Finding the Limits of Free Speech Online

President Trump used social media to encourage his supporters to storm the Capitol to attempt to maintain his power. In the wake of this violent insurrection against the certification of our election, the President and some of his supporters are claiming that the First Amendment rights of the President have been violated because of Twitter and Facebook’s decisions to ban the President from use of their platforms. As many legal experts have noted, these social media companies and other digital platforms are private companies, not the government, and that distinction makes their content moderation decisions and actions free of any First Amendment concerns. While we as Americans have a constitutional freedom from having the government inhibit our speech (with some fairly clear limits on the extent of that freedom), this is not a license to use any platform to speak without restriction, nor is it a freedom from criticism or consequences for that speech. First Amendment protections do not, and should not, apply to both private companies and the government. Nor should the same protections limit legal obligations on private companies to protect the public. If we want to keep the uniquely American protections of the First Amendment, we must look to the stakeholders who benefit from this power to take ownership over this decentralized responsibility as well.