Free Speech, the First Amendment, and Social Media

Here’s a quick primer on the First Amendment of the United States Constitution, what it means for free speech, and how it applies to social media and other platforms for speech. Misconceptions abound since law can be confusing and because some actively disseminate false information. This short piece lays out the basics.

The United States Constitution is the foundation of all laws in this country. It establishes our system of government and puts limits upon what government can do. It created a system of checks and balances by establishing three branches of government — executive, legislative, and judicial. Our federal government is of limited powers (in theory), and any powers not specifically granted to it are reserved for the states and individuals. The Constitution does not say what private individuals and organizations can or cannot do (though other laws do).

Within the U.S. Constitution are Amendments, and the first ten are known as the Bill of Rights. These grant rights and freedoms to the people and restrict what the federal government can do. These restrictions have also been applied to state and local governments. Now on to our main topic, the First Amendment, which reads:

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.

Of course this “freedom of speech” protected extends past the spoken word and includes writings, art, and more.

In the centuries since the First Amendment was enacted, courts have weighed in many times about what it means, a legal evolution progressed. Thousands of people have been criminally prosecuted or civilly sued after they said or wrote something and they raised a First Amendment defense. Judges made rulings, these rulings were appealed and then other judges ruled. Occasionally, the U.S. Supreme Court, our country’s highest court ruled. We now have a significant body of law interpreting those forty five words of the First Amendment.

The law is clear that the government must not violate the First Amendment, nor be used as a tool to impinge upon rights guaranteed by it. This has implications for criminal and civil proceedings. In criminal proceedings, the full weight of government seeks to punish an individual. In civil proceedings, which are often between private parties, it is government that runs the courts that resolve these disputes.

It is helpful to think how any particular speech might fall into one of three categories: (i) fully protected free speech, from which no successful legal action (criminal or civil) can be brought, (ii) speech that might be civilly actionable (subject to a successful civil suit for defamation), (iii) speech that might be criminally actionable (subject to a successful criminal prosecution).

The line between these categories can be blurry. Any government restrictions upon speech must be “narrowly tailored” and “content neutral” to avoid violating the First Amendment, but not all speech is protected. Here are some examples of speech that might be the proper subject of a criminal prosecution:

Menacingly stating “Give me your wallet or I’ll kill you”.

Falsely shouting “Fire!” or “Bomb!” in a crowded theatre causing panic and injury.

Saying words that incite violence or a riot (or even the storming of the U.S. Capitol).

Civil lawsuits involving speech also face First Amendment scrutiny. A lawsuit (civil action) for defamation (libel or slander) will fail if the speech is true. Public figures face an additional hurdle because they must also show actual malice, that the writer knew the statement was false, or recklessly disregarded whether it might be false.

Thus the First Amendment limits how government can restrict speech, and provides freedoms to private individuals and entities about what they can say, or choose not to say.

Thus, it would be a mistake to say that the First Amendment is a restriction upon what individuals or private organizations can do. And yet it seems that many individuals make this mistake—including some who should know better.

Josh Hawley is a United States Senator from Missouri. He is also a Yale educated lawyer, former state attorney general and law professor. Despite these bona fides, he falsely claimed that the cancelation of his book contract by Simon & Schuster was a violation of the First Amendment. He was wrong, because the publisher is a private company, protected by the First Amendment not restricted by it. It is the publisher’s choice to print or not print. It makes no sense to argue that the First Amendment might obligate a private company to do a Senator’s bidding. Senator Hawley remains free to find another publisher or self publish his book, and any legal claim he might have would be grounded in contract law, not constitutional law. But chances are good that under the book contract, Simon & Schuster had ample cause to cancel publication. While the claim by a government official that a private entity violated his First Amendment right is ironic, that is dwarfed by its mendacity. He should know better, and likely does. By debunking his small lie about the First Amendment, we can better evaluate his greater lies about conspiracy theories and election fraud. A reckless disregard for the truth is evident.

On January 8th, Twitter suspended the account of soon to be former president Donald Trump, citing violation of their rules. Facebook did the same. Some mistakenly claim this too is a First Amendment violation, but that cannot be. Like Simon & Schuster, Twitter, Facebook, and other social media companies are not government actors, but private entities. The First Amendment exists to protect them from the government, not restrict them, nor make them obligated to do the President’s bidding. Trump accepted Twitter’s Terms of Service (as all Twitter users have). Those terms are a contract, he was bound by them, violated them (repeatedly), and was banned according to it. It is simply not a First Amendment issue (though other issues exist).

If social media platforms are not restricted by the First Amendment, are they subject to other laws or regulations? Undoubtedly, but that’s getting more complex and beyond the scope here. But think of the growing field of privacy law and Section 230 of the Communications Decency Act (47 U.S. Code § 230).

Social media platforms bring complicated issues. There is a tension between allowing anyone to say whatever they want versus creating rules and moderating the platform. Most would agree such platforms should take reasonable steps to reduce criminal activity, reduce incitement to violence, and even reduce the spread of conspiracy theories, propaganda, and disinformation.

There are also concerns about how social media monetize their platform, how they collect, use, and share user information. Users don’t pay for Twitter, Facebook, Instagram, LinkedIn or any of the other social media platforms, but that doesn’t mean it is free. As the saying goes, “If the service is free, the product is you”. All of these platforms seek to make money based upon information about their users. This is the subject of a growing area of regulation and law, and we should increase our awareness of the privacy policies we agree to, our privacy settings, and the companies who use our information.

Returning to lawyer and United States Senator Josh Hawley, ostensibly elected and sworn to serve his constituents and the U.S. Constitution. He has done some terrible things recently, among them was the tweet that falsely accused Simon & Shuster of a First Amendment violation. Was he simply ignorant of the First Amendment, echoing a misconception of many non-lawyers? Or was he trying to deceive and mislead about what the First Amendment really means? This small untruth provides context for his greater and more sinister lie. It would be best for this country if he would resign, but do not expect him to do the right thing. Voters must do their jobs to ensure that people like him are not elected in the future.

While I am a lawyer and I teach about law, I am far from being an expert in First Amendment and Constitutional law. This short article is for your introductory information but is not tailored to your circumstances, nor is it legal advice. Hopefully it makes some foundational concepts clear, and puts you on the road to better understanding.

See my website for a copy of this article plus additional references, starting at: https://johnbandler.com/free-speech-first-amendment-social-media

Posted 1/11/2021.

Cybersecurity, cybercrime prevention, law, some more. Attorney, consultant, author, speaker. Find me at JohnBandler.com