Losing the Thread

A First Amendment analysis of social media deplatforming

Rom Bar-Nissim

“Deplatforming: the action or practice of preventing someone holding views regarded as unacceptable or offensive from contributing to a forum or debate, especially by blocking them on a particular website.” - Oxford English Dictionary

The debate around deplatforming reveals much about ourselves and our society. The discussion about the legal, political and sociological implications of deplatforming will often test the boundaries of our fidelity to the First Amendment and freedom of speech. From a legal standpoint, the law affords social media platforms wide discretion and protection regarding deplatforming. There is express judicial hostility towards interfering with deplatforming. This epitomizes the marketplace of ideas theory of the First Amendment—i.e., that ideas gain legitimacy through vigorous, open and uninhibited public debate. This means the controversy regarding deplatforming must be resolved through public discussion and not through the machinery of government. With the discussion around deplatforming thus squarely in the hands of the people—as opposed to the courts—the way society approaches deplatforming tests how responsible we are in preserving the integrity of the marketplace of ideas and our fidelity to freedom of speech.

The marketplace of ideas theory serves as an important lens to examine the debate surrounding deplatforming social media users. Those who argue against deplatforming primarily advance three arguments:

1. Modern Public Square: that social media is the modern public square and the law should treat it as any other public square;

2. Big Tech Monopoly: that large tech companies exercise monopolistic control of individuals’ ability to communicate to the public; and

3. Discriminatory Application: that deplatforming is applied in a discriminatory manner that targets certain viewpoints and speakers.

At first blush, these arguments might appear to advance freedom of speech. In practice, however, these arguments do the exact opposite of their intended purpose: they commit violence to the First Amendment and place their thumb on the scales of freedom of speech.

The Marketplace of Ideas Theory

“The best test of truth is the power of the thought to get itself accepted in the competition of the market.”[1] This line from Justice Oliver Wendall Holmes Jr.’s dissent in Abrams v. United States is not only the origin of the marketplace of ideas theory of the First Amendment, but also of modern First Amendment jurisprudence as a whole.  This legal principle was explicitly recognized fifty years later in Red Lion Broadcasting Co v. Federal Communications Commission.[2] In Red Lion, the Supreme Court stated, “the purpose of the First Amendment is to preserve an uninhibited marketplace of ideas in which truth will ultimately prevail” to ensure “the right of the public to receive suitable access to social, political, esthetic, moral, and other ideas and experiences.”[3] 

At its core, the marketplace of ideas theory of the First Amendment takes the position that the government should not involve itself in regulating public discourse. Indeed, this is why content-based regulations, i.e., regulations implicated by the subject matter of the speech, and viewpoint-based regulations, i.e., regulations implicated by the viewpoint expressed in the speech, are subject to strict scrutiny review and often struck down.

This is not to say that the marketplace is perfect. To the contrary, as the Court aptly noted, there is “no reason for believing that the marketplace of ideas is free from market imperfections any more than there is to believe that the invisible hand will always lead to optimum economic decisions in the commercial market.”[4]

One of the primary defects of the marketplace of ideas theory is that the focus is often on the supplier side of the market, i.e., the creators, producers and disseminators of speech. This neglects the role the consumer, i.e., the general public, plays in the market. While both sides of the political spectrum are quick to decry media bias, these complaints neglect the fact that such bias is a product of consumer demand—the media merely provides the public with what it wants to hear.

The arguments against deplatforming are no different. While these arguments seek to root themselves in the marketplace of ideas theory and freedom of speech, the focus is solely on the supplier side and ignores the consumer’s role in that market. It is critical to remember, however, that the public plays a key role in ensuring that the marketplace functions properly.

The Modern Public Square Argument

The Modern Public Square Argument is that public discourse has migrated from the brick-and-mortar town square to digital social media platforms. Consequently, when a social media platform bans a registered user, the social media platform effectively prevents that user from speaking to the public ever again. As such, social media platforms should be treated as any other brick-and-mortar public forum under the First Amendment.

The Modern Public Square Argument has persuasive force. Prior to the internet, an individual had to receive the blessing of various gatekeepers, such as newspapers, broadcasters and publishers, to communicate with the public. Social media has diminished—if not eradicated—the role of these gatekeepers and democratized the ability of the individual to communicate to the public. This democratization allows any individual an opportunity to see whether their speech has market appeal. Additionally, social media is a major catalyst for the migration of public discourse from the brick-and-mortar world, with an inherently limited audience due to its physical limitations, to the digital space, with an infinite audience.

The Modern Public Square Argument is not novel. To the contrary, the argument was previously addressed and resolved by one of the most brick-and-mortar areas of the law: property law. In the pre-digital era, shopping malls were argued to be the modern public square. Initially, the Supreme Court held that “peaceful picketing carried on in a location open generally to the public is . . . protected by the First Amendment.”[5] In other words, if a property was open to the public—irrespective of whether it was publicly or privately owned—the First Amendment’s protections to speak in that forum would apply.

Four years later, the Court reversed course in Lloyd Corp. v. Tanner.[6] Lloyd involved several protestors of the Vietnam War who distributed handbills within a shopping mall.[7] The security guards for the shopping mall asked the protestors to move to the sidewalk outside the shopping center.[8] Although the protestors complied, they filed a lawsuit seeking injunctive relief to distribute their handbills inside the shopping center itself.[9] They argued that “the property of a large shopping center is ‘open to the public,’ serves the same purposes as a ‘business district’ of a municipality and therefore has been dedicated to certain types of public use.”[10]

The Court rejected the protestors’ argument and claimed  it “has never held that a trespasser or an uninvited guest may exercise general rights of free speech on property privately owned.”[11] The Court went on to state that private property does not “lose its private character merely because the public is generally invited to use it for designated purposes.”[12]Consequently, the “essentially private character of a store and its privately owned abutting property does not change by virtue of being large or clustered with other stores.”[13]

Lloyd makes it clear that the First Amendment does not apply to speech occurring on private property. Just as shopping malls were argued to be the modern public square in the pre-digital era, the current argument is that social media platforms serve as the modern public square in the digital age. Both a shopping mall and a social media platform, however, are private property. Much like a shopping mall is owned by the property owner, the social media platform owns the servers that store the speech and the website that disseminates it.

However, this is not to say that state constitutions cannot protect the public’s right to speak on privately owned property. In PruneYard Shopping Center v. Robins, a group of high school students solicited support in a shopping mall for their opposition to a United Nations resolution against Zionism.[14] The students complied with the security guard’s request to move their protest to the public sidewalk at the perimeter of the premises, but they filed suit in state court to enjoin the shopping mall from denying them access to the mall.[15] The California Supreme Court reversed the trial court’s denial of an injunction and held that California’s constitution protects “speech and petitioning, reasonably exercised, in shopping centers even when the centers are privately owned.”[16]

The Supreme Court upheld the California Supreme Court’s decision. The Court reconciled its holding in Lloyd with PruneYard by holding that Lloyd did not “limit the authority of the State to exercise its police power or its sovereign right to adopt in its own Constitution individual liberties more expansive than those conferred by the Federal Constitution.”[17] Consequently, Lloyd did not govern because its holding was limited to interpreting the First Amendment and not a state constitution.[18]

The Court’s decision in PruneYard is important to addressing another issue: does protecting and enforcing the right of individuals to speak on private property amount to the redistribution of property rights—even a taking under the Fifth Amendment? As the Court recognized, “one of the essential sticks in the bundle of property rights is the right to exclude others,”[19] and “there has literally been a ‘taking’ of [private property] to the extent that the California Supreme Court has interpreted the State Constitution to entitle its citizens to exercise free expression and petition rights on shopping center property.”[20] Yet, at the same time, “not every destruction or injury to property by governmental action has been held to be a ‘taking’ in the constitutional sense.”[21] The Court found that, while technically a taking, there was “nothing to suggest that preventing [the shopping mall owners] from prohibiting this sort of activity will unreasonably impair the value or use of their property as a shopping center.”[22]

Therefore, in light of PruneYard, proponents of the Modern Public Square Argument essentially ask the government to redistribute the control, if not ownership, of social media platforms to banned users.  It is unlikely, however, that such redistribution of property rights amounts to a taking under the Fifth Amendment, because social media websites are open to the public, and enforcing a right of access would not be inconsistent with their overall purpose. After all, social media platforms are open to the public for the express purpose of disseminating the users’ speech. Indeed, if a website is not open to the public, any attempt by the state to create or enforce a right of access to speak on that website would amount to a taking under the Fifth Amendment.[23] Further, section 230 of the Communications Decency Act effectively preempts a state’s ability to rely on PruneYard to grant their citizens a right of access to speak on social media platforms or to prevent deplatforming.

In sum, the Modern Public Square Argument fails because the First Amendment does not apply to speech that takes place on private property[DD29] . While the Modern Public Square Argument attempts to facilitate the marketplace of ideas theory by ensuring public access to social media platforms, it does so by asking the state to redistribute private property rights from the social media platform to the banned user. Stripped bare, the Modern Public Square Argument does the exact opposite of its intended purpose: it advocates governmental interference in the marketplace via redistribution of property rights from owner to trespasser.

The Big Tech Monopoly Argument

The Big Tech Monopoly Argument is that social media platforms exercise monopolistic control of users’ ability to communicate to the public. Given the limited number of widely used social media platforms, there is a serious danger that such platforms have a disproportionate influence on shaping and even controlling the public debate. If a social media platform does not like a particular message or how it’s delivered, the platform has near unfettered power to silence those subjects and viewpoints.

This argument relates to the Modern Public Square Argument because implicit in both is the recognition that social media platforms serve as the primary means for individuals to communicate their speech to the public. The Big Tech Monopoly Argument, however, identifies a defect in the marketplace of ideas that the Modern Public Square Argument does not address: that the channels of communication are in the hands of a few who hold near absolute discretion over what subject matter and viewpoints shall be platformed and which ones will not. The concern is that such disproportionate power can pervert and stifle the marketplace. By characterizing social media platforms as the modern version of a gatekeeper—like newspapers, broadcasters and publishers in the past—the Big Tech Monopoly Argument attempts to address the private property issue by claiming it is in the public interest for the government to regulate social media platforms’ monopolistic power over public discourse.

Like the Modern Public Square Argument, the Big Tech Monopoly Argument is not novel and has already been addressed in the brick-and-mortar context. Indeed, this was the principal argument in Miami Herald Publishing Co. In that case, the Supreme Court stated that the “First Amendment interest of the public in being informed is said to be in peril because the ‘marketplace of ideas’ is today a monopoly controlled by the owners of the market.”[24]

Miami Herald involved Florida’s right of reply statute.[25] In essence, this statute gave political candidates a right to respond to a newspaper’s critique free of cost.[26] The newspaper was obligated to print the response in the same manner as the critique was provided. For example, if the critique occurred on the front page and in a certain font size, the response had to also be on the front page and in the same font size.[27] Failure to comply with the statute constituted a first-degree misdemeanor.[28]

In Miami Herald, the plaintiff was a candidate for the Florida House of Representatives.[29] The defendant was a Miami-based newspaper that published several articles critical of plaintiff’s candidacy.[30] Invoking Florida’s right of reply statute, the plaintiff sought injunctive relief to force the newspaper to print his replies verbatim and actual and punitive damages.[31]

The Court held that the statute violated the First Amendment. For the Court, the far greater concern was that the statute was an unconstitutional content-based regulation.[32] The Court noted its consistent “attitude” was “strongly adverse to any attempt to extend a right of access to newspapers”[33] because it constitutes “compulsion exerted by government on a newspaper to print that which it would not otherwise print.”[34] Further, the threat of legal sanctions may lead editors to conclude that “the safe course is to avoid controversy,”[35] which would result in “political and electoral coverage [being] blunted or reduced.”[36] Consequently, the Florida statute was an unconstitutional “intrusion into the function of editors”[37] because the “choice of material to go into a newspaper, and . . . and treatment of public issues and public officials – whether fair or unfair – constitute the exercise of editorial control and judgment.”[38]

Critical to this discussion, the Court stated that the remedy for this so-called “monopoly” was the marketplace of ideas itself:

“The power of a privately owned newspaper to advance its own political, social, and economic views is bounded by only two factors: first, the acceptance of a sufficient number of readers—and hence advertisers—to assure financial success; and, second, the journalistic integrity of its editors and publishers.”[39]

Miami Herald makes clear that the answer to the Big Tech Monopoly Argument is the marketplace of ideas and not state action. If the public has an issue with the product provided by social media platforms, the public does not need to consume that product. Indeed, this is exactly what happened with platforms like Parler and Truth Social. Both platforms were established in response to the perception that social media platforms—particularly Twitter—were targeting conservative voices for deplatforming.[40] But Parler and Truth Social have failed to achieve a large active user base because non-users perceive these sites as centers of misinformation, bias and extremism.[41] Relatedly, observers theorize that the appeal of social media for many conservative users is the opportunity to interact with liberal users—a desire that Parler and Truth Social can’t fulfill as effectively as Twitter.[42]

In sum, the Big Tech Monopoly Argument against deplatforming is flawed because it solely focuses on the supply side of the marketplace of ideas and ignores the role consumers play in correcting that market defect. Such an argument is paternalistic because it characterizes the public as ignorant and helpless. It asks the public to abdicate its tremendous power in the marketplace of ideas to say, “We’re not buying it.”

The Discriminatory Application Argument

The Discriminatory Application Argument is that social media platforms disproportionately target certain speakers for deplatforming. This argument is related to the Big Tech Monopoly Argument because its foundation is that social media platforms use their monopolistic control to stifle the marketplace of ideas by targeting certain ideas or speakers. Those who advance the Discriminatory Application Argument claim the vast majority of employees of social media platforms are left-leaning and use their position to silence certain speakers and topics. These critics often claim right-wing users will be banned for certain types of incendiary speech while left-leaning speakers, who engage in nearly identical rhetoric, are treated with impunity.

Again, like the previous arguments against deplatforming, the Discriminatory Application Argument has persuasive force. Broadly speaking, Americans across the political spectrum believe that social media sites censor political viewpoints, with over two-thirds of Republican or Republican-leaning adults believing that platforms favor liberals over conservatives.[43] On one hand, a leading study used data to suggest that this perception may not be correct.[44] On the other hand, Wikipedia’s non-exhaustive lists of “Twitter Suspensions” and “YouTube Suspensions” show that a greater number of notable conservatives have been deplatformed than notable liberals.[45]

Further complicating this matter is the wide variety of reasons that social media sites may have for deplatforming a user. Doxing, targeted harassment and advancing demonstrably false statements, for example, might be more serious than making more generalized inflammatory statements—but all can result in a ban.[46] In any case, it should be extremely disconcerting—even alarming—if individuals of a certain ideology are disproportionately subjected to deplatforming compared to individuals of the opposite ideology.

At its core, the Discriminatory Application Argument is a breach of contract argument because it is premised on the social media platforms violating their own terms of service by applying them in an inconsistent and discriminatory manner. More specifically, the Discriminatory Application Argument claims that social media platforms either: (1) breached the implied covenant of good faith and fair dealing by deplatforming the user in bad faith, or (2) breached their terms of service by banning the user for conduct that did not actually violate the social media platform’s terms of service.

The critical issue of the Discriminatory Application Argument is whether section 230 of the Communications Decency Act, or CDA, forecloses such breach of contract claims.[47] Section 230 contains several key components. First and foremost, section 230 immunizes digital platforms from liability arising from the speech of its users.[48] Second, section 230 contains a good Samaritan provision that provides social media platforms immunity for “any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing or otherwise objectionable, whether or not such material is constitutionally protected.”[49] While the Supreme Court has yet to directly address this point,[50] the federal appeals courts often interpret the good Samaritan provision as social media platforms performing “traditional editorial functions.”[51]

At first blush, the notion that social media platforms can serve “traditional editorial functions” seems counterintuitive. Unlike the newspaper in Miami Herald, the product of social media platforms is the speech of its users and not the social media platform itself. This perspective, however, neglects that third-party speech occurs on platforms not owned by the speaker. Therefore, exactly like the newspaper in Miami Herald, state action that interferes with a social media platform’s ability to delete or editorialize third-party content would constitute compelled speech. In other words, the social media platform would effectively be forced to platform speech it found in good faith to be obscene, lewd, lascivious, filthy, excessively violent, harassing or otherwise objectionable.

The third key component of section 230 is its preemption clause. While section 230 authorizes states to enforce “any State law that is consistent with this section,”[52] it also states that “no cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.”[53] This means that a state’s attempt to enforce a right of access to social media platforms in a manner consistent with PruneYard would be preempted by section 230 because it would be completely inconsistent with its good Samaritan provision.”

As applied, courts “routinely reject[] a wide variety of civil claims . . . that seek to hold interactive computer services liable for removing or blocking content or suspending or deleting accounts (or failing to do so) on the grounds they are barred by the CDA.”[54] [SS49] Recently, however, two California decisions reached opposite conclusions on the applicability of section 230 to breach of contract claims by a banned user against a social media platform for violating its own terms of service. Curiously, both of these decisions came to the same result: the plaintiff’s breach of contract claim failed as a matter of law, albeit for different reasons.

In Murphy v. Twitter, a plaintiff was banned from Twitter after posting “several messages critical of transgender women on Twitter.”[55] Initially, Twitter took down the plaintiff’s posts and “informed her she had violated its hateful conduct rules.”[56] Twitter permanently suspended her account after the plaintiff continued posting similar statements.[57] She sued Twitter for breach of contract, promissory estoppel and violation of Business and Professions Code section 17200.[58]

The California Court of Appeals held that section 230 immunity barred the plaintiff’s claims.[59] The court recognized that plaintiff’s “allegations that Twitter ‘enforced its Hateful Conduct Policy in a discriminatory and targeted manner’” was not a “breach of a specific promise” but Twitter’s interpretation and enforcement of its own general policies.[60] As such, the court held that enforcing “a general monitoring policy does not suffice for contract liability.”[61] The court further held that “when plaintiffs allege a platform has wrongfully ceased publishing their posts or blocked content, that content constitutes ‘information provided by another’”[62] within the meaning of section 230. Consequently, Section 230 barred the plaintiff’s claims because they arose from Twitter’s enforcement of its own policy rather than from a contractual obligation.[63]

King v. Facebook, Inc. came to a different conclusion regarding the applicability of section 230 immunity but still found the plaintiff failed to state a claim for breach of contract.[64] In King, the district court found that the plaintiff had “a viable theory for breach of contract and/or the implied covenant based on Facebook’s disabling of her account.”[65] On her account, plaintiff posted both nonpolitical and political information that “reflected a conservative point of view.”[66] Facebook’s terms of service granted Facebook the right to temporarily or permanently suspend a user’s account for “seriou[s] or repeate[d]” violations of the terms of service and community guidelines.[67] The plaintiff alleged no such violation occurred.[68] Facebook responded by stating that its terms of service granted it “unfettered discretion as to whether to disable the account.”[69]

For purposes of Facebook’s motion to dismiss, the district court found it was unable to determine whether Facebook’s terms of service gave it unfettered discretion to terminate the plaintiff’s account.[70] Facebook’s terms of service “did not include language providing that Facebook had ‘sole discretion’ to act.”[71] Moreover, by tethering suspension to repeated or serious violations of the community guidelines, Facebook created a contractual obligation that the decision to disable the plaintiff’s account would “be guided by the articulated factors” and not be “entirely arbitrary.”[72] Consequently, the court held that “there is a strong argument that the implied covenant of good faith and fair dealing imposes some limitation on the exercise of discretion so as to not entirely eviscerate users’ rights.”[73] Further, while there was no express contractual provision requiring Facebook to explain its termination of the account,[74] the implied covenant of good faith and fair dealing made Facebook “obligated to provide at least some information in addition to the fact that the account has been suspended or terminated—i.e., enough information about why the account was suspended or terminated such that an ‘appeal’ could properly be made.”[75]

The plaintiff’s breach of contract/implied covenant claim fell apart, however, when it came to remedies. The gravamen of the plaintiff’s injuries were primarily “emotional distress or injury to reputation,”[76] which were “not compensable for a breach of contract.”[77] Nor was the loss of the content on plaintiff’s account sufficient because: (1) “Facebook was not obligated to retain her property for her”[78] and (2) under California law, plaintiff had to show the “property’s unique economic value, not its sentimental or emotional value” (emphasis added).[79]

Murphy and King, while appearing to reach opposite conclusions regarding the applicability of section 230, can be easily reconciled. In Murphy, Twitter’s terms of service explicitly granted Twitter absolute discretion to terminate the plaintiff’s account. In contrast, King involved terms of service that did not contain language granting Facebook absolute discretion to terminate the plaintiff’s account; rather, the terms of service explicitly stated that Facebook would follow certain substantive and procedural guidelines, which Facebook failed to do. Ultimately, both cases can be read to incentivize social media platforms to reserve themselves absolute discretion regarding whether to terminate a user’s account and to disincentivize the social media platform from providing substantive and procedural safeguards regarding deplatforming.

In sum, the Discriminatory Application Argument faces several obstacles. First, it is in direct conflict with section 230. Second, it seeks to interfere with the editorial discretion of social media platforms and compel them to platform speech they would otherwise not platform. Third, a breach of contract claim based on deplatforming is not viable, whether for lack of an enforceable promise or of remedies.

Deplatforming Should be Resolved by the Marketplace of Ideas and Not State Action

It would be very easy and tempting to confuse the legal protections afforded to social media platforms regarding deplatforming with society’s approval of the practice. This would be a mistake. The law’s aversion to involving itself in deplatforming is intended to preserve society’s right to debate how those legal protections should be exercised.

The quintessential example of how the marketplace of ideas attempts to address deplatforming is the debate around section 230 itself. Section 230 is the object of intense criticism from both ends of the political spectrum. Conservatives employ the Discriminatory Application Argument to claim the good Samaritan clause of section 230 provides social media platforms absolute discretion to target conservative speakers. [80] Liberals criticize section 230 because they believe it incentivizes social media platforms to allow hate speech and misinformation on the platform.[81]

Much of the criticism of section 230, however, is short-sighted because repealing or amending section 230 would have disastrous consequences for speech on the internet. Indeed, section 230 is often credited as the law that fueled the rise of the internet in the first place. If section 230 were to be repealed, social media platforms and other websites that provide forums for users to speak may elect to shut down due to the consistent threat of crushing liability from countless lawsuits. In essence, while critics of section 230 claim the statute interferes with the marketplace of ideas, the opposite is true: without section 230, the internet as we know it would cease to exist.

An amendment to section 230 would be equally problematic. While section 230 does carve out certain forms of content from immunity, e.g., intellectual property infringement, obscenity and various sexual crimes, further carveouts may be problematic under the First Amendment. [82] For example, if section 230 were amended to ensure certain subject matter cannot be deplatformed, the law would create content-based restrictions that would be at odds with the First Amendment. If section 230 were amended to ensure certain speakers could not be deplatformed, it would present a viewpoint-based restriction that would be at odds with the First Amendment.

A tempting solution could be to enshrine certain procedural safeguards against deplatforming, such as requiring social media platforms to clearly state the reason for the suspension and provide an appeals process through a third party. Such a solution, however, would likely be prohibitively expensive and extremely difficult to implement. For example, new social media platforms may be deterred from entering the market because the cost of implementing the procedural safeguards is too high. Even if the procedural safeguards were limited to social media platforms of a certain size, the process is likely to be unwieldly, protracted and costly. This would incentivize social media platforms to not deplatform anyone, including users promulgating speech that is clearly unlawful.

Rather, society should take a closer look at the reasons why each individual is deplatformed. Upon scrutiny, individuals are usually deplatformed not because of their generalized political position but because they engaged in a particular act or series of acts that violated the platform’s terms of service. A claim that someone was targeted for their political opinions is, generally, intended to distract from these specific acts and paint the issue as something that it is not.

Society should be vigilant in ensuring that social media platforms responsibly exercise the tremendous power granted to them. True advocates of the First Amendment and freedom of speech must be particularly vigilant when the speech at issue involves ideas to which they are opposed. When confronted with such speech, the temptation to abandon fidelity to the First Amendment is at its greatest. Rather, true advocates of the First Amendment realize that defending the First Amendment rights of such speech and speakers is to defend their own right to free speech as well. A quintessential example of true fidelity to the First Amendment was when two Jewish attorneys from the ACLU defended the right of Nazis to protest in a community with a large Jewish and Holocaust survivor population.[83] As true advocates of the First Amendment and freedom of speech recognize, defending objectionable speech is not about providing social approval of the speech; rather, defending objectionable speech defends our own ability to respond to such speech.

The far greater danger present is an ideologically promiscuous attitude towards the First Amendment and freedom of speech, i.e., supporting the speech when we agree with its message and seeking to silence it through state action when we are opposed to it. This promiscuous attitude is the true threat to the First Amendment and freedom of speech because it creates a precedent that favored and disfavored speech under the First Amendment will depend upon who is in power.

Rather, the true remedy to address objectionable speech is through the marketplace of ideas, i.e., more speech. It is incumbent upon the consumers in the marketplace of ideas to safeguard their critical role in the marketplace by directly addressing the objectionable speech to remove market demand, as opposed to asking the government to silence it. Only through vigorous public debate, being more discerning about the speech we consume and demanding the suppliers of speech––whether large entities, like social media platforms or mainstream media, or individual speakers––provide a better product, can we address the defects in the marketplace. Indeed, this is exactly what Justice Holmes intended: that we the people shall determine “the power of the thought to get itself accepted in the competition of the market.”[84]

About the author

Rom Bar-Nissim is a media attorney at the Law Offices of Lincoln Bandlow where his practice focuses on intellectual property, the First Amendment and Anti-SLAPP law. He represents clients who create and disseminate speech in nearly every medium. He has litigated copyright and First Amendment cases throughout the United States, including the California Supreme Court and the Ninth Circuit. He drafts media agreements and provides counseling to speakers on various intellectual property and speech related issues. He is the co-executive editor of California Internet Law & Practice by CEB/Lexis Nexis and authors the chapters on copyright and the First Amendment. He has also written chapters and articles for the American Bar Association, the Media Law Resource Center, California Lawyers Association and CEB/Lexis Nexis. He has guest lectured at the University of Southern California Annenberg School of Journalism, University of California Irvine School of Law, The Copyright Society, American Bar Association Forum on Communications Law, CEB/Lexis Nexis, California Lawyers Association and the Public Relations Society of America.

[1] Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J. dissenting).

[2] Red Lion Broad. Co. v. Fed. Commc’ns. Comm., 395 U.S. 367 (1969).

[3] Id, at 390.

[4] Cent. Hudson Gas & Elec. Corp. v. Pub. Serv. Comm’n. of N.Y., 447 U.S. 557, 592 (1980) (Rehnquist, J. dissenting).

[5] Amalgamated Food Emps. Union Loc. 590 v. Logan Valley Plaza, Inc., 391 U.S. 308, 313 (1968).

[6] Lloyd Corp., Ltd. v. Tanner, 407 U.S. 551 (1972).

[7] Id, at 556.

[8] Id, at 556.

[9] Id.

[10] Id, at 568-69.

[11] Id, at 568.

[12] Id, at 569.

[13] Id.

[14] PruneYard Shopping Ctr. v. Robins, 447 U.S. 74, 77 (1980).

[15] Id, at 77.

[16] Id, at 78.

[17] Id, at 81.

[18] Id.

[19] Id, at 82.

[20] Id. (alteration in original).

[21] Id.

[22] Id, at 83 (alteration in original).

[23] Ceder Point Nursery v. Hassid, 141 S. Ct. 2063, 2076-77 (2021).

[24] Mia. Herald Publ’g Co. v. Tornillo, 418 U.S. 241, 251 (1974).

[25] Id, at 243.

[26] Id, at 244.

[27] Id.

[28] Id.

[29] Id, at 243.

[30] Id.

[31] Id, at 244.

[32] Id, at 254-56.

[33] Id, at 255.

[34] Id, at 256.

[35] Id.

[36] Id (alteration in original).

[37] Id, at 258.

[38] Id.

[39] Id, at 255 (quoting Colum. Broad. Sys., Inc. v. Democratic Nat’l. Comm., 412 U.S. 94, 117 (1973)).

[40] Galen Stocking et al., The Role of Alternative Social Media in the News and Information Environment, Pew Research Center (Oct. 6, 2022), https://www.pewresearch.org/journalism/2022/10/06/the-role-of-alternative-social-media-in-the-news-and-information-environment/.

[41] Id.

[42] John Herrman, Kanye West and the Siren Song of ‘Alt Social’, N.Y. Mag. (Oct. 18, 2022), https://nymag.com/intelligencer/2022/10/kanye-west-parler-and-the-siren-song-of-alt-social.html.

[43] Emily A. Vogels et al., Most Americans Think Social Media Sites Censor Political Viewpoints, Pew Research Center(Aug. 19, 2020), https://www.pewresearch.org/internet/2020/08/19/most-americans-think-social-media-sites-censor-political-viewpoints/.

[44] Paul M. Barrett & J. Grant Sims, N.Y.U. Stern Ctr. for Bus. and Hum. Rts., False Accusation: The Unfounded Claim that Social Media Companies Censor Conservatives (2021).

[45] Twitter Suspensions, Wikipedia: The Free Encyclopedia, https://en.wikipedia.org/wiki/Twitter_suspensions (last visited Mar. 23, 2022); YouTube Suspensions, Wikipedia: The Free Encyclopedia, https://en.wikipedia.org/wiki/YouTube_suspensions (last visited Mar. 26, 2023).

[46] Lee Rainie et al., The Future of Free Speech, Trolls, Anonymity and Fake News Online, Pew Research Center (Mar. 29, 2017), https://www.pewresearch.org/internet/2017/03/29/the-future-of-free-speech-trolls-anonymity-and-fake-news-online/.

[47] 47 U.S.C. § 230.

[48] See 47 U.S.C. § 230, supra note 47, § 230(c)(1) (“No provider or user of an interactive computer service shall be treated as the publisher or speak of any information provided by another information content provider.”).

[49] 47 U.S.C. § 230, supra note 47, § 230(c)(2)(A).

[50] The Supreme Court granted certiorari for Gonzalez v. Google, LLC (Case No. 21:1333). Gonzalez involved claims by the family of a United States victim of the November 2015 terror attacks in Paris, France against various search engines and social media platforms. The question is whether the algorithms by which search engines and social media platforms present information is their speech or the speech of third-parties. During oral argument, the justices appeared hostile to the family’s argument. As of publication, the Supreme Court has not rendered its decision.

[51] See, e.g., Fed. Trade Comm’n v. LeadClick Media, LLC, 838 F.3d 158, 174-75 (2d Cir. 2016); Zeran v. Am. Online, Inc., 129 F.3d 327, 330 (4th Cir. 1997); Jones v. Dirty World Ent. Recordings, LLC, 755 F.3d 398, 407 (6th Cir. 2014); Green v. Am. Online (AOL), 318 F.3d 465, 471 (3d Cir. 2003); Ben Ezra, Weinstein & Co. v. Am. Online, Inc., 206 F.3d 980, 986 (10th Cir. 2000); Universal Commc’ns Sys., Inc. v. Lycos, Inc., 478 F.3d 413, 422 (1st Cir. 2007); Huon v.Denton, 841 F.3d 733, 743 (7th Cir. 2016); Johnson v. Arden, 614 F.3d 785, 792 (8th Cir. 2010); Klayman v. Zuckerberg, 753 F.3d 1354, 1359 (D.C. Cir. 2014); Dowbenko v. Google, Inc., 582 F. App’x 801, 805 (11th Cir. 2014); Barnes v.Yahoo!, Inc., 570 F.3d 1096, 1102 (9th Cir. 2009).

[52] 47 U.S.C. § 230, supra note 47, § 230(e)(3).

[53] 47 U.S.C. § 230, supra note 47, § 230(e)(3).

[54] Murphy v. Twitter, Inc., 60 Cal. App. 5th 12, 27 (2021) (citing, inter alia, Domen v. Vimeo, Inc., 433 F. Supp. 3d 592, 602-03 (S.D.N.Y. 2020) (deleting content from the website); Ebeid v. Facebook, Inc., No. 18-cv-07030-PJH, 2019 WL 2059662, at *3-5 (N.D. Cal., May 9, 2019) (Facebook removing posts and restricting account use); Mezey v. Twitter, Inc., No. 1-:18-cv-21069-KMM, 2018 WL 5306769, at *1-2 (S.D. Fla., July 19, 2018) (Twitter suspending an account); Riggs v. MySpace, Inc., 444 F.App’x 986, 987 (9th Cir. 2011).).

[55] Murphy, 60 Cal App. 5th at 17.

[56] Id.

[57] Id.

[58] Id.

[59] Id.

[60] Id, at 29-30.

[61] Id, at 29 (quoting Barnes, supra note 51, at 1108.).

[62] Id, at 31; accord, Sikhs for Just. “SFJ,” Inc. v. Facebook, Inc., 144 F. Supp. 3d 1088, 1090, 1093-94 (N.D. Cal. 2015); Fed. Agency of News LLC v. Facebook, Inc., 432 F. Supp. 3d 1107, 1117-18 (N.D. Cal. 2020).

[63] Further, the court found that – even if Section 230 immunity did not apply – the plaintiff’s breach of contract claim still failed as a matter of law because “Twitter’s terms of service expressly state that they reserve the right to ‘suspend or terminate [users’] accounts … for any or no reason.’” Id, at 35. Relying on similar decisions, the court found that the “clear terms of Twitter’s user agreement preclude a claim for breach of contract” based on Twitter purportedly violating its own policies. Id. (citing Cox v. Twitter, Inc., 2019 WL 2513963, at *4 (D.S.C. Feb. 8, 2019); Ebeid, supra note 54, at *8). 

[64] King v. Facebook, Inc., 572 F. Supp. 3d 776 (N.D. Cal. 2021).

[65] Id, at 788.

[66] Id, at 780-81 (alteration in original).

[67] Id, at 788.

[68] Id.

[69] Id.

[70] Id.

[71] Id.

[72] Id.

[73] Id.

[74] Id.

[75] Id.

[76] Id, at 790.

[77] Id.

[78] Id.

[79] Id. (bold emphasis added).

[80] Marguerite Reardon, Democrats and Republicans agree that Section 230 is flawed, CNET (June 21, 2020), https://www.cnet.com/news/politics/democrats-and-republicans-agree-that-section-230-is-flawed/.

[81] Shannon Bond, Democrats Want To Hold Social Media Companies Responsible for Health Misinformation, NPR (Jul. 22, 2021), https://www.npr.org/2021/07/22/1019346177/democrats-want-to-hold-social-media-companies-responsible-for-health-misinformat.

[82] See 47 U.S.C. § 230, supra note 47, § 230(e).

[83] See Nat’l Socialist Party v. Skokie, 432 U.S. 43 (1977).

[84] Abrams, 250 U.S. at 630 (Holmes, J. dissenting).