim that his First Amendment rights have been violated. In 2017, the Supreme Court cited:


“Under current law, social media companies are free to apply their private moderation policies to restrict users' access or ability to post content on their platforms.”


Free speech arguments cut two ways. While some people complain that social media companies violate their constitutional rights by taking down posts or suspending their accounts, the companies argue that it would violate their own free speech rights if the government tried to regulate their decisions about what to publish on the sites that they own. Not only that, but part of a Federal law known as “Section 230” protects social media providers from civil lawsuits for their good-faith actions to restrict access to objectionable content. (Another part of the law gives them immunity for content that users post on their platforms.)


Debates will continue over Big Tech’s ability to control online speech. Under current law, however, social media companies are free to apply their private moderation policies to restrict users’ access or ability to post content on their platforms.


According to a June 2020 survey, over half of US adults believed that social media companies are responsible for managing controversial and inaccurate content on their platforms. The majority of respondents stated that social networks should fact check social media posts and tag incorrect information, hide posts that encouraged violence, and delete or restrict accounts posting false information and hate speech. Only 11 percent of respondents thought it was the government's responsibility to fact check social media posts. The regulation of fake news on social media has been a topic ever since the US election in 2016. However, this topic has recently re-gained prominence after the suspension of Trump’s accounts.


The frequency of right-wing activists, white supremacists, and conspiracy theorists, particularly those perpetuating the Big Lie that the 2020 Presidential election was rigged or that the Covid-19 pandemic was a hoax being removed from some of the largest social media platforms has caused a rise in fringe media platforms being developed such as Parler, Gab and more recently the “My Pillow Guy” Mike Lindell’s platform called Frank. These are also not covered by the First Amendment, but it is likely that they have looser Terms of Service that will not evict users from their platform for hate speech or attempting to incite violence.


The situation as is, however, it not sustainable as more and more social media platforms come online, and disinformation is so widely spread. There is no doubt that it will soon be a hot topic for Congress to look at how these platforms can be better regulated. Another issue is the globalization of the platforms. Why, for example, would a user in Romania (for example) on a social media platform be subject to US laws regulated by the US Congress? The US Congress would only have power to regulate US social media companies and therefore it risks those companies moving to other countries with less intrusive laws and then we may go down the path of those platforms being blocked from certain countries – it’s a slippery slope that we almost went down with TikTok last year.


No doubt the Republicans will be bringing draft bills to Congress in the coming months, wounded from their leader being struck from the 2 largest platforms and some Democrats (such as Elizabeth Warren and Bernie Saunders) have some interesting ideas about how to deal with Big Tech and social media giants, focussing more on reducing the amount of power they possess rather than their ability to eject users who violate their Terms of Service.


It will be an interesting ride – but for those of us who abide by the Terms of Service and use it to meet like-minded people, share ideas and spread positivity (with the odd video of a cat chasing its own tail), we can just sit back and enjoy the show.


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