by Simran Jayasinghe
In light of recent events, the discussion of the 1st Amendment rights of free speech and social media has been put in the spotlight. Some say that under the 1st Amendment, some social media companies’ decisions to ban accounts violates their right to free speech and is unconstitutional. But do our rights under the 1st Amendment include things like rights to have social media accounts and express our views on social media?
The short answer is no. The first amendment says “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.” A lot is packed into that first amendment as it covers freedom of religion, free speech, as well as the right to peacefully protest and petition the government with grievances. but the part we are looking for is this clause: “…or abridging the freedom of speech, or of the press;…”. This refers to freedom of speech and press, stating that the government cannot make laws that prohibit the people’s free speech and the free speech of the press. The important detail that some people tend to miss is at the beginning of the 1st amendment, “Congress shall make no law…”. This means that the first amendment only addresses what the government cannot do to encroach on the people’s rights. Social media companies are private companies (not affiliated with the government), and therefore their actions do not fall under the first amendment.
Now that we know the first amendment says nothing about your rights on social media, your next question might be, “Is there anything social media companies say that specify people’s rights on social media?”. Let’s think about what happens when you make a social media account for a second. After selecting your username and password, you are required to check the box that says “I agree to ______’s Terms and Conditions”, or the same message is in small print somewhere on that page. You do this every time you make an account on virtually every online service, social media or not (Amazon, Facebook, Instagram, Twitter, Pinterest, Google, Discord, Parler, etc). These terms and conditions can cover a wide range of things from minimum age to use the service to copyright rules and other legal safeguards. Whether most people actually read the terms and conditions before accepting them when making accounts and signing up for services is a discussion for a different post, but for the people that don’t, they can also (almost always) be found on the company’s website. For the current issue of whether social media companies can take down content that people post, I have attached the screenshots below of a paragraph from Twitter’s Terms of Service page, ‘Content on the Services’ section, and from the ‘Ending These Terms’ section.
This means that everyone that has an account on Twitter agreed to following these Terms of Service when making their account, and legally, Twitter is within their rights to regulate what accounts post (when they have reasons to deem it necessary). Most social media companies have similar terms, although they do vary slightly from platform to platform.
It is also important to note that the right to freedom of speech under the law does not cover the right to say or do things that would or do cause harm to others. It is not considered freedom of speech to shout “fire” in a crowded theatre when there is no fire, because not only is it untrue, it creates a situation in which multiple others can be harmed. In summary, the first amendment protects the people’s rights against the government, not private companies, which means it plays no part in what social media companies can do, and legally, everyone using social media platforms have contracts that specify what the company can and cannot do.