FIRST AMENDMENT CENSORSHIP: SOCIAL MEDIA

OLIVIA BRIGHT

NORTH CAROLINA AGRICULTURAL & TECHNICAL STATE UNIVERSITY

JOMC 393-03A COMMUNICATIONS LAW & ETHICS

GARY GUFFEY

OCTOBER 8, 2020
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TABLE OF CONTENTS

Page

WHAT IS THE FIRST AMENDMENT?..………………………………………………….…. 3

APPLYING THE FIRST AMENDMENT…………….…………………………………..…,.. 4

SOCIAL MEDIA TERMS AND CONDITIONS….…...……………………………….……... 5

IS CENSORSHIP A VIOLATION OF FIRST AMENDMENT RIGHTS?................................ 6

FREEDOM OF SPEECH IN REGARD TO SOCIAL MEDIA...………….……...…………… 7

BIBLIOGRAPHY………………………………………………………………………………. 8
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What is the First Amendment?

The First Amendment is a document that was adopted in 1791 that protects civil liberties

under the United States Constitution along with the other nine amendments, that make up the Bill

of Rights. The First Amendment directly states that “Congress shall make no law respecting an

establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of

speech, or the press; or the right of the people peaceably to assemble, and to petition the

Government for a redress of grievances.” This document protects United States citizens freedom

of speech, freedom of religion, freedom of the press, freedom of assembly, and freedom of

petition, and directly correlates to the American democracy. Democracy allows citizens of the

United States to self-govern, and the First Amendment helps to instill self-governance by giving

people access to their rights. Freedom of speech grants American citizens the right to express

themselves and their opinions without government interference and to speak freely in public.

Although the First Amendment grants freedom of speech, the types of speech that are protected

by the First Amendment is up to the courts. Freedom of religion was made to separate the church

and the state to overall avoid religious conflict within the country. It grants American Citizens

the right to practice their religion of choice freely and prohibits the government from

encouraging or promoting religion. Freedom of press allows the media to investigate and report

the government’s wrongdoings and disperse them to different media outlets. Freedom of

assembly grants American citizens the right to conduct peaceful assembly such as protest, but it

does not protect the reason behind the assembly. Freedom of petition grants American citizens

the right to gather signatures in support of a cause and to present a request to the government

without punishment from the government (Hahnenberg, 2020). The First Amendment was

created to guarantee American citizens basic rights, but over the years, there has been much
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controversy on when the First Amendment can be applied, who it protects, and what it protects

people against.

Applying the First Amendment

As previously stated, the First Amendment was written to protect the freedoms and rights

of American citizens. There are different circumstances in which the first amendment applies and

does not apply. If someone is fired from a job that is not owned by the government for speaking

out against a political issue or even wearing a graphic t-shirt that exhibits their belief, it is not a

first amendment issue. If someone is arrested for voicing their opinion on politics or saying

something about the government, it is a matter of the First Amendment because this action is

censorship by the government. The First Amendment applies to the legislative, executive, and

judicial branches along with the courts, juries, executive agencies, and executive officials. The

First Amendment also applies to government-owned facilities such as public school and

university systems, public employers, and public housing facilities. As previously stated, the

First Amendment protects American citizens against government limitations to freedom of

speech, freedom of religion, freedom of the press, freedom of assembly, and freedom of petition.

There is no specific age requirement, ethnicity, race, gender, or sexual orientation

someone has to be to exercise their First Amendment rights. This document even applies to

people who are visiting the United States from other countries and people who live in the United

States but are not exactly considered citizens of the country. Not only does it restrict the

government from censorship, but it also restricts the government from forcing or requiring

people to say or do something they do not want to say or do. The First Amendment gives people

access to freedoms and grants rights to those who are in America that citizens in other countries

do not have access to.

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Social Media Terms and Conditions

Social media platforms such as Instagram, Twitter, and Snapchat can censor, block, and

remove users’ posts and comments from their page and on other users’ pages. There have been

many complaints from users about a violation of their First Amendment rights in terms of

censorship of content. All social media platforms along with other apps have something called

“Terms and Conditions” that users must agree to before downloading an app. These terms of use

include actions of use owners of the app will not tolerate and what the owners of said app reserve

the right to do if a user violates any terms of use.

Instagram’s terms of use restrict users from the impersonation of others or posting

inaccurate information. It also restricts users from doing anything unlawful, misleading,

fraudulent, illegal, creating accounts to access others’ information in unauthorized ways, and

posting anything that is private or confidential in violation of someone else’s rights (“Instagram,”

2018). The Twitter website states, “We reserve the rights to remove Content that violates the

User Agreement, including, for example, copyright or trademark violations or other intellectual

property misappropriation, impersonation, unlawful conduct, or harassment.” (“Twitter,” 2020).

This means that Twitter can censor content without being in violation of users’ First Amendment

rights in the eyes of the law. Snapchat has a section in its Terms of Service stating how users

must respect others’ rights and what is not allowed for users to do in terms of others. Snapchat

users must not post anything that infringes upon someone else’s rights to publicity, privacy,

copyright, trademark, etc. Users cannot bully, harass, defame, spam, solicit, or intimidate others

using Snapchat (“Snapchat,” 2019). Users agree to these rules before downloading social media

apps and must abide by them, if not, users are at risk of account disablement, post blocking, or

post removal.
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Is Censorship a Violation of First Amendment Rights?

While censorship of social media content can seemingly take away or restrict one’s First

Amendment rights to freedom of speech and expression, private entities have a right to these

restrictions according to the First Amendment. Nadine Strossen, professor of law at New York

Law School and former president of the American Civil Liberties Union, answers the question,

“do people have a right not to be kicked off a social media platform?” She answers this question

by explaining how the First Amendment was written to protect American citizens from

governmental infringement on their First Amendment rights. Since platforms such as Instagram,

Twitter, and Snapchat are privately owned entities, the First Amendment does not hold the same

weight and in many cases does not apply nor will the argument hold in court. The terms and

conditions that were previously discussed are all authorized and viable according to the law

because they are not owned by the government; therefore, the First Amendment does not protect

people from these private entities and their rules and regulations.

In Laura Steins’ book labeled Speech Rights in America: The First Amendment,

Democracy, and the Media, she quotes the very first part of the First Amendment to the United

States Constitution that states “Congress shall make no law…” This piece of the First

Amendment is one of the most important in terms of wording because it tells people that The

First Amendment protects them from the government, otherwise known as Congress, but it says

nothing about entities not owned by the government. Laura also states that the First Amendment

safeguards democratic speech rights, protects the right to speak in public places, and prohibits

government censorship (Stein, 2006). So, is censorship a violation of First Amendment rights?

The answer varies. If it’s government censorship, the answer is yes, censorship is a violation of

American citizens’ First Amendment rights. If censorship is from a privately-owned social media
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platform, the answer is no, censorship, in that case, is not a violation of American citizens First

Amendment rights.

Freedom of Speech in Regard to Social Media

Everyone in America including social media users has a right to freedom of speech.

Social media users are still allotted their rights to freedom of speech but there are certain

limitations that must be followed because the platforms are privately owned as mentioned in the

section labeled “Social Media Terms and Conditions.” There have been many times when

someone has tried to sue a platform for violating their first amendment rights. “Currently, federal

law does not offer much recourse for social media users who wish to challenge a social media

provider’s decision about whether and how to present a user’s content. Lawsuits predicated on

these sites’ decisions to host or remove content have been largely unsuccessful.” (Brannon,

2019). This direct quote from the Congressional Research Service attests to how the courts do

not handle these types of cases because there is no direct violation of users’ First Amendment

rights. According to the American Bar Association, Texas applied a state action doctrine to

dismiss a lawsuit filed by a private individual against Facebook. The courts stated that “the First

Amendment governs only governmental limitations on speech.” (Hudson, 2020).

In conclusion, the First Amendment does not come into much affect when dealing with

social media because social media platforms are privately owned entities. When it comes to

government censorship or censorship of public facilities owned by the government, First

Amendment rights can be violated because the First Amendment protects against governmental

interference to the freedoms stated in the document. Overall, the First Amendment protects

American freedom of speech, freedom of religion, freedom of the press, freedom of assembly,

and freedom of petition, making the United States a self-governed nation.

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Bibliography

Brannon, V. (2019, March 27). Free Speech and the Regulation of Social Media Content.

Congressional Research Service. https://fas.org/sgp/crs/misc/R45650.pdf

This document talks about the controversy in whether or not social media platforms

removing, banning, or restricting content disrupts users first amendment rights and if

congress should regulate the issue. There is a counter to regulation of social media by

congress stating that the government stepping in would further infringe upon users first

amendment rights.

Hahnenberg, E. (n.d.). The Right to Petition Government. Learning to Give.

https://www.learningtogive.org/resources/right-petition-government

This article takes a closer look at the five freedoms from the First Amendment and defines

what is meant by freedom of petition.

Hudson, D. (n.d.). In the Age of Social Media, Expand the Reach of the First Amendment.

American Bar Association.

https://www.americanbar.org/groups/crsj/publications/human_rights_magazine_home/the-

ongoing-challenge-to-define-free-speech/in-the-age-of-socia-media-first-amendment/

This article discusses how social media platforms such as Instagram, Twitter, Facebook, etc.

censor speech and content which overall censor our first amendment right to freedom of

expression and freedom of speech. David Hudson talks about both freedom of speech and

expression not including governmental interference, yet private entities can infringe upon

the rights.
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Instagram. (2018, April 19). Terms of Use. Instagram.

https://help.instagram.com/581066165581870?ref=dp

This site contains Instagram’s Terms of Use and explains what is and is not allowed while

using the app.

Snapchat. (2019, October 30). Snap Inc. Terms of Service. Snap Inc.

https://www.snap.com/en-US/terms

This site contains Snapchat’s Terms oof Service and explains what is and is not allowed

while using the app.

Stein, L. (2006). Speech Rights in America : The first amendment, democracy, and the media.

ProQuest Ebook Central.https://ebookcentral-proquest-com.ncat.idm.oclc.org

This book discusses first amendment rights in America, specifically freedom of speech, and

how the courts seem to be more lenient to freedom of speech when it comes to media

owners than regular citizens of America. In this book, the author, Laura Stein, voices her

argument about the First Amendments job to protect freedom of speech but instead limits

the citizens of America to their rights and corrupts the democracy.

Strossen, N. (n.d.). Does the First Amendment Apply to Social Media Companies. Talks On Law.

https://www.talksonlaw.com/briefs/does-the-first-amendment-require-social-media-

platforms-to-grant-access-to-all-users
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In this video, Nadine Strossen, professor of law at New York Law School and former

president of the American Civil Liberties Union, poses the question, “do people have a right

not to kicked off a social media platform?” She explains the logistics to the first amendment

by explaining how it only protects our rights against governmental interference, not private

entities.

Twitter. (2020, June 18). Twitter Terms of Service. Twitter Terms of Service.

https://twitter.com/en/tos

This site contains Twitter’s terms of service and explains what is and is not allowed while

using the app.