Opinion: Twitter banning Trump didn't violate First Amendment

Twitter permanently banned Donald Trump's account following his incitement of an insurrection at the United States Capitol. Conservative commentators and politicians immediately began raising concerns of Big Tech censorship, invoking the First Amendment and calling for the repeal of Section 230 of the Communications Decency Act.

As many have noted, complete repeal of Section 230 would lead to more censorship because increased liability would make platforms overly cautious and quicker to pull questionable content. But does the First Amendment have any bearing on the issue?

Start with the text. On its own terms, the First Amendment only forbids censorship by government actors. Though a strict interpretation of the words, “Congress shall make no law … abridging the freedom of speech,” would only apply to the legislative branch of the Federal government (“Congress”), it has long been interpreted to also apply to the Executive and Judicial branches. The later addition of the Fourteenth Amendment made it so that the First Amendment also forbids censorship by state governments.

As presently interpreted by the Supreme Court, the First Amendment prevents the government from discriminating against disfavored speakers and viewpoints in “public forums.” In other words, when the government creates a public forum for people to share their views, it can't stop people from speaking just because it disapproves of what they're saying.

Twitter (and every other social media platform) is a private actor. There have been some instances of the First Amendment being used to prevent censorship by private actors, but they are extremely rare. The most relevant was a 1946 Supreme Court case about the “company town” of Chickasaw, Alabama. There, a private corporation created a settlement with all of the trappings of a small town, including sidewalks, a police force, and other amenities which would have traditionally been publicly funded. When police officers (who were private security guards paid by the corporation) banned a Jehovah's Witness from distributing religious literature in the town, the Supreme Court held that the corporation violated the First Amendment.

However, the impact of that opinion in the years since has been quite limited. In a recent case considering a similar question, the Supreme Court held that only when private actors take on “powers traditionally exclusive to the state” (such as establishing an entire town) are they subject to the First Amendment. So, in most instances where a private corporation creates a public forum, it can censor speech in that forum without infringing on the First Amendment.

If a coffee shop hangs a community cork board, for instance, it can still decide to take down a poster advertising a white power rally. Social media platforms are far more like the coffee shop than the company town because the government has never provided services like Twitter or Facebook.

But notably, the First Amendment prohibited President Trump from blocking people from his Twitter account. The court in that case held that President Trump's Twitter account was a public forum and forbid him from blocking people that had written mean things about him. Crucially, the court reasoned President Trump's Twitter account was a public forum because he was the president of the United States, and accordingly, a government actor. While the same reasoning might apply to the Twitter accounts of other public officials, it doesn't mean that Twitter itself is a public forum.

The question comes down to control. The president has control over his Twitter account (or, at least, he did), which makes it a public forum. However, because he nor any other government actor directly controls Twitter itself, it is not a public forum.

Further, the First Amendment actually protects Twitter's right to moderate content on its platform against government interference. As a federal court noted in 2016, the “Government may not interfere with the editorial judgments of private speakers on issues of public concern — that is, it may not tell a private speaker what to include or not to include in speech about matters of public concern.” Twitter acts as a sort of “editor” when it designs its algorithm (determining which tweets appear in your feed), when it develops rules for its community, and when it bans certain users. Because each of these decisions shape the content and culture of the platform, they are protected by the First Amendment.

In short, President Trump has no First Amendment rights against Twitter. There's no particular reason to be concerned about this, either. The president can walk into the press briefing room and immediately reach an audience of millions.

Of course, for private individuals who don't enjoy the same access to the media, a ban from Twitter or other social media sites may seriously curtail their ability to reach an audience.

One might argue (persuasively) that highly concentrated corporate control of speech presents a serious problem for both culture and democracy. As currently interpreted by courts, the First Amendment has little to say about this problem. But ultimately, concentration of platform ownership may be better addressed through antitrust litigation. Breaking up big tech monopolies could lead to more diverse speech platforms without encountering the thorny First Amendment questions involved in forcing platforms to change their moderation practices.

Roman Leal is a Muleshoe native and a Student Fellow at the Information Society Project at Yale Law School. Contact him at:

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