“They can’t do that!” was the most often heard objection after Twitter and Facebook announced permanent bans on Donald J. Trump who used the social media platforms to fuel an insurrection on the very government he headed. His words fueled a deep-seated resentment from a cross section of Trump supporters who streamed to the nation’s capitol building and broke in, trashed the historic icon, and some hunted down legislators with murder on their minds.
“But the First Amendment,” many cried out after hearing that Trump had been dispatched from his favorite megaphones. “He has a right to free speech! They can’t block that!”
Yes, they can.
The day after the bans were put in place, former Lieutenant Governor Bill Bolling, who teaches government and civics classes at universities around the Commonwealth, took to Facebook to answer the question of First Amendment rights and what they entail. He wrote:
Facebook and Twitter have suspended President Trump’s accounts. Facebook has done the same to State Senator Amanda Chase. Some say this is an appropriate, necessary and overdue action. Others say that it is an infringement on the First Amendment right of free speech. Which is it?
I’ll not weigh in in whether these actions were warranted or not, but I will offer a brief analysis of how the First Amendment enters into this discussion, or in this case, doesn’t enter into this discussion.
The First Amendment was intended to prohibit the government, or so called “state actors,” from infringing on the right of any citizen to engage in free speech. The government cannot prohibit anyone from speaking out against the government, public policies imposed by the government, elected officials, etc.
But the question here is whether or not the First Amendment applies to non state actors, or private companies, like Facebook and Twitter. The short answer is, it does not.
In the 2019 case of Manhattan Community Access Corporation, et. al. vs Halleck, et. al., the United States Supreme Court, in a 5-4 decision, ruled that First Amendment protections do not apply to private sector entities. In a decision written by Justice Brett Kavanaugh, the court’s conservative justices ruled that merely providing a forum for speech wasn’t enough to become a “state actor” and secure the protections of the First Amendment.
So, regardless of how you feel about the appropriateness of the decision of Facebook or Twitter to suspend accounts from people like President Trump, Senator Chase, or others, they are within their legal rights to do so.
As consumers, if we do not like their decision our option is to take our business to other social media platforms. Like it or not, private companies get to set their own rules.
Well-known campaign guru and businessman Brett Feinstein weighed in on the discussion to clarify the difference between public utilities and private companies:
If you are a true and consistent conservative, you believe in free markets, private enterprise and rights of association. In a free market, a business generally has the ability to set its terms of service. Customers have the right to choose their provider or have no provider. And both customer and business have the right to choose who they associate with, although businesses cannot discriminate against protected classes.
Social media are not utilities. They are not necessities. If you don’t like the rules of a social media platform, choose one you like, build your own, or don’t use social media. You are free to make your choice just as the business is free to make theirs. Regulating them so they act as you would wish is antithetical to free market beliefs.
No doubt the discussion will continue for quite a while as more are held accountable for aiding and abetting an insurrection on the U.S. Capitol.