On January 7, Facebook and, by extension, Instagram, banned President Trump from using their services, at least until the end of his term in view of his “use of our platform to incite violent insurrection”; the next day, Twitter followed likewise, citing recent Tweets that “can be mobilized by different audiences…to incite violence” per their Glorification of Violence policy.

Some have celebrated this action as defense again misinformation and incendiary remarks; others have condemned it as an infringement on free speech via censorship. In the former camp, one user wrote, “Twitter banned Trump because he incited a violent mob of insurrectionists who ransacked the US Capitol and killed a police officer in an attempt to destroy American democracy”; in the latter camp, “This gives Facebook/tech/Zuck THE MOST POWER. If he can shut the president up/off he can shut any of us up/off.” (This post has received over 114,000 likes.)

My intention here is not to explore the appropriateness or inappropriateness, the morality or immorality, or the legality or illegality of President Trump’s social media bans specifically. (It does set a dangerous precedent, as Jack Dorsey, CEO of Twitter, admitted on January 13.) Nor is it to dig into the January 6th event, though it does warrant remarks at some point. Rather, I wish to investigate the interpretation of the First Amendment over the course of American legal history and of the oft-referenced Section 230 in the context of social media platforms.

The First Amendment to the Constitution, introduced in a slightly different form by James Madison to the House of Representatives in June 1789, 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.

Freedom of religious exercise and freedom of assembly without government intervention have relatively straightforward meanings. The freedom of speech clause, however, has incurred great debate since the ratification of the First Amendment, though its importance for a well-functioning democracy 1 is undeniable. Among the articles in question in this free speech controversy is whether there is some speech so hateful or harmful that it loses First Amendment protection. In general, the public overwhelming supports free speech, but has qualms about specific, potentially offensive opinions, such as hate speech against racial groups. (See the archive of reports on this topic from the First Amendment Center here.)

(c) 2017 Signe Wilkinson

Sir William Blackstone, who wrote the Commentaries on the Laws of England (1765-1769) that inspired university legal education in England and North America, spoke of freedom of speech and liberty of the press in the common law sense when he wrote that they were “indeed essential to the nature of a free state; but this consists in laying no previous restraints upon publications, and not in freedom from censure for criminal matter when published. Every freeman has an undoubted right to lay what sentiments he pleases before the public; to forbid this, is to destroy the freedom of the press: but if he publishes what is improper, mischievous, or illegal, he must take the consequences of his own temerity.”

Since Blackstone, the Supreme Court has recognized the First Amendment as protection of speech both within and beyond that assured by English common law. 2 Fiske v. Kansas (1927) and a series of cases following realized restrictions on state powers with regard to freedom of speech and the press, with the Supreme Court ruling in Near v. Minnesota (1931) that “the government could not censor or otherwise prohibit a publication in advance, even though the communication might be punishable after publication in a criminal or other proceeding.” Bridges v. California (1941) held that restriction of free speech by the State was not justifiable on grounds of mere “inherent” or “reasonable” tendency to disrupt judicial process.

In 1964, the Supreme Court decided in the landmark New York Times v. Sullivan case. L.B. Sullivan filed a libel action against the New York Times for featuring untrue statements in an ad supporting the civil rights leaders. The justices unanimously ruled that the evidence of a claim’s falsity was not sufficient to charge it as libel. Such a charge required evidence that the publisher acted with actual malice, i.e. with knowledge of its untruth or with disregard for the truth. In the controversial Brandenburg v. Ohio (1969) shortly after, the Court ruled that speech advocating illegal conduct was permitted under the First Amendment except where the speech is directed to incite “imminent lawless action” and is “likely to incite or produce such action.”

These various suits dealt with unconstitutional state laws relating to freedom of speech and the press. They concern themselves with the curtailment of government overreach into the free speech of the citizens – government including federal, state, and local following Gitlow v. New York (1925). Over the decades, these Supreme Court decisions have strengthened the First Amendment. The result is that today the First Amendment protects:

  1. speech, which includes written work, art, clothing, and other media of expression in addition to spoken word,
  2. from government censorship, which includes public schools, courts, and police officers in addition to lawmakers and elected officials,
  3. provided that your speech does not fall into an unprotected category (e.g. plagiarism, perjury, child pornography3)
  4. and/or that you do not fall into a special category (e.g. K-12 public school teacher, government official).

This page has concrete examples and relevant court decisions on the expressions that are and are not included in freedom of speech rights.

(c) 2015 Jack Ohman at the Sacramento Bee

The advent of the internet presented new challenges to speech. The U.S. Congress passed the Communications Decency Act of 1996 (CDA) to criminalize the distribution of indecent and obscene material – namely pornography – on the internet. Reno v. ACLU (1997) ruled the anti-indecency provisions unconstitutional per the First Amendment. Among the remaining pieces of legislation in the CDA is Section 230.4 The Electronic Frontier Foundation considers it “one of the most valuable tools for protecting freedom of expression and innovation on the Internet.”

Cybersecurity law professor Jeff Kosseff of the U.S. Naval Academy called Section 230 “the twenty-six words that created the internet“, referring to the specific §230(c)(1) “Treatment of publisher or speaker”, which says:

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

This provision frees providers of internet services (in the current debate, of social media platforms) from liability for what its users upload, post, stream, et cetera. The alternative would be constant moderation which, given the hundreds of hours of video and thousands of words of ideas shared on the internet every minute, is infeasible.

Where moderation is undertaken, Section 230 protects the provider or user from legal action if they “in good faith…restrict access to or availability of material [considered by them] to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.” Human rights technologist Sabrina Hersi Issa5 characterizes Section 230 as “[permission for] internet companies to moderate what other people put on their platforms – or not – without being on the hook legally for everything that happens to be there.”

The EFF notes that the vast majority of other countries, including other Western countries, don’t have these protections, so most major online services are U.S.-based. For social media platforms like Twitter and Facebook, Section 230 exonerates them from legal liability for user-created content and allows them editorial control. This second part is important. (With freedom comes responsibility.)

There’s an argument going around that in acting more like publishers and less like platforms, Twitter and Facebook dispense of Section 230 protections, but David Harsanyi at National Review argues otherwise, pointing out that Section 230 doesn’t make a publisher/platform distinction and that, even if it did, publishers are protected by the same principles as Section 230 for third-party content. The EFF agrees; their Senior Staff Attorney and Civil Liberties Director David Greene, a leading advocate for freedom of speech, explains that “the very purpose of Section 230 was to eliminate any distinction between those who actively select, curate, and edit the speech before distributing it and those who are merely passive conduits for it.”

There is warrant to question the moderation6 of social media platforms, especially since 1) the majority of Americans on both sides of the aisle suspect political censorship (moderation) by social media companies according to a survey of over 4,700 U.S. adults in June 2020 and 2) the moderation and bans do not seem to be equally applied (Ayatollah Ali Khamenei of Iran, for one, is still on Twitter as of writing). However, the social media moderation itself does not violate First Amendment freedom of speech rights or Section 230 as it stands now.

An investigation into the
  1. Not a direct democracy. The United States is technically a “constitutional republic” or “representative democracy.” For convenience (and word flow), I used the colloquial “democracy” to mean these terms.
  2. I describe these cases as an individual who is not an expert in law. This is not legal advice or counsel. I encourage you to read the cases at your leisure to better understand them yourself.
  3. This is a sad world. That’s all I have to say about that.
  4. President Trump released an executive order in May 2020 to limit the legal protection of Section 230, and in December 2020 there were talks of its repeal. Senator Lindsey Graham (R-SC) renewed proposals for repeal of Section 230 following his December 2020 bill for repeal/reform. A hearing chaired by U.S. Senator Roger Wicker (R-Miss.) on October 28, 2020, questioned whether Section 230 has outlived its usefulness and discussed its unintended consequences with the CEOs of Twitter, Google, and Facebook. President-elect Joe Biden and other Democratic leaders have also called for the revision or revocation of Section 230.
  5. Issa has a good review of what Section 230 can and cannot do and how technology companies have abused it, though her article is more biased than I favor. (I prefer information that is neither explicitly anti-Trump nor explicitly pro-Trump.) This article by Mike Masnick, founder and CEO of the Copia Institute, is less partisan.
  6. In the strict sense of the words, we’re talking about content moderation, not censorship.