On Friday, January 8, 2021, Twitter banned President Trump’s @realdonaldtrump and @Potus45 accounts in the wake of his statements made after the Save America Rally and the riots at the U.S. Capitol two days prior. Facebook and Instagram also banned his accounts until at least the presidential transition is completed out of concerns that Mr. Trump was using his social media presence to encourage violence and insurrection. After these bans, President Trump and several of his supporters cried foul and stated that these social media companies violated his First Amendment rights to free speech. Is this true? Can private companies be held accountable for violating free speech rights guaranteed by the U.S Constitution?
Let’s look at the plain language of the First Amendment:
- “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.”
On its face, the First Amendment to the United States protects its residents from infringement by Congress on the right to free speech, but does not specifically curtail anyone else. In Gitlow v. New York, 268 U.S. 652; 45 S.Ct. 625; 69 Led 1138 (1925), the U.S. Supreme extended and incorporated the First Amendment’s provisions protecting freedom of speech by way of the Fourteenth Amendment to apply against the governments of U.S. states. In Raymond v Chicago Union Traction Co., 207 U.S. 20; 28 S.Ct. 7 (1907), the U.S. Supreme Court held that municipal ordinances and other local government action (e.g. from a board of equalization) were also subject to the restrictions against infringing on protected First Amendment speech. There is no question that the First Amendment is applicable to any governmental unit in the United States.
How about private actors? In Marsh v Alabama, 326 U.S. 501; 66 S.Ct. 276; 90 L.Ed. 265 (1946), the plaintiff, a Jehovah’s witness, was distributing religious literature on the sidewalk in Chickasaw, Alabama, which was a company town wholly owned by a private corporation. The town policeman was a deputy from the county sheriff’s department paid by the private corporation. The policeman warned the plaintiff she needed a permit to distribute the literature (per company rules) or she would have to leave. She refused and was arrested, tried and convicted under Alabama’s trespassing laws. She argued on appeal that the trespassing statute could not be applied against her because it violated her First and Fourteenth Amendment rights. The State of Alabama upheld the conviction and held that the title to the sidewalk was in the private corporation’s name so the statute was applicable against her. The U.S. Supreme Court reversed the conviction on the grounds that the private corporation was performing public functions (e.g. the “business block” in the town), so the constitutional protections apply. “Whether a corporation or a municipality owns or possesses the town, the public in either case has an identical interest in the functioning of the community in such manner that the channels of communication remain free.” 326 U.S. at 507. This company town did not function any different from other towns and the sidewalk was located in the community shopping center that is freely accessible and open to the public to use and pass through. “The managers appointed by the corporation cannot curtail the liberty of press and religion of these people consistently with the purposes of the Constitutional guarantees, and a state statute, as the one here involved, which enforces such action by criminally punishing those who attempt to distribute religious literature clearly violates the First and Fourteenth Amendments to the Constitution.” 326 U.S. at 508. In this instance, the First Amendment applied to a private actor doing public functions.
However, in Lloyd Corp. v. Tanner, 407 U.S. 551; 92 S.Ct. 2219; 33 L.Ed. 131 (1972), the U.S. Supreme Court declined to extend this same protection to a private shopping center. In that case, the plaintiffs were distributing anti-war handbills at a mall that was open to public use but owned by a private company. Security guards asked the plaintiffs to leave or else they would be arresting for trespassing. Plaintiffs filed suit for a declaratory judgment that they could not be excluded from distributing literature in a public place just because it was privately owned, much like the company town in the Marsh v. Alabama decision. The U.S. Supreme Court found that the analogy was not the same and that the private corporation’s property rights were superior here. The plaintiffs could have distributed their handbills in “any public street, on any public sidewalk, in any public park, or in any public building.” Their First Amendment rights were not infringed in this circumstance.
These series of cases led to the development of the state-action doctrine where a private entity may be considered a state actor when it exercise a function “traditionally exclusively reserved to the State.” Jackson v Metropolitan Edison Co., 419 U.S. 345., 352 (1974). However, very few functions fall into this category. While the U.S. Supreme Court has found that this covers supervising a company town or running an election, this has not been extended to other “non-traditional” functions such as running sports associations and leagues, administering insurance payments, operating nursing homes, providing special education, representing indigent criminal defendants, resolving private disputes, and supplying electricity.
In Manhattan Community Access Corp. v. Halleck, 587 U.S. __; 139 S.Ct. 1921; 204 L.Ed.2d 405 (2019), the U.S. Supreme Court tackled the issue of whether a public access television station was a state actor or a private entity. In that case, a public access channel restricted access to a plaintiff to air a film on its platform due to its content. The plaintiff sued and claimed its First Amendment rights were violated and the public access channel was filling the role of a state actor. The U.S. Supreme Court found that the public access channel was not a state actor in this case because managing public access television is not a traditional function reserved to the state, and the fact that “[a] private entity… who opens its property for speech by others is not transformed by that fact alone into a state actor.” The state-action doctrine did not apply here.
This decision holds that First Amendment constraints don’t apply to private platforms that host speech such as a public access channel. This is widely held by legal commentators to mean that First Amendment constraints would also not apply to social media platforms such as Facebook, Twitter, Instagram or SnapChat. In short, social media companies have the right to regulate the kind of speech uttered on their platform and, as a result, have the right to ban certain speech or even certain users as they see fit.
Twitter is clearly not a governmental entity that is, per se, constrained by the First Amendment. Twitter is also not performing a traditional function reserved to the state by hosting an online platform where users can exchange speech with one another. This means that Twitter’s act of banning President Trump from its platform does not infringe on his First Amendment constitutional protections. Mr. Trump is free to join a different social media platform that is willing to host his speech or even launch his own social media platform that operates under his own rules and policies. With his own platform, Mr. Trump could even choose to restrict speech or ban accounts that he found unpalatable without violating the First Amendment rights of the users he affected.
In sum, social media companies are not bound by the limitations of the First Amendment, and the outcries of Mr. Trump or his supporters that their rights were violated due to these bans do not have legal merit. Despite being only forty-five words, the First Amendment of the U.S. Constitution is shaped by over two hundred years of judicial interpretation that affected its scope and application in several ways (sometimes counterintuitively). A skilled lawyer can assist you in determining how the First Amendment applies to your unique situation.
If you have further questions or need legal representation, then do not hesitate to contact the experienced attorneys at Kershaw, Vititoe & Jedinak PLC for assistance today.