Laurence Tribe: First Amendment fantasies in the social media debate

Privately owned social media platforms like Facebook have exploded with wealth and influence. These companies have thrived on an opaque business model that weaponizes a fantasy version of the First Amendment to justify offering users temptingly convenient forms of personalized information-sharing. Of course, we know now these services often end up manipulating the appetites of ordinary people, mining their habits and exploiting the resulting profiles by targeting what amounts to propaganda at those most likely to soak it up, spread it and end up being harmed by it.

The recent brouhaha over Facebook’s exile of President Trump and its use of a self-appointed panel of overseers to duck responsibility for the harmful lies Trump and his followers propagated on its platform — and the deadly insurrection they used it to pull off — seems likely to be only the first of a series of showdowns with the likes of Trump, who is bound to keep trying to get back onto Facebook. The controversy over Facebook’s actions (or lack thereof) may well be just the latest in what look to be a series of close encounters with the death of democracy. Because we might not survive the next such encounter, Americans must understand how Facebook and other social media platforms hide behind a fictionalized account of the First Amendment purpose-built to shield them from essential government regulation. 

One kind of regulation that these platforms fear at the moment is exposure to the kinds of civil lawsuits that regularly confront other media exercising similar editorial functions to decide what to communicate and whose opinions to post. Section 230 of the Communications Decency Act endows these platforms with near-absolute immunity for the harms foreseeably caused by their reckless or deliberate editorial decisions. The typical response to the growing clamor for revisiting that immunity, or to virtually any other regulatory proposal that would require platform owners to make good on their claims of social responsibility, is an invariably unexplained invocation of the First Amendment. 

The central myth deployed by platform owners rests on the emotionally resonant argument that kicking any user off a social media platform like Facebook, Twitter, or YouTube somehow violates the user’s free speech rights under the First Amendment. The motivating force of that argument is fear of victimization: If they can do it even to as powerful a figure as Trump, surely they can do it to you. 

Rather than dwelling on the distracting details of the way Facebook, unlike Twitter, has played with the possibility of inviting Trump back onto its platform, we need to confront that myth directly and expose its emptiness: The First Amendment has plenty to say about government regulation of the internet and about government surveillance. It has nothing at all to say about any supposed constitutional right to use a private platform in violation of the terms of use it has publicly announced. The reason is simple: The First Amendment, like the entire Bill of Rights, addresses only government action, not the action of private property owners. That’s not a bug but a feature.  

The Constitution, for all its flaws, has functioned with some success for more than two centuries precisely because it is, with very few exceptions, solely a meta-law that regulates law itself. It’s the kind of law that restricts the laws that governments make and the decisions they take, not the kind of law that tells you and me (or the owners of social media platforms) what any of us can or cannot do. Thus, although Facebook sometimes seems to see its privately owned company as a government unto itself, going so far as to call its self-created oversight board a “supreme court,” nothing in the Constitution suggests that any individual, least of all a government official or a former government official with plans to return to power, has a First Amendment “right” to use another’s private property as a platform for influencing the largest possible audience. When the Constitution has undertaken to regulate private conduct, as it did with the 18th Amendment during Prohibition, it has been an abject failure and has had to make a U-turn, as it did when the 21st Amendment repealed the 18th.

But the mirror image of the proposition that the First Amendment doesn’t restrict private platforms is another optical illusion. The private nature of a platform like Facebook or Twitter doesn’t mean that government officials can use it as a public forum to interactively engage their audiences while barring access to people whose views they detest. That’s what a federal appeals court held in 2019 in Knight First Amendment Institute v. Trump, involving Trump’s effort to kick some of his critics off his Twitter feed. Trump and his loyal followers unsuccessfully claimed in that case that he had a First Amendment right to censor citizens seeking to communicate with him on Twitter because that platform was privately owned. Yet he and his supporters claim now that the private owners of Twitter and Facebook have no right to boot him from their platforms for abusing their governing rules. What hypocrisy!  

The First Amendment imposes numerous limits on government action regulating or otherwise affecting the use of privately owned social media platforms, classic media like newspapers and cable networks, and even public utilities or so-called “common carriers” like the old telephone system — dumb pipes that exercise no curatorial or editorial functions but are obliged to carry whatever information anyone wants to transmit. The kinds of government action the First Amendment permits depend largely on the kind of communication system it is trying to influence. Among the earliest Supreme Court invocations of free speech principles to restrict government action affecting the use of telephone technology, for example, was its conclusion in a 1967 wiretapping case that electronic surveillance of telephone users had to be deemed a “search and seizure” requiring a warrant under the Fourth Amendment because conditioning people to expect that Big Brother was listening in on their calls would unduly chill freedom of expression.

So, too, the Supreme Court has held that any legal doctrine empowering courts to award damages to those who claim to have been harmed by lies spread by the media, including on platforms like Facebook, must be fine-tuned to avoid unduly chilling free speech and to preserve what judges call “breathing space” for a society based on the consent of the governed to function effectively. That’s particularly true when those suing are public officials or “public figures.” Although the contours of those adjustments aren’t fixed in concrete, they certainly don’t justify the sweeping immunity currently conferred on social media platforms by Section 230.

Beyond that, there’s ample Supreme Court precedent supporting the application of consumer protection laws, like those enforced by the Consumer Financial Protection Bureau and the Federal Trade Commission, to speech that tricks people into unwitting harm — which the identity-stealing algorithms of many platforms do in spades. There’s precedent, too, for application of unfair competition laws and Antitrust Laws to journalistic enterprises that improperly amass economic power or otherwise achieve unfair market dominance, which again the largest social media platforms may well have done. 

Confronted by serial purveyors of gross, damaging falsehoods, government officials are tempted to try filtering out in advance speech they deem false and dangerous. They reason that the truth never catches up with the lie, so letting the lie go viral makes it impossible ever to repair the damage. That might be true. But it doesn’t follow that the government may muzzle speech before it takes place. The First Amendment’s command that Congress “make no law abridging … the freedom of speech” has long been held to bar the government from imposing “prior restraints” on speech. Such restraints, backed by the power of contempt, are just too effective at bottling up ideas, and a core aim of the Constitution was to forbid government from playing a censorship role as powerful as that created by the infamous Licensing of the Press Act passed by the English Parliament in 1662 to prevent the printing, selling or importation of “heretical seditious schismatical or offensive Bookes or Pamphlets” anywhere in the British Empire.

The upshot is that well-settled legal doctrines implementing the First Amendment (as well as the Fourth) exist to support a framework for regulating the increasingly ubiquitous social media platforms that profoundly shape our everyday lives and the character of our society. The world is enamored of social media platforms; they beguile a global audience. Yet, however much we may love these new technologies, we must not blind ourselves to the tricks and traps and fine print lest we lose our capacity to remain free citizens in the democracy we’re still struggling to build.

Laurence H. Tribe is the Carl M. Loeb University Professor and Professor of Constitutional Law Emeritus at Harvard, the author of many books about the Constitution and the Court, and a Supreme Court advocate. Follow him on Twitter @tribelaw.