Congress Shall Make No Law, so Someone Else Should: Why the First Amendment’s “Free Speech” Promise Does Not (and Should Not) Extend to Social Media Companies

Bryan Y. Baniaga - UC Davis School of Law
Vol. 57
April 2024
Page 2869

In today’s digital era, speech and expression have migrated from the physical realm to the digital realm. Over sixty percent of the world’s population, a staggering 4.9 billion people, use social media. Social media platforms provide users with the capacity to speak on a truly global level; billions of daily users share content, offer opinions, and report news to a digitally-connected world audience. Such modern-day oration does not go unmoderated. The private entities that own these platforms (hereinafter, “Company” singularly or “Companies” collectively) exercise great unilateral discretion in controlling these platforms. All users of social media platforms are contractually bound to (and subject to) a platforms’ terms of use. Such terms govern user conduct, which largely comprises what users post online. Moreover, such terms usually lay out the sanctions for violations thereof, which typically include suspensions and indefinite bans. Simply put, a platform’s terms-of-use are its laws. Users that offend those laws are subject to punishment. 

Recent suspensions of certain high-profile, offending users have garnered widespread discussion over the extent of these Companies’ power to limit user speech. Some critics allege that these suspensions impede upon the freedom of speech, a right guaranteed by the First Amendment to the United States Constitution. At first, refuting this argument seems simple enough — because the text of the First Amendment protects against abridgement of speech by the government, and not by private actors, a free-speech analysis is out of the question here. However, times (and speech) have changed since the Constitution’s drafting. Namely, communicative technology and methods have evolved immensely, with the advent of smartphones and social media. These advances have led some in the legal community to suggest that the First Amendment should restrict private entities from abridging the freedom of speech. Emboldened by Justice Kennedy’s dicta in the recent case Packingham v. North Carolina, this movement calls for a reconceptualizing of the First Amendment to include restrictions on private entities in the same manner as governments with regards to abridging free speech. This Note argues against such expansion.

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