The First Amendment prevents the government from limiting free expression, however, it does not restrict private entities from doing the same. This is particularly notable as social media platforms continually expand their global reach. In this article, we’re going to explore the intersection of social media and the First Amendment right to free speech.

Let’s get started! 

The Public Forum Question

Individuals who challenge the right of social media platforms (SMPs) to regulate user speech typically offer the justification that Twitter and Facebook perform the same functions as a public forum. This reasoning is fundamentally flawed, and numerous courts have dismissed alleged First Amendment violations that rely on this argument. This is because SMPs are not public forums, and therefore they can’t be subjected to free speech protections.

While social media sites do allow users to share opinions and discuss community issues, they don’t cease to be private entities merely by hosting the speech of others. This principle holds true for any private site that serves a temporary public function, such as a concert hall or a comedy club.  A designated public forum can only be created when the government intentionally opens a nontraditional forum for public discourse. SMPs do not fulfill this requirement.

Editorial Control

So, if SMPs aren’t considered a public forum, can they be held liable for all posted content? The answer to this question comes from Section 230 of the Communications Decency Act (“CDA”). 

Under Sec. 230(c)(1), internet service providers are immune from lawsuits that attempt to hold them liable for the user content posted on their sites. Like newspapers, SMPs can exercise editorial control to remove or restrict access to content — particularly content that is deemed “obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable.” 

As further defense from civil liability, SMPs often use their Terms & Conditions policies to clarify that they can remove violent, obscene, or offensive content and can ban users who post or promote such content. In recent years, there have been numerous instances where SMPs have banned violent extremists and terrorist groups. 

Final Thoughts

Thanks for reading! We hope we’ve been able to clarify how the First Amendment right to free speech applies on social media. Major social media platforms are permitted to remove offensive content in accordance with their policies without fear that doing so would constitute a First Amendment violation. In fact, Section 230 ensures that users who post violent and obscene content can be banned from the platform and may even expose themselves to civil liability. If you enjoyed this article, let us know on social media! 

Please don’t hesitate to contact us with any questions or concerns. At First Legal, we’re here for you from File Thru Trial™!