By Julian Oscar Alvarez, Litigation Department and Nathan M. Shaw, Corporate Department
In recent months, a growing number of commentators have suggested that an internet platform such as Twitter commits censorship when it chooses to remove content a user posts on one of its webpages, and/or bans that user.1 These critics, which now include Supreme Court Justices Samuel Alito and Clarence Thomas, suggest that such content moderation might be illegal under the First Amendment.2
Although the First Amendment constrains the government from "abridging the freedom of speech,"3 private companies such as Twitter are not obligated to guarantee free speech on their platforms. In fact, courts have found that they enjoy their own constitutional rights, including free speech. Recent disclosures by Twitter that it was pressured by government agencies to withhold (or post) information are not the subject of this article, but raise questions about whether or not the government may be abridging First Amendment rights by proxy.
A company like Twitter enjoys free speech protections when moderating its platform by removing user content, or making it less visible. Before this year, judges have consistently ruled that such activity is similar to a newspaper exercising editorial judgment over its articles. As the law stands now, Twitter rarely (if ever) must host content or users it does not want on its platform.
Circuit Split on Two Laws Regulating Content Moderation
Two separate federal circuit courts of appeal recently came out on opposite sides of this debate. This circuit split creates a now-unresolved issue of law. Two of the country's most populous states, Florida and Texas, adopted laws aimed at regulating how a social media company may moderate its platforms and apply its terms...
