APU Legal Studies Original

Censorship and Why Freedom of Speech Is Not Absolute

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In the uproarious world of Facebook, Twitter, YouTube, and other social media and network platforms broadcasting globally, conversations about free speech and censorship have reached epic proportions. Most recently, former President Trump has been personally banished from some of these platforms. Consequently, Trump has filed class action suits against Twitter, Google and Facebook, alleging unlawful censorship of free speech in violation of the First Amendment by the termination of his user accounts.

For example, Twitter permanently banned Trump in January 2021 for violating its glorification of violence policy. Similarly, Facebook has banned Trump until at least January of 2023. In a similar vein, YouTube continues to suspend user accounts under its COVID-19 medical misinformation policy.

Are these private corporate platforms violating free speech rights by unlawful censorship? No, they are not. So far, this is not the purpose of the First Amendment of the U.S. Constitution.

The First Amendment Only Protects against Government Restrictions of Free Speech

In regard to free speech, the critical words of the First Amendment are: “Congress shall make no law…. abridging the freedom of speech.” This wording applies equally to state and local governments through the Fourteenth Amendment. As Justice William O. Douglas wrote in Terminiello v. Chicago, “it is only through free debate and free exchange of ideas that government remains responsive to the will of the people and peaceful change is effected.”

Censorship is the deliberate suppression of speech and is unlawful when it’s done by the government, with limited exceptions. The First Amendment protects citizens from government censorship, silencing and retaliation. But this protection against censorship is not absolute for all speech of whatever nature, at all times and in all places.

The Supreme Court explained in Chaplinsky v. New Hampshire why free speech cannot be wholly unfettered in a society that needs to get along: “There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem … [such as]…those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.” This case established that “fighting words” are not protected speech because they intend a direct harm to both a person and the public.

Another common example, immortalized by Justice Oliver Wendell Holmes, Jr., in Schenck v. U.S., is the prohibition against falsely shouting “fire” in a crowded theater. In this situation, public safety overcomes the freedom to maliciously cause a deadly stampede. Furthermore, defamation law gives individuals and businesses a right to seek damages for false speech that harms their reputations.

The government can also lawfully restrict types of speech in certain places. An example is Greer v. Spock, in which the U.S. Supreme Court upheld Fort Dix’s rule banning “speeches and demonstrations of a partisan political nature” on the military base and the distribution of literature presenting “a clear danger to [military] loyalty, discipline, or morale.” Candidates for President and Vice President had sought to give speeches on the base and were refused.

Private citizens also have an interest in what is said and done on their premises. The First Amendment does not apply to individuals and businesses who desire to regulate speech according to their views of propriety in their homes and businesses.

Such is the case with social media platforms. Users can choose from the many platforms that best suit their preferences.

Social Media Platforms Monitor User Accounts According to Their Terms of Use

When users sign up to participate on a social media platform, they are using the services of that business. The platform provides them with the means and venue for public speaking.

Typically, users must agree to the site’s terms of use, which constitute a legal agreement. The terms of use commonly include several restrictions relating to a user’s propriety of speech and conduct. For example, in addition to its anti-violence policy, Twitter has a civic integrity policy against posting or sharing content for “the purpose of manipulating or interfering in elections or other civic processes.” 

Most platforms will not guarantee the continuation of an account at all. Knowingly violating a social media platform’s terms of use results in a range of actions for a user, from warnings to suspension to the termination of the user’s account.

Twitter’s policy clearly states, “We may suspend or terminate your account or cease providing you with all or part of the Services at any time for any or no reason, including, but not limited to [violating terms of use or creating legal exposure].” Similarly, Facebook has extensive Community Standards and a Corporate Human Rights Policy, which carry penalties for violations.

Imagine that Facebook, for instance, is the largest privately-owned stadium venue in a city. If that stadium refuses to make its space available for a specific speaker for a rally or has unacceptable terms of use for that speaker, that is not an abridgement of free speech. That speaker can go somewhere else and freely talk to the public.

With their terms of use and other policies, the social platforms in question have in essence said to users, “You cannot say this (or show this) in our house.” Because of repeated violations by some users, they have also said, “You are not coming back to our house.”

The internet is a limitless universe of digital space. Users have many social media options or can create their own platforms, so their speech is not abridged or silenced.

What If Social Media Platforms Were Deemed Quasi-Governmental?

Some advocates argue that social media platforms are engaging in unlawful censorship because their size and reach equate them with a quasi-governmental forum open to participation by a vast public. The First Amendment argument is that social media is a wide-open arena of public debate of political issues that must not be censored by anybody.

However, careful examination of the accepted lawful restrictions on free speech might not take this argument very far. Like every right, free speech carries the obligation to exercise responsibility and due care.

Even if viewed as quasi-governmental, social media platforms would still be within their bounds to ban the very type of speech that has caused the controversy in the first place: incitement to violence, malicious falsehoods, fighting words and misinformation that poses a threat to public safety. Every business, including the government, has its own workplace rules.

Another question about this argument would be the precedent of converting private business into government. Is this a Pandora’s box that should be opened?

Debate Is the Embodiment of Free Speech

Fortunately, free speech is narrowly constrained only by those laws needed for peaceful social discourse and public safety. Debating the constitutional principles governing our rights is important for understanding them.

Such debate is the very embodiment of free speech. Recently, faculty members from the University’s Dr. Wallace E. Boston School of Business and the School of Security and Global Studies engaged in a university-wide debate about whether free speech should be regulated in the 21st century.

We challenge our students to understand the constitutional foundations of our society and government in all our programs at the University. This work is how legal rights are preserved.

Dr. Linda C. Ashar is a full-time Associate Professor in the Dr. Wallace E. Boston School of Business, teaching undergraduate and graduate courses in business, law, and ethics. She obtained her Juris Doctor from the University of Akron School of Law. Her law practice spans more than 30 years and includes business, employment law, nonprofit law, and litigation. She has received the 2021 Graduate Excellence in Teaching Award for the Dr. Wallace E. Boston School of Business.

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