What the First Amendment Actually Means Online

Having a debate about the First Amendment in law school was never something that interested me. For some reason, everyone else was always energized by the idea of debating the contours of permissible expression, or what constituted the prior restraint on the press, but I always preferred structure and process-driven questions about federalism, the Administartive Procedure Act, or the Federal Rules of Civil Procedure. If you’re wondering if that meant I was considered a weirdo law nerd even among other weirdo law nerds, then I encourage you to re-read the first two sentences of this paragraph to get your answer.

My professors, after I would ask literally anything in class.

Ah, but how the times have changed. Okay, they haven’t; I’m pretty much the same way now. But after such a long amount of time focused on the internet, privacy, and appropriate uses of data online as part of my practice, the First Amendment and related concepts are square in the middle of much of what I do. I cut my teeth as a litigator doing work on the Digital Millennium Copyright Act, and I advise on Section 230, the CFAA, and the SCA all the time.

So you can imagine how thrilled I am that the current debates around expression online have turned to a particular area of focus for me, as we ponder what Twitter might be like under Elon “I Love Free Speech” Musk. I’m also so relieved that everyone is having reasoned, thoughtful discussions about what it means to regulate speech in a non-governmental forum that nonetheless has public policy implications.

The ostrich actually knows a lot about the Free Exercise Clause.

The First Amendment Defies Easy Explanation, Except When it Doesn’t

So let’s make one thing clear – the hot takes you’re reading about what the First Amendment means are almost always wrong, because even among lawyers there’s a huge knowledge gap. Most people on Twitter are saying things like “you can’t should ‘fire’ in a crowded theater'” and smiling about how much they understand the law. Except that phrase — which comes from an awful, and overruled, Supreme Court decision — hasn’t been the law for more than half a century, and fundamentally misses the important developments of the internet age.

So how do you filter out the noise about what’s protected speech, what’s bannable speech, and who can make the decisions? You need to start with the basics. The first point to grasp is that figuring how the First Amendment applies is extremely complicated, involves dozens of Supreme Court cases, and takes years to understand.

The second point is that figuring out to whom the First Amendment applies takes effectively no time at all: it applies to governments, and not private actors. In other words and in virtually all cases, unless a federal or state government is involved, there are no First Amendment issues. That means that even if you got a massive bankroll and pulled Atticus Finch, Saul Goodman, and Jackie Chiles in a room to write a complaint over a First Amendment violation, but you wanted to sue Twitter or Facebook, you’d be out of luck.

BETTER CALL SAUL: Season 4 Discussion (No Spoilers ...
Yeah the uh, the flag doesn’t really change anything, Saul.

“But I keep hearing so much about public forum, and my posts on Twitter are public, doesn’t that count?” No. No it doesn’t. This is one of those simple instances where a lawyer can give you a flat, clean, clear answer, and the answer, just to repeat, is this:

No matter how many people join a social media network, unless the network is controlled by a government, the network has no obligation to follow the First Amendment.

“But,” you might contest, “social networks have huge amounts of political power, and if they silence one viewpoint over another they’ll give too much power to the other views!” Ah, now we’re getting somewhere. Yes, it’s absolutely true that if a social media network engaged in biased conduct, it would, effectively, give a privileged position to those views it prefers and a disadvantaged position to those it didn’t. The issue, though, is that doing that is entirely legal and doesn’t in any way violate the First Amendment.

Private Actors, Public Consequences

With an exception so rare that it doesn’t bear mentioning, when a private entity sets the ground rules for what you can say on its premises, you more or less have to follow their rules. It’s true that the First Amendment is highly contextual and depends on what you’re saying and where, private actors don’t need to be as concerned. For handy reference, take a look at our Context-o-Meter.

Patent pending.

Graded by context, subject, and risk, you can see how certain things will almost always be fine and other will likely end with Christmas ruined, again. If you think about what you can say at the office, you get a good feel for how private actors with a lot of power (that is, your employer) can control what is said and done on their premises. You wouldn’t expect that you could walk into the cafeteria and shout hate speech or stir up a fight without consequences. And let’s not even get started about what Nana would do.

The mistake people seem to be making is treating Twitter or Facebook like they’re the government, and putting them in column one. The reality, though, is a lot more like this:

Not so mellow yellow

Are there exceptions? Of course. If you’re tweeting in your official capacity as a representative of your employer, they can exercise control over your posts. But that’s not much of a change from our cafeteria example above and, in addition, companies have First Amendment rights, too, and so they can control what’s said in their name. And, yes, if you live in a “company town” where your employer owns the real estate, the homes, the sidewalks, etc, they owe you First Amendment rights. But you don’t live there, so it’s irrelevant, and the Supreme Court has made clear in rulings — as recently as two years ago — that Facebook and other social media networks don’t have nearly the kind of quasi-governmental power necessary to trigger the First Amendment.

What Does Any of This Mean?

There are two important takeaways from this:

  1. We have the right to free speech, but we have no entitlement to a platform on social media. The First Amendment doesn’t apply to private actors.
  2. We have the right to hold government accountable if it tries to curb our speech, but we have no right to do the same to private entities

And here are two variants on the rule that are crucial to know as well:

  1. If a social network starts editing your posts, rather than simply deleting them for violating the ToS, their protection under the controversial Section 230 of the Computer Decency Act go away, because they have become a publisher of content, and not merely a forum for it.
  2. If a social network selectively deletes posts that do not violate the terms of service (e.g., they delete every post that supports abolishing the death penalty) that’s conceivably a breach of contract that would potentially permit a lawsuit.

Will these four points answer every question about free speech on the Internet? No. But they’ll keep you far closer to the right answer than what even some bluechecks are saying, and being mindful of what you put on social media is a lesson that we probably all need to mind more carefully. After all, what would nana say?

“So I says to him, I says, ‘kunckle up, tough guy.'”

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