The Facebook oversight board’s decision to extend the suspension of former President Donald Trump’s account earlier this month raised the ire of some on the right. Trump’s account has been frozen since Jan. 7, after he praised supporters who launched a deadly attack on the Capitol, but Facebook said it would consult experts to determine when “the risk to public safety has receded.”
“If Big Tech can ban a former President, what’s to stop them from silencing the American people next?” said Republican National Committee chair Ronna McDaniel.
Conservatives’ reactions reflect a new push to expand First Amendment free speech protections to privately owned forums. Dozens of states — many run by Republicans — have proposed legislation targeting private companies’ policies. And conservative U.S. Supreme Court Justice Clarence Thomas recently questioned the constitutionality of private company control over user content.
However, the First Amendment, which states that “Congress shall make no law… abridging the freedom of speech,” applies to government entities, not private domains.
“The First Amendment only restrains government; it does not restrain a private company. In fact, those companies have their own First Amendment right to determine, as would a newspaper, for example, what will appear on their sites,” said Gene Policinski, senior fellow for the First Amendment at the Freedom Forum.
A discrepancy persists between what some politicians want from big tech and companies’ rights under the First Amendment, according to Ken Paulson, director of the Free Speech Center at Middle Tennessee State University and former editor in chief of USA TODAY.
“The bottom line remains that Facebook is a private company, and it has its own First Amendment rights to decide what it wants to put on its service,” Paulson said.
Some conservative Republicans have long criticized tech companies’ ability to regulate speech on their platforms, claiming infringement of free speech when someone is banned or suspended for violating usage policies.
“There are a host of people who, for example, find that when they make a statement that Facebook or Twitter or someone deems to be threatening… and they’re banned or suspended, that it somehow is a violation of free speech rights,” said Policinski. “Terms of service are a contract between me and the company, and they lay those out, and they have a right to enforce those. It is not a free speech matter.”
What is a public forum?
Jennifer Lambe, a University of Delaware communication professor who specializes in First Amendment rights, says an argument that social media platforms have become public forums meriting congressional oversight is picking up steam.
The Congressional Research Service states that “state action doctrine…