Why Online Service Providers Cannot be Sued under the First Amendment
Last Updated: September 28, 2026
Frequently we are asked to consider filing lawsuits against social networking sites like Facebook, Instagram, and X, 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, 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, and which to 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 solutions.
Some uncertainty has been generated by state laws that purport to regulate the editorial decisions of large social media platforms. Florida’s S.B. 7072 (2021) and Texas’s H.B. 20 (2021) both restrict how covered platforms may remove, demote, or label user speech and impose disclosure and private-right-of-action rules. Those statutes have been the subject of years of litigation.
In July 2024 the U.S. Supreme Court, in Moody v. NetChoice (Florida) and the companion NetChoice v. Paxton (Texas), unanimously vacated the Eleventh and Fifth Circuit decisions. The Court held that platforms’ choices about which third-party speech to host, organize, or exclude are themselves protected First Amendment activity, but it sent both cases back because the lower courts had not properly analyzed the laws as facial challenges across the full range of applications.
Florida S.B. 7072 has never taken effect. After remand, the case returned to Judge Robert Hinkle in the Northern District of Florida. In June 2026 he denied both sides’ motions for summary judgment, confirmed that content curation—including mixed human and algorithmic ranking—is protected speech, and observed that the Supreme Court had already found the statute unconstitutional “in substantial respects.” A bench trial originally set for September 8, 2026 was continued; it is now scheduled for February 8, 2027. The preliminary injunction remains in place.
Texas H.B. 20 is likewise not in force. After the Supreme Court’s remand, the Fifth Circuit returned the case to the Western District of Texas. NetChoice and CCIA filed an amended complaint adding as-applied claims; the matter remains pending before Judge Robert Pitman, with no merits ruling as of late September 2026. Earlier Fifth Circuit and Supreme Court stays have kept the statute from going into effect while the remanded proceedings continue.
Because both laws remain enjoined or otherwise unenforceable, social media users still cannot bring First Amendment claims against private platforms for banned posts or deleted accounts.
Other concerns have been raised by reporting that the White House has flagged some posts or accounts on social media sites for providing “misinformation.” In some circumstances, government actors can be held liable for conspiring with private actors to violate free speech rights. However, such claims require direct proof of a nexus between the government pressure and the decision to censor. Future cases may clarify the limits on governmental power to flag or suggest content moderation by private platforms.
So that leaves us where we are today. Online platforms can 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” for purposes of First Amendment claims, these efforts have been unsuccessful. 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.