The first amendment. Remember it? That's the one that says congress shall make no law inhibiting the right - RIGHT - of free speech. In fact, let's just go for the official language, shall we?
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
There it is in its entirety. To be clear, "abridge" has three primary synonyms in the thesaurus; abbreviate, curtail, and truncate. The main concern here is the specific phrase "or abridging the freedom of speech". The most understandable (in my mind, at least) is "curtail". They all mean the same thing. To cut short. Prevent.
We'll start here. It's important to understand that what this amendment is telling us is that the government, whether local, state, or federal, cannot create a law that says "you can't say that". Period. That's it. That's all. Nothing more.
What does that mean, exactly? We know, for instance, that defamation of character is something one can sue for. Doesn't that abridge the free speech rights of the individual who defamed them? They have a right to say anything they want, don't they?
This is where we get into a bit of a gray area, but you might be surprised by what the government uses as a litmus test in such cases. Ready for it?
Truth.
Yeah, they determine whether or not the individual is publicly spreading information that is untrue and hurtful to the target of the defamation. But, it's important to note that defamation is a civil suit. One cannot be charged with a crime for defamation; only material redress is considered as a remedy.
Let's touch on this in the press, for a minute, as well. People have sued, and won in court, suits against organizations that are considered members of the press. The press enjoys the same rights as individuals, based on the first amendment. And, the same standard is applied to them when it comes to alleged defamation; truth. If you spread lies, and it materially damages the target of the defamation, they can seek remedy. The individual or organization fomenting the lies cannot, however, face any criminal charges. That is what the first amendment was designed to protect.
We now move on to social media platforms. There's an argument to be made for providing a public service, much as what happened with electricity and telephone, once it became obvious how important they were to our day-to-day lives. Social media platforms, however, are a different animal.
While it's true PGE and AT&T may have started out as private companies and converted to essential services, social media is far from essential. One could make the argument that they are "vital" for ensuring critical information is distributed to the masses. The problem is, they're just not geared for viral activity.
There's the rub. And that doesn't even begin to address the issue of "truth", which we'll get to in a moment. Some messages, memes, pictures, or videos, do go viral. Obviously, that's a very specific term for the phenomena itself. The problem is, it's totally organic and completely, 100%, unpredictable. You can try to make something go viral, and there are a few tricks of the trade to make it happen, but an important public announcement just doesn't fit into the box that makes something viral.
I cannot cite any, but I do know there have been some studies on what makes a particular video, etc., go viral. One thing they have determined for sure, though, is the fact that you can never count on that happening. Herein lies the challenge with declaring social media as a way to quickly spread public information. There is simply no way to predict whether or not it will get the audience spread it needs.
Sure, there's a simple solution. When something deserving of being spread to everyone, such as the beginning of a pandemic, send a global message to everyone, right? Uh, Houston, we have a problem.
Here is where we bump up against the "truth" problem. It's not the only problem with this, either. The primary concern, though, is what source is considered a legitimate enough source of truth to be trusted with a global message to every user on the platform? After all, if you're going to send a message to every single user, despite any possible privacy settings that would prohibit such a message (more on that later, too), you want to ensure it is as accurate as possible and relevant to absolutely everyone. A good example of that is something rather undisputable, such as "a CORONA virus vaccine has just been released." This is something that is easily verifiable, and while there is a subset of users between 13 and 18, I'm sure, it is still information that is relevant to everyone, everywhere.
Not all "important" information fits into that box. Or is as easily verifiable as true. So, what do we do, force the social media platforms to spread information they may feel is inaccurate in the name of free speech? Remember, other media outlets have been sued for this, and lost. Asking them to do this would force them to decide between providing information they feel is demonstrably false and complying with the law. A law, mind you, which would abridge that organization's right to the freedom of speech.
These are "SOCIAL" media platforms. You don't call the fire department on Facebook. When you need the police in an emergency, you don't send a tweet. Social media platforms are not now, nor will they ever be, essential services. They just won't.
I did want to quickly address the privacy concern. You have the right to turn off certain notifications. Breaking through those barriers to send a message you didn't want could potentially be a breach of contract on the side of the social media platform. It's just one more reason that calling them an essential service simply doesn't make any sense.
Meat! There is some, and here it is:
Social media platforms are private organizations that have the right to make up their own rules and terms of service. Period.
These are not government entities. It doesn't matter if they "abridge" your rights to free speech. They have every right to do so. In fact, they spell out their right to do so in their terms of service. If you choose not to read or abide by them, that's on you. They will do what they want to do and when they want to do it, and they are 100% within their rights to do so, as long as it's in that EULA. They're pretty good at writing them, too, so it means they're gonna do what they want.
Let's be honest. Facebook and Twitter changed the world. They are products of the digital age we have evolved into. But, they are just that; products. Nothing more, nothing less. We choose to consume them or not. Like a computer or a TV. But, when we do choose to consume them, we do so by their rules and at their behest. If we choose to violate those rules, they can choose to ban us from their platform.
That's what Facebook and Twitter did to Trump. Nobody is above the law, and as a private entity, their contract is law, unless it violates a judicial statute. It should go without saying, but I'll say it anyway. Don't think an army of lawyers have not gone over the EULA with a fine tooth comb to make sure that they have every right to do what they do under the contract. It's in their best interests to make sure they are as compliant as possible.
Social media is not an essential service. I haven't logged into Facebook in months. Billions have never signed up for Facebook. Even in third-world countries, phones and phone service is often considered essential. Do you think they feel the same way about Facebook, Twitter, Pintrest, etc.? Most wouldn't even give the platforms the time of day.
Think about that before you decide to try and sue a social media platform for banning you. Did you violate their terms of service? In the words of Zoidberg:
"Well, my friend… you're screwed."
