freedom-of-speech first-amendment social-media
Are private social-media companies violating our Free Speech rights?
<p>There's been a lot of talk about social media companies like Facebook, and their occasional removal of user content.  This removal is unilateral and not subject to any sort of judicial review, so it's often called censorship. </p>

<p>Is this illegal?  Do the social media companies have a duty under the First Amendment to not censor users? </p>

<blockquote>
  <p>Is this illegal?</p>
</blockquote>

<p>No, subject to some possible narrow exceptions discussed below. </p>

<blockquote>
  <p>Do the social media companies have a duty under the First Amendment to
  not censor users?</p>
</blockquote>

<p>No. </p>

<p>Indeed, usually, there is greater liability exposure for failing to censor content, for example, by failing to honor a "take down notice" under <a href="https://en.wikipedia.org/wiki/Digital_Millennium_Copyright_Act#Title_II:_Online_Copyright_Infringement_Liability_Limitation_Act" rel="noreferrer">Title II of the Digital Millennium Copyright Act</a> based upon an alleged copyright violation, or for <a href="https://en.wikipedia.org/wiki/Section_230_of_the_Communications_Decency_Act" rel="noreferrer">failure to censor content related to potential sex trafficking</a>.</p>

<p>The First Amendment to the United State Constitution (which applies to state and local government via the 14th Amendment to the United States Constitution) is <a href="https://www.freedomforuminstitute.org/first-amendment-center/primers/free-expression-on-social-media/" rel="noreferrer">a limitation on the power of governmental actors only</a>.</p>

<p>This said, some state constitutions, such as California's, provide free speech protections not just from government action, but also in spaces that are privately owned, but are open to the public and constitute <em>de facto</em> public forums. The authority of California to expand its state constitutional protections to these private settings was confirmed by the U.S. Supreme Court in the case <em><a href="https://en.wikipedia.org/wiki/Pruneyard_Shopping_Center_v._Robins" rel="noreferrer">Pruneyard Shopping Center v. Robins</a></em>, 447 U.S. 74 (1980). It is conceivable that these doctrines could be expanded to public Internet forums in the case of California based social media companies (e.g., Facebook has its headquarters in <a href="http://www.headquartersinfo.com/facebook-headquarters-information/" rel="noreferrer">Menlo Park, California</a>; so does its sister platform <a href="https://www.wired.com/2016/10/instagram-got-new-office-looks-like-instagram/" rel="noreferrer">Instagram</a>; LinkedIn is based in <a href="https://en.wikipedia.org/wiki/LinkedIn" rel="noreferrer">Sunnyvale, California</a>; and Google is based in <a href="https://en.wikipedia.org/wiki/Googleplex" rel="noreferrer">Mountain View, California</a>).</p>

<p>There are also laws that <a href="https://www.foxrothschild.com/publications/rights-of-shopping-center-owners-to-regulate-free-speech-and-public-discourse/" rel="noreferrer">limit how employers can regulate employee speech</a> in a labor relations context, although most of them don't have constitutional dimensions. It is conceivable that these doctrines could limit social media platform's authority to limit some kinds of speech by their own employees, or in situations where the social media platform looked like it was acting as a mere agent of some other employer controlled by that employer for all practical purposes.</p>

<p>There has also been litigation related to free speech on social media regarding <a href="http://wisconsinlawreview.org/wp-content/uploads/2018/03/Sweeny-Camera-Ready.pdf" rel="noreferrer">the rights of governmental account holders to exercise the same kinds of account management that is available to other users</a>, implicating the First Amendment right to petition the government. The social media platform operator is not itself the primary target in these cases, but if it simply implements its terms of service neutrally with respect to all account holders, it could be facilitating a constitutional violation by its governmental account holders and could conceivably be held liable for aiding and abetting that violation of the law by a governmental account holder (in the context of a lawsuit for money damages this is <a href="https://scholarship.law.umt.edu/cgi/viewcontent.cgi?article=1879&amp;context=mlr" rel="noreferrer">a special subtype of something called a civil conspiracy</a>).</p>
