A few days ago, shortly after the unprecedented invasion of the United States Capitol by a horde of unrestrained Trump supporters, Twitter announced that it was banning President Donald Trump from Twitter. After more than 36,000 tweets in four years, with 88 million followers, Trump was tossed, perhaps permanently, from his favorite social media megaphone.
At approximately the same time and for the same reasons, Trump was also banned at least temporarily from Facebook.
Trump’s supporters immediately raged that these actions by Twitter and Facebook violated the First Amendment. Is this assertion correct? The answer is simple: No.
Like all of the guarantees of the Bill of Rights, the First Amendment’s fundamental guarantee of “freedom of speech, and of the press” limits only the actions of the government (federal, state and local), not the actions of private individuals, organizations or businesses. Just as a private enterprise cannot violate your constitutional right not to be subjected to “unreasonable searches and seizures,” just as a private enterprise cannot violate your constitutional right to the “free exercise of religion,” and just as a private enterprise cannot violate your constitutional right to terminate an unwanted pregnancy, so too is it legally impossible for Twitter or Facebook to violate your — or Trump’s — constitutional right to “freedom of speech, or of the press.”
Our nation faced a somewhat similar question with the advent of radio in the 1920s. At that time, with only a small number of frequencies available in any location, the fear was that a small number of wealthy individuals could buy up all the frequencies in a city such as Chicago and completely dominate this powerful new means of communication and then distort and corrupt our democracy.
With that concern in mind, Congress enacted the Communications Act of 1934, which established the Federal Communications Commission and granted it broad power to regulate the broadcast spectrum. The FCC then adopted the Fairness Doctrine, which imposed on radio and television broadcasters the requirement that discussion of public issues be presented in a fair and balanced manner.
In 1960, the Supreme Court upheld the constitutionality of the Fairness Doctrine, noting that “there is no sanctuary in the First Amendment for unlimited private censorship operating in a medium not open to all.” The Fairness Doctrine remained in effect until repealed by the Reagan administration in 1987.
The question we face going forward is whether social media should be subject to similar government regulations.
Should Facebook, Twitter and other major social media platforms be required by law to operate in a fair and balanced manner? Should they be required by law to function in a manner consistent with the First Amendment?
Should they be required by law to ensure that individuals are exposed to both sides of a question in a responsible and evenhanded manner?
Should they be constrained from taking down material that is protected by the First Amendment? This is a fundamental question our nation must wrestle with in the future.
If we move in that direction, what would that tell us about the decision to remove Trump from Twitter and Facebook? Would it be constitutional for the government to remove Trump from social media because of his past and recent posts?
Were his consistently and dangerously false posts about the outcome of the election and about the protest/riots at the U.S. Capitol protected by the First Amendment, or did he go beyond the bounds of the First Amendment by intentionally inciting a likely and imminent seditious riot? That would be the critical question.
Geoffrey R. Stone is the Edward H. Levi Distinguished Professor of Law at the University of Chicago.