Why Online Service Providers Cannot be Sued under the First Amendment
Frequently we are asked to consider filing lawsuits against social networking sites like Facebook, Instagram, and Twitter, for violating the First Amendment based on deletion of posts, groups, accounts, or ads. Potential clients often assert their content was removed – or their account was terminated – based on their viewpoint or political beliefs. Understandably, this feels like their speech is being censored and there should be some legal remedy for violating free speech rights. However, online platform providers are not governmental entities. Only federal, state, or local governments can be held responsible for violating the First Amendment, under well-established law.
This fact surprises many folks who believe that these powerful platform providers have as much (or more) power to stifle free speech rights as government entities. Therefore, some argue that there should be a law that protects their speech and provides a remedy if they are censored. To be sure, large internet intermediaries control users’ access to the virtual public square. In pre-internet days, a speaker simply needed a soap box and a loud voice in a public park to get their message out to an audience. This began to change with the emergence of radio and television media, which acted as gatekeepers of information. Congress has claimed some legal authority to regulate the content of broadcast media, given the limited public airwave frequencies available for licensure. However, access to the internet is theoretically limitless. Under this theory, anyone can create their own website (or social media platform) and post their content online. So, the same legal justifications do not apply to regulation of online service providers. In addition, under Section 230 of the Communications Decency Act, online service providers are immune from liability for their decisions to terminate accounts or remove content from their platforms. Importantly, the platform providers have their own First Amendment right to decide which content to publish, amplify, demote, or exclude. While there have been some legislative proposals to modify or repeal “Section 230 immunity,” none of these proposals (aside from FOSTA/SESTA which creates liability for prostitution and sex trafficking) have been passed into law, and there are constitutional concerns with forcing private platforms to carry speech that they oppose. Therefore, this is a complicated problem with no simple solution.
Some uncertainty has been generated by the passage of state laws, such as one adopted in Florida, that purport to regulate the editorial decisions of social media sites. While the Florida law gave some false hope to Floridians that have been the victim of targeted censorship, the law is likely unconstitutional and has already been enjoined by the Eleventh Circuit Court of Appeals. A similar Texas law was recently upheld by the Fifth Circuit Court of Appeals but that decision has been put on hold pending potential review by the U.S. Supreme Court. Like the Florida law, the Texas law is likely unconstitutional, as discussed here. The Texas and Florida law rulings conflict with each other, and we expect the U.S. Supreme Court to eventually rule on whether the government can regulate actions of social media sites. However, since the state laws have been put on hold pending further review, social media users cannot bring claims against online platforms for violations of First Amendment rights in instances where user content is banned, or accounts are deleted.
Other concerns have been raised by reporting that the White House, FBI, DHS, and other federal agencies have flagged certain posts or accounts on social media sites for providing “misinformation,” and may have played a role in encouraging social media sites to remove such content. The information released in the “Twitter Files” suggests that government efforts to control speech on social media have come close to unconstitutional censorship. In some circumstances, government actors can be held liable for conspiring with or pressuring private actors to violate free speech rights. However, such claims require direct proof of a nexus between the government action and the decision to censor. Future cases may clarify the limits on governmental power to flag or suggest content moderation by private platforms. However, in the absence of proof that a social media platform removed content or terminated an account in direct response to government action, no viable claim exists.
So that leaves us where we are today. Established law allows online platforms to decide what speech is acceptable, and who will be allowed to use their services to publish their messages. Your rights are governed by the user agreement that you accepted when you signed up for the (often free) service. These agreements typically allow for broad discretion to delete content or terminate customers by the service provider. Like any private business, they can decide who can be a customer and how their services may be used.
While there have been some attempts to treat online service providers as “public forums” or “common carriers” for purposes of First Amendment claims, these efforts have largely been unsuccessful (aside from the above-referenced Fifth Circuit ruling which has been stayed). Some states have specific laws which may provide unique arguments regarding the discretion of service providers to take action against certain consumers. Also, some courts have ruled that websites are public accommodations for purposes of ADA (disability act) claims, but other courts disagree. Nonetheless, such claims are not based on violations of the First Amendment.
Given the ability of online service providers to essentially kick speakers off the internet, this issue of “private censorship” has generated substantial public policy concerns. Such decisions should not be based on the viewpoint of the speaker, under traditional notions of free expression. These concerns have driven recent legislative proposals to change how social media sites treat user content. However, the First Amendment and civil rights statutes do not currently provide any remedy for censorship of speech by private companies. To read more about the issue of private censorship, click here.