Why the First Amendment can’t protect Trump on Twitter or save Parler

Conservatives are crying First Amendment foul as social media companies, including Twitter and Facebook, ban social media accounts by President Donald Trump and others who they say have fomented violence in the wake of the attack on the US Capitol last week — and after Apple, Google and Amazon have shut down conservative social media service Parler.

Twitter on Friday permanently shutdown Trump’s personal account as well as other accounts he has used. Twitter said it was banning the president for his inflammatory tweets after a pro-Trump mob stormed the Capitol as Congress met in a joint session to finalize the electoral votes for Joe Biden as president. Twitter also suspended the accounts of other prominent Trump supporters, including retired Gen. Michael Flynn, Trump lawyer Sidney Powell and supporters of the bogus QAnon conspiracy theory, which has been embraced by many of Trump’s most avid fans. 

The move came after Facebook and Instagram suspended Trump indefinitely from their platforms. Twitch and Snapchat also disabled Trump’s accounts. 

Meanwhile, tech companies Apple and Google have banned the alternative social media platform Parler from their app stores. And Amazon cut off its web hosting services to Parler. 

The actions mark a dramatic turnaround for companies that have largely been hands-off when it comes to speech on their platforms over the last several years. But the violence in Washington, DC last week served as a turning point, with companies moving to silence both individual voices and places seen as inciting violence.   

Conservatives say these actions are nothing more than censorship and a violation of their First Amendment rights to free speech. Donald Trump Jr. tweeted Friday: “Free Speech Is Under Attack! Censorship is happening like NEVER before! Don’t let them silence us. Sign up at http://DONJR.COM to stay connected!” 

Free Speech Is Under Attack! Censorship is happening like NEVER before! Don’t let them silence us. Sign up at https://t.co/835Eak6Ghi to stay connected!
If I get thrown off my social platforms I’ll let you know my thoughts and where I end up. pic.twitter.com/bO7wbfWWVr

— Donald Trump Jr. (@DonaldJTrumpJr) January 9, 2021

But is this really a violation of the First Amendment? The short answer is no. This FAQ breaks it down. 

Is it legal for social media platforms such as Twitter and Facebook to ban Trump and others from their platform? 

Yes. 

Free speech protections under the First Amendment to the US Constitution applies only to the government censoring speech. It doesn’t mean private companies can’t decide what types of speech it allows on its platform. Companies can and do have their own standards and policies that users must follow. 

And they can remove users who violate those standards.

“It’s a common mistake people make in understanding First Amendment protections,” said Clay Calvert, a law professor at the University of Florida Levin College of Law. “There is no constitutional right to tweet or post on Facebook.”

Calvert said private companies, like a publisher of a newspaper, are able to determine what can be posted on their platforms and what can’t. They offer terms of service, which consumers agree to abide by. 

It’s this violation of terms of service, which Twitter, Facebook and others have said is the reason they blocked Trump using their platforms. 

In fact, Calvert points out that it’s the First Amendment that gives these private companies the right to moderate their platforms. 

What was Twitter’s reasoning for banning Trump?  

The social media company run by CEO Jack Dorsey said it was concerned about two tweets that Trump sent on Friday that could incite further violence. 

“The 75,000,000 great American Patriots who voted for me, AMERICA FIRST, and MAKE AMERICA GREAT AGAIN, will have a GIANT VOICE long into the future. They will not be disrespected or treated unfairly in any way, shape or form!!!”

“To all of those who have asked, I will not be going to the Inauguration on January 20th.”

Twitter said the first tweet, which refers to Trump’s false claims that he won the November presidential election, could be viewed as spurring his followers to further violence by urging them to overturn the election based on his baseless claims of fraud. 

The company said the second tweet could encourage those considering violent acts that the inauguration ceremonies on Jan. 20 would be a “safe” target since Trump will not be attending.

“Our determination is that the two Tweets above are likely to inspire others to replicate the violent acts that took place on January 6, 2021, and that there are multiple indicators that they are being received and understood as encouragement to do so,” Twitter said in a blog post. 

Twitter, along with Facebook and Instagram, pointed to their terms of service, which prohibit inciting violence on its platform. Snapchat also issued an indefinite ban. All of them say Trump violated their terms of service. 

Twitter has been flagging some of Trump’s previous tweets for posting false information about the 2020 election and for perpetuating false claims that there was widespread fraud in the election. The Department of Justice and other US agencies have said there is not evidence of massive voter fraud, with numerous US election agencies describing the November elections as “the most secure in American history.”

Before the Capitol was stormed by violent pro-Trump supporters, the president had spoken to the crowd in front of the White House and encouraged his followers to walk down to the Capitol and continue to fight for an election win on his behalf. Meanwhile, inside the Capitol, Congress was meeting to certify the Electoral College votes 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 Sen. Josh Hawley’s forthcoming book? Is that a First Amendment violation?

No. Again, First Amendment claims only pertain to censorship from the US government. Simon & Schuster, owned by ViacomCBS, is a private company. It can decide what to publish and what not to publish. No one has a constitutional right to have their book published. 

Any lawsuit that arises from the publisher canceling the publication of Hawley’s book would likely be based on a breach of the contract between Hawley and the publisher. But it wouldn’t be based on any First Amendment claims. 

What about Apple and Google removing the social media platform Parler from the app store, and Amazon announcing it will no longer host Parler’s service? Does this limit free speech under the First Amendment?

No. Just like social media platforms and book publishers, the First Amendment doesn’t compel Amazon, Apple or Google to offer all apps or to provide web services to any company. The First Amendment and the free speech guarantee is limited only to preventing the government from censoring speech.  

But this isn’t to say that there aren’t other concerns. RonNell Andersen Jones, a professor of law at the University of Utah and an affiliated fellow at Yale Law School, said there is a difference between First Amendment protections and what we consider as limitations on free speech. 

“We might want to think more carefully about our free speech and expression values when a company is unable to operate because another company controls a piece of infrastructure,” she said. “That’s a worthy debate to be having. But it’s not a First Amendment issue.”

Isn’t Parler suing Amazon? What is the lawsuit about then?

Parler’s lawsuit against Amazon alleges that the company suspended it from its hosting service for violating antitrust law and for breaching the companies’ contractual arrangement. 

Parler alleges in the 18-page complaint, filed in US District Court in Seattle, where Amazon is headquartered, that Amazon Web Services (AWS) applied a politically motivated double standard when it stopped offering service to Parler.  The company argues that this is in contrast to the treatment of Twitter. 

“AWS’s decision to effectively terminate Parler’s account is apparently motivated by political animus,” the lawsuit reads. “It is also apparently designed to reduce competition in the microblogging services market to the benefit of Twitter.”

It also claims that Amazon violated its service contract by not honoring a 30-day grace period before terminating service.