Key Takeaways
- The First Amendment restricts the government, not private companies, so you have no constitutional right to stay on a social media platform.
- Platforms have their own First Amendment rights, and the Supreme Court in Moody v. NetChoice described their content curation as protected expression.
- The First Amendment does apply when government officials block critics on official accounts or coerce platforms into suppressing speech.
If a social media platform suspends your account or removes your posts, have your First Amendment rights been violated? Many people assume so, and many are surprised by the answer.
In this TalksOnLaw Brief, Nadine Strossen, John Marshall Harlan II Professor of Law Emerita at New York Law School and former President of the American Civil Liberties Union, explains why there is no constitutional right to stay on Facebook, Twitter (now X), or any other private platform, and why access to these platforms still matters so much for free expression and democracy.
The First Amendment Limits Government, Not Private Companies
Professor Strossen explains that the First Amendment, like the other constitutional rights, protects us only against the government. If a federal, state, or local official interferes with your speech, you can bring a First Amendment challenge. But social media companies are private entities, so they have no First Amendment obligation to host your speech. The Supreme Court applied the same principle in Manhattan Community Access Corp. v. Halleck, holding that a private operator of public access cable channels was not a state actor bound by the First Amendment.
Platforms Have Their Own Free Speech Rights
To the contrary, Professor Strossen notes, platforms have First Amendment rights of their own. Like the New York Times or CNN, which have no obligation to carry any particular message, social media companies may decide which content and viewpoints to host. The answer to the question in the title, she says, is no.
Why Access Still Matters
Professor Strossen also stresses why this is a serious concern. Social media have become the dominant platforms for exchanging information and ideas, both among individuals and between citizens and their officials. In Packingham v. North Carolina, the Supreme Court, without dissent, described social media as among the most important places for the exchange of views, and struck down a state law barring registered sex offenders from using them. For that reason, she explains, government officials, human rights bodies, and activists are working on other ways to protect equal and fair access to these platforms, including for unpopular or controversial voices.
What to Know Now
Later Supreme Court decisions have reinforced Professor Strossen’s central point. In Moody v. NetChoice, the Court sent challenges to Texas and Florida laws restricting content moderation back to the lower courts, but its majority opinion explained that when platforms curate their feeds, they engage in expressive activity protected by the First Amendment. The efforts she anticipated to secure fair access through regulation have therefore met constitutional limits, and litigation over those laws and newer state social media laws continues.
Other decisions address the government side of the line. In Lindke v. Freed, the Court held that a public official’s blocking of critics on social media can be state action when the official has authority to speak for the government and purports to use it. In National Rifle Association v. Vullo, the Court confirmed that officials may not coerce private companies into punishing speech they disfavor, while in Murthy v. Missouri it found that the challengers to federal contacts with platforms lacked standing. Debate continues: some argue that dominant platforms should be treated like common carriers with access duties, while others maintain that such rules would override the platforms’ own editorial rights.
