Social Media Free Speech has no Legal Standing, Unfortunately

“Fixing” the issue of censorship on any social media will be quite difficult. 

The U.S. First Amendment to the Constitution only bars action by government entities. One might actually go further and note that the First Amendment only bars Congress from making laws that infringe on free speech.

The protections actually were not meant to constrict what private entities might publish or say. Nor, for that reason, is there a clear legal framework relating to private entities and First Amendment protections. Basically, they do not exist.

source: Teach Privacy 

All of which is a problem for those who believe freedom of speech should be enforced or enabled for social media platforms. 

That is part of a growing concern in some quarters about how freedom of expression is protected not from government action but by the actions of platforms. 

If we assume that the purpose of the First Amendment is to protect freedom of expression in a democratic society, then new media formats and new platforms can raise new issues. And, as is common, the matter is complicated, especially because the First Amendment protection of free speech rights only prohibits the government from infringing. 

Private entities may “infringe or restrict speech” all they like. And ordinary citizens--as opposed to media firms, for example--actually have circumscribed “rights of free speech.” You may not exercise that right anywhere, anytime, for example. You do not have the right to dictate what any media entity chooses to publish or restrict. You have no right to exist on a social platform. 

You certainly have no right “to be heard” on media. When First Amendment protections have been upheld by courts, they have virtually always upheld the rights of media to act as speakers without government censorship. 

There is no similar history of rulings supporting private actor speech or censorship, as the rights belong to the “speaker” who owns the asset. 

The First Amendment has generally been interpreted to protect the rights of “speakers. But the owners of new platforms (social media, in particular) say their users are the “speakers,” not the platforms, when arguing for protection against claims of defamation, for example. 

Even if jurists wished to extend some First Amendment protections beyond “government” entities, legal concepts would have to come to a decision on who the “speaker” is, to protect the speaker’s rights.

The problem is that precedent favors the view that the platform is protected from government censorship, but not the individual users of any platform from private censorship. It might seem arcane, but “defining who the speaker is” underpins the freedom from government censorship. 

But there is no established right of users of social media to be free from the platform’s censorship. Government may not infringe. No such limitation exists for private entities of any sort. Citizens have the right to create their own media and “speak” that way. They have no comparable standing as users of any private entity’s platform. 

In other words, are the users of a platform the speakers, the platform itself, or some combination. Worse, is it the speakers or the audience whose “free thought” rights are to be respected?

Traditionally, citizens are to be protected from government restriction of free speech. 

But the places where “speech” occurs also matter. Public forums--such as public parks and sidewalks--have always been viewed as places where citizens have the right of free speech. 

Nonpublic forums are places where the right of free speech can be limited. Examples are airport terminals, a public school’s internal mail system or polling places. 

In between are limited public forums, where similar restrictions on speech are lawful, especially when applied to classes of speakers. However, the government is still prohibited from engaging in viewpoint discrimination, assuming the class is allowed. 

The government may, for example, limit access to public school meeting rooms to school-related activities. The government may not, however, exclude speakers from a religious group simply because they intend to express religious views, so long as they are in a permitted class of users. 

Those protections have been limited to state action, It is government entities (local, state, or federal) that are enjoined from infringing the right of free speech. Protections have not been deemed applicable to private entities.

There has generally been in other words, no First Amendment right of free speech enforceable on private firms or persons, with some exceptions. 

What cannot be said? What ideas cannot be thought? What implications may not be drawn? What does intolerance look like, in the context of thinking and ideas?

It is not easy to explain how freedom of thought and content moderation are to be harmonized. What is the difference between “community standards” moderation and outright banning of thoughts and ideas?

It is not easy to understand how “ideas” are different from “actions.” 

Nor is it easy to explain where “free speech” rights exist and by whom those rights may be exercised, as simple as the notion of freedom of thought, speech and political views might seem. 

As U.S. Supreme Court Justice Oliver Wendell Holmes famously noted,  "if there is any principle of the Constitution that more imperatively calls for attachment than any other, it is the principle of free thought: not free thought for those who agree with us but freedom for the thought that we hate." 

The problem is that the freedom of free thought and speech does not include the right to be heard on a social media platform. How that can be fixed necessarily includes defining the free speech rights of entities and users of entities, even when those rights clash.