Is There a First Amendment Right to Social Media?

Does the First Amendment's free speech guarantee apply to our access to social media? We asked constitutional law professor and the long time president of the ACLU, Professor Nadine Strossen.

In short, the answer is no. While the Supreme Court has found that social media have become an essential forum for public speech, the First Amendment itself is a restriction on the government and not on the private businesses, such as those that own the leading social platforms. In other words, the outcome is imperfect, while the platforms serve an important role, there are no constitutional rights to access them. In fact, the platforms themselves have First Amendment protections against the government meddling with their choices on who and how one communicates using their platforms. Prof Strossen explains, but also points to a recent SCOTUS case that suggests that the high court has its eye on social media and has concerns regarding the freedom of expression. Watch to learn more.

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TRANSCRIPT

Many people are complaining about being kicked off social media platforms, either because of particular posts or because of a series of posts. And the question arises, do you have a right not to be kicked off Facebook, Twitter, etc.? My name is Nadine Strossen. I am a professor of law at New York Law School, and for many years, I was the head of the American Civil Liberties Union.

So the answer to the question, "Do you have a right not to be kicked off a social media platform?" is no! You have no such right. Many people are shocked to learn that the First Amendment free speech guarantee, along with all constitutional rights, only protects us against the government. So, if the government interferes with your freedom of speech, you can bring a First Amendment lawsuit to challenge that. And that's true whether we're talking about a federal government official or a state or local government official. But guess what? Facebook, Twitter, the other social media platforms are not the government. They are private sector entities, and therefore, they have no First Amendment obligation to protect your freedom of speech. To the contrary, they have their own First Amendment rights—their media right. So, just as the New York Times or CNN or any other traditional media platform has no obligation to host your particular message, the same is true for social media. And this is of great concern because as a practical matter, the social media have become the dominant platform for the exchange of information and ideas. In fact, the U.S. Supreme Court recognized in a unanimous opinion in 2017 that the social media platforms are the most important platforms for the exchange of information and ideas and communication, not only among all of us as individuals with our friends and family members, but also between us and government officials and politicians. So, it's really important not only for our individual freedom of speech to be meaningful, but also for our rights as citizens in a participatory democracy to have equal access to social media platforms. That is why so many people, so many government officials, so many human rights agencies and activists are thinking very hard and working to implement other ways to protect equal and fair access to social media platforms for all of us, even if our ideas are unpopular or controversial. So, in a nutshell, do you have any constitutional First Amendment free speech right to air your views on any social media platforms? The answer is no.

My name is Nadine Strossen, professor of constitutional law, former head of the ACLU. Thanks for watching TalksOnLaw.

[andiecook]

Very clear video! Very relevant to point out that people are seemingly confused with freedom of the press law and how it relates to social media and not just traditional media outlets.

[jjkoser]

Isn’t it a conflict of interest that some of these big tech companies that provide social media outlets donate large sums of money to “certain” political parties?

[TRD-]

Just had a three day long argument in a comments section about this. I quoted many legal experts against my opponent. His response was to quote someone saying that legal experts have a tendency towards bias. Well, we all have that. He couldn't identify their biases though. Just expected me to accept that the probability of bias meant they were all wrong, and his unqualified logic correct. I couldn't get him to see that there is a difference between freedom of speech and freedom of publication, and that he was actually against the 1st amendment because he didn't believe in a free press. Allegedly a social media corporation is not a corollary of a press, and it has to let everyone use it, simply because he believed that is what it is for. It's coming to something when a socialist Englishman has to explain the constitution to an American whilst defending the rights of capitalism. People like him would lose their whole identity if they had to admit that they didn't understand the 1st amendment.

[ray]

maybe it's time to change that because they hold so much power over communication especially in a pandemic. Pruneyard Shopping Center v. Robins which took place in the supreme court over California's constitution giving affinitive right to free speech (silicon valley is located in CA)

[YourOnlyHope.]

Well good to know! Now that we know that government agencies where doing just that!

[TheElvenKeys]

so many people are okay with it because they're only banning people who are on the "other side"

[BigScewleo]

Great video. Just being straight up about it.

[maryannemacisaac]

Great content! This is very helpful :)

[jasonrafael]

Just because something is, doesn't mean it's as it should be.

I personally believe we need a constitution to protect us from our corporate overlords. People shouldn't be punished for their speech by losing their jobs (unless the speech was made on the job (unprofessional) or in the name of a company), and people should have a right to their speech on speech platforms and platforms should have a right to exist on media outlets.
Inciting violence is not a part of free speech, and so that should, of course, be banned and dealt with as it would be outside of social media, but hate speech, ignorant speech, no matter how much I disagree with it, is. free speech.

Believing in Free Speech means you believe in it beyond the constitution.


But then again, on the other hand, however, though... so many delusional people keep proving that "better speech" (whether evidence based, or the pointing out of a lack of evidence of baseless assertions, or both) doesn't do anything to combat false claims to people who have their mind made up that all contradicting speech is fake by default.


Too many people suffer from a combination of appeal to authority, ad hominem fallacy, and confirmation bias. "I believe my source without evidence because their word is the ultimate authority because they confirm my biases, and I don't believe contradictory information, even with evidence, or even when they point out I don't actually have evidence, because they're fake news as far as I will view them since they don't confirm my biases!"

[Atr]

Community guidelines are essential, else we could have some pretty grievous looking posts on social media. Thanks for the explanation, i wish conservative American citizens would understand this, they need true information fed to them by a spoon

[SanitysVoid]

Are these social media platforms publishers or town hall forums? They have to pick one they can't eat the cake too.

[tigerpisces]

It is interesting that the parents are not mindful to the safety of their children. Simple solution to requiring mature adults on Facebook, Twitter, Instagram and TikTok. Require subscriptions to get adult only access to all social media with phones numbers, addresses and credit cards. That should fix the free aspect of social media and if Jack and Jill are allowed on social media mom and dad can pay for it and shut the Congress out of this media jungle.

[dragonf]

The constitution applies to all American citizens not just the state or federal government.

[dragonf]

Yes there is a 1st amendment rights to free speech on the Internet. 1st amendment protects all speech, text, print, text, comment, tweet, post, are all forms of speech therefore protected under the 1st amendment.

[dragonf]

Title 18 U.S.C. section 241 conspiracy against rights.
If two or more person's conspire to injure, oppress, threaten, or intimidate any person in any state, territory, commonwealth, possession, or district in the Free exercise or enjoyment of any rights or privileges secured to him by the constitution or laws of the united states, or because of his having so exercised the same...

They shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping, or an attempt to kidnap, aggravated sexual abuse, or an attempt to commit aggravated sexual abuse, or an attempt to kill, they shall be fined under this title or imprisoned for any term of years or for life or both, or may be sentenced to death.

[FlawdaBoy]

Yes I thumbs up the video it was a great video overall thank you for the information. It’s just sad that at one time I remember going on Facebook and being able to sell a gun or items associated with the gun and post anything I wanted to without getting flagged for it. But now I can’t do that without getting flagged. The only platform right now are you don’t get flagged is Snapchat because Facebook doesn’t owns that one

[dragonf]

Title 18 U.S.C. section 242 deprivation of rights under color of law.
Whoever under color of any law, statute, ordinance, regulation, or custom willfully subjects any person in any state, territory, commonwealth, possession, or district to the deprivation of any rights, privileges, or immunities secured or protected by the constitution or laws of the united states...

Shall be fined under this title or imprisoned not more than one year, or both; and if bodily injury results from the acts committed in violation of this section or if such acts include the use, attempted use, or threatened use of a dangerous weapon, explosives, or fire shall be fined under this title or imprisoned not more than ten years, or both; and if death results from the acts committed in violation of this section or if such acts include kidnapping, or an attempt to kidnap, aggravated sexual abuse, or an attempt to commit aggravated sexual abuse, or an attempt to kill, they shall be fined under this title or imprisoned for any term of years or for life or both, or may be sentenced to death.


A policy, terms of service is a custom applicable under title 18 U.S.C. section 242.

[zachocracy]

_PACKINGHAM V N CAROLINA SUPREME COURT_ defines social media as a **public square** where 1st amendment rights are applicable.

This case was to defend a sex offender's right to have social media access. However these social media publishers are literally getting away with unlawful actions.

[lukefox]

Its time for the supreme court to rule that the first amendment applies to private companies as well

[destinypreston]

I find it a testament to the intelligence that no longer exists in this country, that this video only had 143 likes and 78 comments yet, everyone is aware that we have kids eating tide pods and snorting condoms. A Hollywood harlot can endorse a new water bottle and the crowd goes wild. Needless to say, these recent generations are nearly completely depleted of those who care about their constitutional rights, becoming a scholar or educating themselves on something other than being an influencer.