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Conservatives cry over First Amendment foul, as social media companies, including Twitter and Facebook, social media accounts of President Donald Trump and others they say were violence after the attack on the U.S. Capitol last week have triggered - and after Apple, Google and Amazon have closed the conservative social media service Parler.
Twitter finally closed Trump's personal account and other accounts he used on Friday. Twitter said it banned the president for its inflammatory tweets after a pro-Trump mob stormed the Capitol when Congress met in a joint session to finalize the voting for Joe Biden as president. Twitter has also banned the accounts of other prominent Trump supporters, including retired General Michael Flynn, Trump attorney Sidney Powell and supporters of the QAnon false conspiracy theory adopted by many of Trump's most ardent fans.
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The move came after Facebook and Instagram suspended Trump from their platforms indefinitely. Twitch and Snapchat have also disabled Trump's accounts.
In the meantime, the technology companies Apple and Google have banned the alternative social media platform Parler from their app stores. And Amazon has discontinued its web hosting services for Parler.
The measures represent a dramatic turnaround for businesses that have been largely straightforward when it comes to speaking on their platforms over the past few years. But the violence in Washington, DC last week was a turning point. Corporations sought to silence both individual voices and places that were seen as inciting violence.
Conservatives say these actions are nothing more than censorship and a violation of their rights to freedom of expression under the First Amendment. Donald Trump Jr. Tweeted Friday: "Freedom of speech is under attack! Censorship is happening like NEVER before! Don't let them silence you. Log on to http://DONJR.COM to stay connected!"
Freedom of speech is being attacked! Censorship happens like NEVER before! Let's not silence them. Log in to https://t.co/835Eak6Ghi to stay connected!
If I get kicked off my social platforms, I'll let you know about my thoughts and where I end up. pic.twitter.com/bO7wbfWWVr- Donald Trump Jr. (@DonaldJTrumpJr) January 9, 2021
But is that really a violation of the First Amendment? The short answer is no. This FAQ breaks it down.
Is it legal for social media platforms like Twitter and Facebook to ban Trump and others from their platform?
Yes.
The protection of freedom of speech under the First Amendment to the US Constitution applies only to government censorship. This does not mean that private companies cannot decide what types of language are allowed on their platform. Organizations can and have their own standards and guidelines that users must follow.
And they can remove users who violate these standards.
"It's a common mistake people make in understanding First Amendment protection," said Clay Calvert, a law professor at Levin College of Law, University of Florida. "There is no constitutional right to tweet or post on Facebook."
According to Calvert, private companies like a newspaper publisher can determine what can and cannot be published on their platforms. They offer terms of use that consumers undertake to adhere to.
It is this violation of the Terms of Use that, according to Twitter, Facebook, and others, is why they blocked Trump through their platforms.
In fact, Calvert points out that it will be the first change that will give these private companies the right to moderate their platforms.
What was Twitter's rationale for banning Trump?
The social media company, led by CEO Jack Dorsey, said it was concerned about two tweets Trump sent on Friday that could spark further violence.
"The 75,000,000 great American patriots who voted for me, AMERICA FIRST, and MAKE AMERICA BIG AGAIN, will continue to have a HUGE VOTE. They will not be disregarded or treated unfairly in any way, form, or form !!! "
"For everyone who asked, I won't go to the inauguration on January 20th."
Twitter said the first tweet referring to Trump's false claims that he won the November presidential election could be seen as spurring his supporters to further violence by asking them to overturn the election on his unfounded allegations of fraud.
The company said the second tweet could encourage those considering violent acts to view the January 20 dedication ceremonies as a "safe" target as Trump will not be in attendance.
"Our determination is that the above two tweets are likely to inspire others to repeat the acts of violence of January 6, 2021, and that there are several indicators that they will be received and taken as encouragement," Twitter said in one blog entry.
Twitter, along with Facebook and Instagram, pointed out their terms of use, which prohibit inciting violence on its platform. Snapchat has also issued a perpetual ban. Everyone says Trump violated their terms of service.
Twitter has flagged some of Trump's earlier tweets for posting false information about the 2020 election and maintaining false claims that there was widespread election fraud. The Department of Justice and other US authorities have said there is no evidence of massive election fraud. Numerous US electoral authorities called the November election "the safest in American history".
Before the Capitol was stormed by violent pro-Trump supporters, the president had spoken to the crowd outside the White House and encouraged his supporters to go down to the Capitol and continue to fight for an election victory on his behalf. Meanwhile, Congress met in the Capitol to confirm the votes of the electoral college for President-elect Biden. Biden won the presidential race with 81.28 million votes and 306 electoral votes.
What about Simon & Schuster canceling the publication of Senator Josh Hawley's upcoming book? Is that a violation of the first change?
No. Again, the claims of the first amendment relate only to US government censorship. Simon & Schuster, owned by ViacomCBS, is a privately held company. It can decide what should and shouldn't be published. Nobody has a constitutional right to have their book published.
Any lawsuit arising out of the publisher's cancellation of the publication of Hawley's book would likely be based on a breach of contract between Hawley and the publisher. But it wouldn't be based on any First Amendment claims.
What if Apple and Google remove the Parler social media platform from the App Store and Amazon announces that it will no longer host the Parler service? Does this restrict freedom of expression under the first amendment?
No. Just like social media platforms and book publishers, the first change does not force Amazon, Apple or Google to offer all apps or provide web services for companies. The first amendment and the guarantee of free speech are only limited to preventing the government from censoring the speech.
But that doesn't mean there aren't any other concerns. RonNell Andersen Jones, a professor of law at the University of Utah and an associate at Yale Law School, said there was a difference between protecting the first amendment and what we consider to be a restriction on freedom of speech.
"We may want to think more deeply about our values of free speech and expression when one company cannot operate because another company controls an infrastructure," she said. "It's a worthy debate. But it's not a First Amendment issue."
Isn't Parler suing Amazon? Then what is the lawsuit about?
Parler's lawsuit against Amazon alleges the company suspended it from its hosting service for violating antitrust laws and for violating the company's contractual agreement.
Parler alleges in the 18-page complaint filed in the U.S. District Court in Seattle, where Amazon is headquartered, that Amazon Web Services (AWS) applied a politically motivated double standard when Parler stopped offering services. The company argues that this is in contrast to how Twitter treats it.
"AWS's decision to effectively terminate Parler's account is apparently motivated by political animations," the lawsuit said. "It is also apparently intended to reduce competition in the market for microblogging services in favor of Twitter."
It is also alleged that Amazon violated its service agreement by failing to give a 30-day grace period before terminating the service.
