UNLV professor on deplatforming Trump and limits of free speech

Bizar Male

Matt Rourke / AP

This April 26, 2017, file photo shows the Twitter app icon on a mobile phone in Philadelphia.

The Jan. 6 siege on the U.S. Capitol moved Twitter, Facebook, Instagram, even Snapchat and Pinterest, among other social media platforms, to dump former President Donald Trump for fomenting insurrection. 

Amazon dropped the Henderson-based, conservative-friendly platform Parler from its web-hosting service after Google and Apple removed it from their app stores for the same. More recently, Twitter temporarily suspended Trump ally Georgia Rep. Marjorie Taylor Greene for promoting unfounded QAnon conspiracy theories.

Condemnation of the bans swiftly followed. 

They are not unconstitutional attacks on free speech, says UNLV journalism professor Stephen Bates. Bates, who teaches classes on free speech, censorship, privacy, and media politics, tells the Sun more:

Legally, is deplatforming a violation of free speech rights?

No. The First Amendment protects you against the government. That’s called the state action requirement. A private entity can silence speech for any reason, with a few exceptions. Common carriers, such as the phone company, generally can’t kick you off the platform because they don’t like your message, but social media and internet providers aren’t common carriers.

When would deplatforming by a private entity be appropriate? When would it be appropriate by the government?

In court, you have to make legal arguments, but in everyday life, we talk about freedoms that go beyond the Constitution. If my daughter catches me reading her diary, she won’t be placated when I tell her that there’s no Fourth Amendment violation because I’m not a cop.

Just as privacy is bigger than the Fourth Amendment, free speech is bigger than the First Amendment. As a matter of free speech, I think we should be wary of those who want corporations to police speech in this fashion. Sooner or later, the power to silence your enemies is going to get used to silence you.

As for the government, under the First Amendment, it can punish speech for various reasons, including inciting imminent violence. Whether it’s appropriate will depend on the circumstances.

How likely would a deplatformed plaintiff be to succeed if they sued on free speech grounds after being suspended or kicked off a service? 

They would be exceedingly unlikely to win a First Amendment case. Antitrust and contract law are different, and the outcome would depend on the facts.

First Amendment law won’t help plaintiffs in such cases. Other areas of law, such as contract, might help.

Could this be a critical entry into First Amendment canon —  at least the broader conversation, if not actual landmark case law? 

Not likely. The state action requirement is bedrock constitutional law.

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