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Is banning Trump from Facebook a First Amendment issue? Clarence Thomas, other conservatives say it is

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Illustrations: Colin Smith/USA TODAY Network, and AP

The Facebook oversight board's decision this month to extend the suspension of former President Donald Trump's account  raised the ire of some on the right. Trump's account has been frozen since Jan. 7, after he praised supporters who launched a deadly attack on the Capitol, but Facebook said it would consult experts to determine when "the risk to public safety has receded." 

"If Big Tech can ban a former president, what’s to stop them from silencing the American people next?" said Republican National Committee chair Ronna McDaniel.

Conservatives' reactions reflect a new push to expand First Amendment free speech protections to privately owned forums. Dozens of states – many of them run by Republicans – have proposed legislation targeting private companies' policies. And conservative U.S. Supreme Court Justice Clarence Thomas recently questioned the constitutionality of private company control over user content. 

Facebook Oversight Board upholds ban on Donald Trump, but opens door to possible return
Staff video, USA TODAY

However, the First Amendment, which states that "Congress shall make no law ...  abridging the freedom of speech,"   applies to government entities, not private domains.

"The First Amendment only restrains government; it does not restrain a private company. In fact, those companies have their own First Amendment right to determine, as would a newspaper, for example, what will appear on their sites," said Gene Policinski, senior fellow for the First Amendment at the Freedom Forum.

A discrepancy persists between what some politicians want from big tech and companies' rights under the First Amendment, according to Ken Paulson, director of the Free Speech Center at Middle Tennessee State University and former editor-in-chief of USA TODAY. 

"The bottom line remains that Facebook is a private company, and it has its own First Amendment rights to decide what it wants to put on its service,"  Paulson said.

Gene Policinski, senior fellow for the First Amendment at the Freedom Forum
Terms of Service are a contract between me and the company, and they lay those out, and they have a right to enforce those. It is not a free speech matter.

Some conservative Republicans have long criticized tech companies' ability to regulate speech on their platforms, claiming infringement of free speech when someone is banned or suspended for violating usage policies. 

"There are a host of people who, for example, find that when they make a statement that Facebook or Twitter or someone deems to be threatening ...  and they're banned or suspended, that it somehow is a violation of free speech rights," said Policinski. "Terms of service are a contract between me and the company, and they lay those out, and they have a right to enforce those. It is not a free speech matter."

Twitter and Snapchat permanently banned Trump after the Jan. 6 attack on the Capitol, and YouTube, a Google service, suspended his accounts. 

What is a public forum?

What is a public forum?

Jennifer Lambe, a University of Delaware communication professor who specializes in First Amendment rights, says an argument that social media platforms have become public forums meriting congressional oversight is picking up steam.

Trump's allies within the Republican Party blasted Facebook's May 5 decision to maintain the ban on Trump, repeatedly invoking the phrase "free speech."
Trump's allies within the Republican Party blasted Facebook's May 5 decision to maintain the ban on Trump, repeatedly invoking the phrase "free speech."
Colin Smith/USA TODAY Network, and AP

The Congressional Research Service states that "state action doctrine provides that constitutional free speech protections generally apply only when a person is harmed by an action of the government, rather than a private party." In other words, government cannot limit free speech, but private industry can.

Lambe said colleagues have presented the idea of expanding the state action doctrine "so that the First Amendment applies to private companies in particular circumstances, like the ones that social media have today."

Some legal experts say the Supreme Court has expanded the doctrine before. In Marsh v. Alabama (1946) the court ruled that a town privately owned by a company was subject to First Amendment principles.

Paul Domer in the Notre Dame Law Review argued social media companies fall under the special expansion established in the Marsh case.

"Therefore, those companies, though private, could be subject to First and Fourteenth Amendment claims of violating the right of free speech," Domer wrote.

Lambe said a push to expand the doctrine to include big tech companies would come under legal scrutiny. But due to the makeup of the judiciary, which leans conservative, she believes some Republicans might try.

"I suspect that this or something like this will eventually make its way to the Supreme Court in the next few years, and I suspect that the Supreme Court will be amenable to maybe making this extension of the state action doctrine," Lambe said.

Justice Clarence Thomas’ opinion

Justice Clarence Thomas’ opinion

Weeks before Facebook's oversight board extended Trump's ban,  Thomas advanced arguments for big tech oversight in an opinion when Twitter users blocked by Trump's public account sued the president. 

Thomas questioned the constitutionality of private firms' control over speech on their platforms, as outlined in Section 230 of the Communications Decency Act of 1996. The act allows social media platforms to regulate their own content and grants legal immunity for removing posts that violate company policies.

Associate Justice Clarence Thomas, in a 12-page opinion that questioned the constitutionality of certain private firms' control over free speech
Today’s digital platforms provide avenues for historically unprecedented amounts of speech, including speech by government actors. Also unprecedented, however, is the concentrated control of so much speech in the hands of a few private parties.

"Today’s digital platforms provide avenues for historically unprecedented amounts of speech, including speech by government actors," Thomas wrote. "Also unprecedented, however, is the concentrated control of so much speech in the hands of a few private parties. We will soon have no choice but to address how our legal doctrines apply to highly concentrated, privately owned information infrastructure such as digital platforms."

"Right now there are legislators who are interested in rewriting section 230 so that it gives Facebook and Twitter and other social media less latitude and particularly, less protection from libel suits," Paulson told USA TODAY.

Legislative efforts to reign in big tech

Legislative efforts to reign in big tech

Members of the Florida Legislature explicitly targeted tech companies when Republicans introduced Senate Bill 7072a punitive bill against social media platforms, after  Trump was banned from Twitter. 

Gov. Ron DeSantis, a Trump ally, signed S.B. 7072 into law last month. Under the new law, big tech companies have to establish a method of identifying a person running for office.  A platform would also face fines of $250,000 a day for suspending politicians' accounts for 60 days or longer. Similar legislation has been proposed in state legislatures around the country, Paulson says.

"There are a disquieting number of pieces of legislation that are being passed around state to state right now that can potentially infringe on First Amendment rights," Paulson said.

The Florida bill was one of dozens introduced this year, nationwide, centered on how private companies moderate content, according to The New York Times.  

Accusations of social media bias

Accusations of social media bias

Some conservatives claim social media giants Facebook, Twitter and Google collude with liberals to censor conservative speech online. 

Brent Bozell, the founder of the conservative Media Research Center, said more than 2,200 examples of what he considers censorship have been compiled on Free Speech America, a branch of the center.

"The problem with Section 230 is that it allows the most powerful companies in human history to censor online speech and interfere in elections without any recourse," he said. “We are coordinating with our allies in Washington, in the states and around the world to come up with legislative, regulatory and, if necessary, legal remedies to the simple fact that Big Tech has too much control over our lives."

Some political conservatives have charged that "social media giants" Facebook, Twitter and Google collude with far-left liberals to censor conservative speech online.
Some political conservatives have charged that "social media giants" Facebook, Twitter and Google collude with far-left liberals to censor conservative speech online.
Colin Smith/USA TODAY Network, and AP

But ensuring conservative opinion is fairly represented on internet platforms is not the government's responsibility, said Policinski.

"If there's an absence of conservative voices on social media, I assume that enough conservatives who feel that way will flock to a site which offers a more conservative viewpoint," he said. "That is the marketplace of ideas. There is no guarantee that under the First Amendment – after it ensures the government doesn't prevent or punish you for speaking – that anyone will listen. That's up to you."

Stephen Puetz, senior vice president of political consulting firm Axiom Strategies, which represents Republican clients, told USA TODAY that Republicans are trying to expose an inherent bias in social media bans and suspensions.

"There's folks who make the argument that these are private companies and they can do what they want," he said.

Legislation like the recent Florida law, as well as other proposed regulations, are efforts to "encourage more thoughtful review before banning people," according to Puetz.

"Limiting speech too aggressively and unfairly is not good for the public discourse in our country."

Paul Barrett, deputy director of the New York University Stern Center for Business and Human Rights
There is a broad campaign going on from the right to argue that they’re being silenced or cast aside ... . We can’t just allow that to be a debating point. It’s not legitimate. It’s not supported by the facts.

But Paul Barrett, deputy director of the New York University Stern Center for Business and Human Rights, said that complaints of censorship on social media from Republicans and conservatives are unfounded.

“There is a broad campaign going on from the right to argue that they’re being silenced or cast aside, and that spirit is what is helping to feed the extremism that we are seeing in our country right now,” he said. “We can’t just allow that to be a debating point. It’s not legitimate. It’s not supported by the facts.”

Paulson said big tech companies reserve the right to remove content they deem harmful according to their policies.

"Clearly there are things that Facebook is taking down that that they view as harmful and that some conservatives believe is valuable. But that's Facebook's right," he said.

"Facebook can exercise its First Amendment rights and decide what it wants to share with the public. These principles are clear," he said. "Protecting businesses and preventing inappropriate regulation has always been a conservative value, so this is all very surprising."

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