[OPINION] Does the First Amendment apply to what you post on social media?

Photo by Thought Catalog on Unsplash

By Attys. Alexander Manglinong and Philip Lim Nulud

ON January 7, 2021, a day after the reprehensible violence occurred at the U.S. Capitol, Facebook and Twitter locked former President Donald Trump’s accounts.

Many people were up in arms and questioned how Facebook and Twitter could do that. People claimed that it was a violation of his freedom of speech. However, it was not.

Facebook and Twitter are private companies that are not required to provide anyone with their services or platform. Secondly, the First Amendment, which provides for the freedom of speech, does not apply.

When you create an account on Facebook, Twitter, or another social media platform, you agree to abide by their respective terms of service. Like it or not, you entered into a contract with Facebook. They will provide you with access to their platform, so long as you abide by their rules. For example, for Facebook, you agree to “not use [Facebook] to do or share anything: [t]hat violates the [Terms of Service], [Facebook] Community Standards, and other terms and policies…”

In Facebook’s Community Standards, there is a specific section as it pertains to Violence and Incitement. It states the following:

We aim to prevent potential offline harm that may be related to content on Facebook. While we understand that people commonly express disdain or disagreement by threatening or calling for violence in non-serious ways, we remove language that incites or facilitates serious violence. We remove content, disable accounts, and work with law enforcement when we believe there is a genuine risk of physical harm or direct threats to public safety. We also try to consider the language and context in order to distinguish casual statements from content that constitutes a credible threat to public or personal safety. In determining whether a threat is credible, we may also consider additional information like a person’s public visibility and the risks to their physical safety. (Emphasis added.)

Thus, if Facebook determines what you posted incites violence, it can remove the content, and/or disable your account. In this situation, President Trump’s speech was deemed to have incited the violence at the Capitol. Under Facebook’s terms of service, Facebook was entirely within their right to disable his account.

Facebook, Twitter, and other social media companies are not publicly funded. They are private for-profit corporations that can act as they deem appropriate. While Facebook and Twitter are platforms for speech, they are under no obligation to provide anyone with access to their platforms.

The Free Speech Clause of the First Amendment states that “Congress shall make no law . . . abridging the freedom of speech.” This language restricts governmental, as opposed to private, abridgment of speech. In other words, the First Amendment only applies to actions by federal, state, and local governments.

As an exception to this general rule, the First Amendment may

apply to private entities if they are considered “state actors.” Under the so-called “state-action doctrine,” private entities can be subject to First Amendment constraints in only a few limited circumstances—such as when (1) the private entity performs a function traditionally and exclusively reserved to the government; (2) the government compels the private entity to take a particular action; or (3) the government acts jointly with the private entity. With regard to the first category, U.S. Supreme Court has explained that very few functions are both traditionally and exclusively reserved to the government. Such functions include, for example, running elections and operating a company town.

The First Amendment does not apply to Facebook and Twitter because they are private companies and not state actors under the state-action doctrine. They operate separately and apart from government, and they were not compelled by the government to lock former President Trump’s accounts. Further, their primary function — namely, the operation of an online social media platform — has not been traditionally or exclusively reserved to the government.

The primary function of Facebook, Twitter, and other social media platforms may be viewed more broadly as the operation of a forum for speech. On this point, the government has traditionally and exclusively operated public forums for speech. But as the U.S. Supreme Court explained, a private entity can- not operate a public forum because it is not a state actor. Public forums, by definition, are forums for speech provided by the government. A contrary rule would effectively strip private companies of their ability to regulate their properties whenever they opened them for speech.

In short, Facebook and Twitter were within their contractual and constitutional rights to lock former President Trump’s accounts. They, like other social media platforms, are private companies that may censor or suspend user accounts based on the user’s failure to abide by their terms of service and policies. As private entities, they are not subject to the same free speech limitations under the First Amendment that generally apply to federal, state, and local governments.

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The opinions, beliefs and viewpoints expressed by the author do not necessarily reflect the opinions, beliefs and viewpoints of the Asian Journal, its management, editorial board and staff.

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Alexander Manglinong is an attorney at Sanders Roberts LLP in Los Angeles, where he practices business, employment, and general liability litigation. He serves as the secretary on the Board of Governors of the Philippine American Bar Association (PABA).

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Philip Lim Nulud is an attorney at Buchalter in Los Angeles, where he specializes in intellectual property law. Many of his clients are well-known fashion brands, who he represents in IP protection, strategy, enforcement, and licensing matters worldwide. He is currently a director of the National Asian Pacific American Bar Association (NAPABA), the immediate past president of the National Filipino American Lawyers Association (NFALA), and a past president of PABA. He has been named as one of the Most Influential Minority Attorneys in Los Angeles by the Los Angeles Business Journal.

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