The First Amendment Needs an Update

By: Katherine Czubakowski

Recent news about Twitter and Facebook banning former President Trump has many wondering about the legality of such action.  Although the consensus is that Twitter’s action does not violate the First Amendment, it does raise questions about whether or not the First Amendment should apply to, at least some, forums on the internet.  The Supreme Court’s precedent has focused largely on free speech rights in physical spaces, but with more communication happening over the web—particularly in the quarantined and socially-distanced world of today, it’s time for the Court to address when and how speech on the internet can be regulated.

Lower courts have recently begun questioning the assumption that speech on social media cannot be protected by the First Amendment.  Under current law, social media sites are allowed to ban whoever they want.  The Constitution, and by extension the Bill of Rights, only applies to government action, so  Twitter, Facebook, and other private social media platforms are allowed to regulate speech in any way they choose through their Terms of Service.  However, this view has been challenged numerous times by those wishing to comment on public officials’ Facebook pages, those who have been banned from Twitter for their own speech, and those who have been blocked by other Twitter users with varying success.  Although some courts have held that social media platforms are strictly private companies hosting private speech, other courts have come to the conclusion that some aspects of social media platforms  fall under First Amendment protection, such as when the account is run by a government officer speaking in their official capacity because the interactive features open to the public change the nature of these accounts from private to public.

One of these cases, Trump v. Knight First Amendment Institute, is currently pending petition at the Supreme Court, giving the Court the ideal opportunity to announce a new policy for how the First Amendment should apply to internet forums.  The plaintiffs in this case argue that by blocking them from his personal Twitter account, former President Trump violated the First Amendment by preventing them from speaking in a public forum based on the viewpoints they would have expressed.  Ensuring that citizens can disagree with politicians and engage in a public debate, if only in the comments section, is one of the most important ways to rebut the effects of confirmation bias, prevalent on social media.  As politicians and public officials take increasing advantage of social media and leverage it as a tool to promote their own policies, citizens’ rights should be expanded to ensure a fair and open public debate.

Now is the time for the Court to extend First Amendment protections to any website which encourages public discussion.  While expanding First Amendment protections to internet forums would likely allow former President Trump back on Twitter, it would also keep him from banning those with whom he disagreed from replying and challenging his opinions.  The Founding Fathers thought a fair, open, and representative public debate was the best way to protect our democracy – we just need to move their ideas into the digital age.

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