A First Amendment Right to Social Media?
Social media platforms have become powerful centers for expression and communication, but does the First Amendment protect access to these platforms? Renowned constitutional law professor and former head of the American Civil Liberties Union, Nadine Strossen, explains the status of free speech on social media platforms and shines light on the prevalent misunderstanding regarding constitutional rights in relation to private entities.
Professor Strossen underscores that the protections granted by the First Amendment apply solely to government infringements on free speech and do not extend to privately-owned entities such as Facebook and Twitter. She clarifies that these platforms, akin to traditional media outlets like the New York Times or CNN, possess their own First Amendment rights, thereby having no obligation to accommodate content or viewpoints they deem objectionable.
However, the significant role these platforms have as a "modern public square"—acknowledged in the unanimous 2017 U.S. Supreme Court opinion in Packingham v. North Carolina—raises profound concerns about equal and fair access. Strossen posits that due to the significance of these platforms, government officials, human rights agencies, and activists will likely continue to push for equitable access to social media through new regulations, rather than relying solely on First Amendment protections.
A First Amendment Right to Social Media? Brief Transcript
Many people are complaining about being kicked off social media platforms, either because of particular posts or because of a series of posts. And the question arises, do you have a right not to be kicked off Facebook, Twitter, etc.? My name is Nadine Strossen. I am a professor of law at New York Law School, and for many years, I was the head of the American Civil Liberties Union.
So the answer to the question, "Do you have a right not to be kicked off a social media platform?" is no! You have no such right. Many people are shocked to learn that the First Amendment free speech guarantee, along with all constitutional rights, only protects us against the government. So, if the government interferes with your freedom of speech, you can bring a First Amendment lawsuit to challenge that. And that's true whether we're talking about a federal government official or a state or local government official. But guess what? Facebook, Twitter, the other social media platforms are not the government. They are private sector entities, and therefore, they have no First Amendment obligation to protect your freedom of speech. To the contrary, they have their own First Amendment rights—their media right. So, just as the New York Times or CNN or any other traditional media platform has no obligation to host your particular message, the same is true for social media. And this is of great concern because as a practical matter, the social media have become the dominant platform for the exchange of information and ideas. In fact, the U.S. Supreme Court recognized in a unanimous opinion in 2017 that the social media platforms are the most important platforms for the exchange of information and ideas and communication, not only among all of us as individuals with our friends and family members, but also between us and government officials and politicians. So, it's really important not only for our individual freedom of speech to be meaningful, but also for our rights as citizens in a participatory democracy to have equal access to social media platforms. That is why so many people, so many government officials, so many human rights agencies and activists are thinking very hard and working to implement other ways to protect equal and fair access to social media platforms for all of us, even if our ideas are unpopular or controversial. So, in a nutshell, do you have any constitutional First Amendment free speech right to air your views on any social media platforms? The answer is no.
My name is Nadine Strossen, professor of constitutional law, former head of the ACLU. Thanks for watching TalksOnLaw.