Over the last few months, social media companies like Facebook, YouTube, and Twitter have banned controversial figures like Louis Farrakhan and Alex Jones from their platforms. Unsurprisingly, politicians and pundits from across the ideological spectrum, as well as the general public, have criticized the action of the social media giants. Even the Trump administration has added its voice by launching a website that provides people a platform to decry political bias.
However, are social media companies legally obligated to provide people of all viewpoints a platform? Some say that they are and that denying access to controversial speakers is a violation of the First Amendment. Some even suggest that the government should intervene to correct this situation.
But the First Amendment deals specifically with government censorship of speech, and social media companies aren’t the government. Under the First Amendment, Facebook, YouTube, Twitter, and all the other social media sites are free to censor or ban provocative points of view from their platforms for the sole reason that they are private companies.
Whether social media companies can censor or ban speech on their platforms is a separate debate from whether they should censor speech on their platforms. We won’t address the latter debate here. But in terms of the First Amendment, the constitution is clear. The First Amendment guarantees not only your right to speak but also your right not to speak. You have the right not to be forced to associate with speech you disapprove of. In other words, the First Amendment protects the right of Facebook and all social media companies to deny access to speakers they take issue with for whatever reason.
Some would argue that social media platforms are like modern-day public squares and must give everyone the chance to be heard. Just recently, however, the Supreme Court has restressed that private property owners who allow speech within their property have the right to ban speakers who say things they disagree with. These properties may have opened up to speech, but that does not automatically mean that their owners are required to give every person with something to say access to them. No matter the context, it would be absurd to suggest that the government can force a property owner—the social media companies in this case—to let others access their property freely.
Others argue that Facebook, Twitter, and YouTube are monopolies, so the government should break them up or, at least, dictate how they operate. Calling them monopolies, however, is inherently flawed because the prominence of social media companies constantly rises and falls. Some platforms, like Facebook, may be more popular today, but platforms like Myspace and Friendster were the most powerful platforms in years past. No one company or platform has ever—or will ever—entirely control the social media market.
If anything, social media is a free market. YouTube, for example, cracked down on videos featuring guns a few years ago. So how did firearms enthusiasts respond? They launched Full30.com, an alternative platform featuring gun-related videos. In response to the perceived anti-conservative bias of Facebook and Twitter, some users have created alternative social media platforms, like Parler.
Finally, some pundits have argued that if Facebook or Twitter can ban some offensive or controversial material, then they should be made to answer for any other inappropriate content that does get published on their properties. While this argument is not a breach of the First Amendment, it would make Facebook or Twitter extremely wary of multimillion-dollar defamation lawsuits to the point where they would no longer be able to provide a space where ideas can be shared freely.
The First Amendment assures us that the government cannot and should not control what people say or where they say it. People are endangering the right to free speech when they demand the regulation of social media by the government. Every time others pressure the government to step in when private people or companies say or do things people don’t subscribe to, they are, in effect, violating the ideal that is enshrined in our Constitution.
This article was originally published by the Pacific Legal Foundation. It is reprinted with permission.
Daniel M. Ortner
Daniel M. Ortner joined Pacific Legal Foundation in the fall of 2018, focusing on the First Amendment, property rights, economic liberty, and curtailing the overreach of the administrative state.