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Attorneys explain social media bans do not violate First Amendment rights

Social media bans don't infringe on First Amendment rights, attorneys say
Social media bans don't infringe on First Amendment rights, attorneys say

MIAMI – In the wake of the siege on the US Capitol, President Donald Trump was permanently banned from Twitter and blocked on several other social media sites.

Alternative sites like Parler are also being shut down, but according to legal experts, social media bans don’t violate the first amendment.

“It may be unwise to exclude some people from those platforms,” said attorney and medial law professor at Syracuse’s Newhouse School of Public Communications Nina Brown. “The first amendment allows Twitter to decide how it wants to speak.”

While some have said Twitter’s ban on President Donald Trump’s accounts violate his first amendment rights, Brown said the argument doesn’t hold water. That’s because the first amendment doesn’t apply to private companies, and what is more, arguments that perhaps Twitter should be forced to re-activate him, “would actually violate twitter’s first amendment rights,” she said.

This Friday, Jan. 8, 2021 image shows the suspended Twitter account of President Donald Trump. On Friday, the social media company permanently suspended Trump from its platform, citing "risk of further incitement of violence." (AP Photo)

When it comes to free speech, there are restrictions. Former State and Federal Prosecutor David Weinstein explained that while hate speech is protected, a line is crossed when that speech incites imminent lawless action.

“In many ways, people make hateful statements, but are the words they are saying intended to incite others engage in imminent harm,” Weinstein said.

The question, which comes from a 1969 supreme court case, Brandenburg versus Ohio, the supreme court established a two-part test to determine when speech advocating violence loses its first amendment protections.

The government can restrict speech when it is directed at inciting or producing imminent lawless action and likely to incite or produce such action.

Social media and the way ideas are shared may be new, but limits to certain speech are grounded in case law.


Brandenburg v. Ohio (1969): “The Court used a two-pronged test to evaluate speech acts: (1) speech can be prohibited if it is ‘directed at inciting or producing imminent lawless action’ and (2) it is ‘likely to incite or produce such action.’”

Read the case and listen to the oral arguments: https://www.oyez.org/cases/1968/492

Manhattan Community Access Corp. v. Halleck (2019): Supreme Court ruling found that the First Amendment doesn’t apply to private companies. " Justice Brett Kavanaugh authored the opinion for the 5-4 majority. The Free Speech Clause prohibits the government from abridging a person’s speech, and the Court’s state-action doctrine determines whether an actor is the government, subject to the First Amendment, or a private entity, who is not.”

Read the case and listen to oral arguments: https://www.oyez.org/cases/2018/17-1702

About the Author:

Christina returned to Local 10 in 2019 as a reporter after covering Hurricane Dorian for the station. She is an Edward R. Murrow Award-winning journalist and previously earned an Emmy Award while at WPLG for her investigative consumer protection segment "Call Christina."