Free Speech, the First Amendment, and Social Media

by John Bandler

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 which 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, and not all speech is protected by the First Amendment. 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 perhaps 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.

However, 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 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 impressive legal 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. The publisher has a choice whether to print or not. It is nonsensical to argue that the First Amendment obligates 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 need to be grounded in contract law, not constitutional law. His legal claim would likely fail, because 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.  [Update: Sen. Hawley did indeed find another publisher for his book.]

On January 8th, Twitter suspended the account of then soon-to-be former president Donald Trump, citing violation of their rules. Facebook did the same. Some mistakenly claim this also constituted 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 a 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 many other issues do 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 some 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. Once we agree upon some basic facts and legal principles, we can have a reasonable debate about how that should be done.

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 (e.g. after the November 2020 presidential election), among them was the tweet that falsely accused Simon & Schuster 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? His experience indicates it is the latter. This small lie provides excellent context to evaluate his greater and more sinister lies. It would be best for this country if he would resign, but he will not do so. 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.

Additional reading

  • Building Better Consumers and Voters  My short article about what we need to do to get better at learning facts, putting aside disinformation, and making better choices about who leads our country.

A version of this article was posted to Medium at https://johnbandler.medium.com/free-speech-the-first-amendment-and-social-media-4c66930155a9 (though not kept as up to date).

Originally posted 1/11/2021. Updated 2/19/2021.