Over the past couple of days there a been a lot of outrage amongst some that the censoring of the President’s various social media accounts by the social media companies is violation of “free speech.” While it might seem like an oxymoron and counter to popular belief, the simple answer is there is no violation of the “free speech” in terms of the constitution when a private company limits speech regarding its private products and platforms. The First Amendment which guarantees “freedom of speech” does not apply to private companies; it applies only to situations were the federal or state governments unlawfully attempts to stifle speech.[i]
The First Amendment reads:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
(1789) The key to understanding the Amendment regarding in what situations it applies to is the word “Congress.”[ii] The First Amendment was originally only applicable to the federal government, but the Supreme Court remedied that in Cantwell v. Connecticut, 310 U.S. 296 (1940) making the Amendment applicable to all the states.
Cantwell was one of the first cases to define the “incorporation doctrine.” Id. The “incorporation doctrine” is the idea that the fundamental rights contained within the Bill of Rights would apply to the several states via the Fourteenth Amendment’s “due process clause” and that the states would not be allowed to infringe upon any of those constitutional rights without a compelling reason. Id. Overruling Barron v. Baltimore, 32 U.S. 243 (1833). The Court wrote:
We hold that the statute … deprives them of their liberty without due process of law in contravention of the Fourteenth Amendment. The fundamental concept of liberty embodied in that Amendment embraces the liberties guaranteed by the First Amendment. … The Fourteenth Amendment has rendered the legislatures of the states as incompetent as Congress to enact such laws. …
Id., at 303. Cantwell was a religious freedom case and not a “free speech” case.[iii]
When dealing with Twitter, Facebook, Instagram, Pinterest, Parler, these apps and computer services are owned and operated by private companies. Although these applications have created a public forum for all sorts of speech, these applications are not operated by the local, state, or federal governments. In fact, these apps are exclusively run by private companies.
Being private companies, these entities can change and alter what types of speech will or will not be tolerated. Contrary to popular sentiment, private companies can limit, restrict, or outright ban certain speech, topics, or speakers. Think employee handbook as an example of the type of things that a private company may require or forbid. So long as the employee handbook and workplace policies do not violate your civil rights (different from the fundamental rights contained within the Bill of Rights), private employers can limit and/or restrict your First Amendment “free speech” rights at work (because the companies are not government agencies).[iv] The ban gets a little more complicated when the employer is a governmental agency.
Anthony Candela is the Trial Dog and a Board-Certified attorney. He opened the Candela Law Firm, P.A. in 2014 and handles criminal trials and appeals (as well as estate planning, wills, and trusts). He received his J.D. from Duquesne University School of Law in 2000 and his B.A. in Political Science from King’s College in 1996. As an expert in criminal law and procedure, he has tried over a hundred cases to verdict. Since 2008, he has been certified and recertified by the Florida Bar in Criminal Trial three times. He has also argued several dozen appeals. In the federal system, he is admitted to the Middle District of Florida and the Eleventh Circuit Court of Appeal. #candelalawfirm #thetrialdog
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[ii] After the Constitution was ratified, the people of the several states pushed for a “Bill of Rights” because of the governmental abuses the colonists had endured at the hands of the British Troops and the Crown. The Bill of Rights Institute writes: The first 10 amendments to the Constitution make up the Bill of Rights. James Madison wrote the amendments, which list specific prohibitions on governmental power, in response to calls from several states for greater constitutional protection for individual liberties. For example, the Founders saw the ability to speak and worship freely as a natural right protected by the First Amendment. Congress is prohibited from making laws establishing religion or abridging freedom of speech. The Fourth Amendment safeguards citizens’ right to be free from unreasonable government intrusion in their homes through the requirement of a warrant. The Bill of Rights was strongly influenced by the Virginia Declaration of Rights, written by George Mason. Other precursors include English documents such as the Magna Carta, the Petition of Right, the English Bill of Rights, and the Massachusetts Body of Liberties. One of the many points of contention between Federalists, who advocated a strong national government, and Anti-Federalists, who wanted power to remain with state and local governments, was the Constitution’s lack of a bill of rights that would place specific limits on government power. Federalists argued that the Constitution did not need a bill of rights, because the people and the states kept any powers not given to the federal government. Anti-Federalists held that a bill of rights was necessary to safeguard individual liberty. Madison, then a member of the U.S. House of Representatives, altered the Constitution’s text where he thought appropriate. However, several representatives, led by Roger Sherman, objected, saying that Congress had no authority to change the wording of the Constitution. Therefore, Madison’s changes were presented as a list of amendments that would follow Article VII. The House approved 17 amendments. Of these, the Senate approved 12, which were sent to the states for approval in August 1789. Ten amendments were approved (or ratified). Virginia’s legislature was the final state legislature to ratify the amendments, approving them on December 15, 1791. https://billofrightsinstitute.org/e-lessons/bill-of-rights-of-the-united-states-of-america-1791
[iii] See Barron v. Baltimore, 32 U.S. 243 (1833). The first case to announced that the Bill of Rights did not apply to the several states. It was overruled by the XIV Amendment to the United States Constitution.