Twitter, Facebook, Instagram, TikTok — all of these are social media platforms that are used to gather followers who are interested in certain people or subjects. They are used to reach people who buy certain products or vote a certain way. And that means that they are deeply tied to our economy overall. And that means that social media platforms have immense power when it comes to deciding who has “purchasing” power, whether they be individuals or companies.
The question recently arose after Donald Trump was booted off Twitter and Facebook permanently: is censorship of users legal or illegal?
The question is generally framed from one of two perspectives. First, is this type of censorship by a private business enterprise a violation of someone’s First Amendment rights? The answer is “probably not.” But it’s a murky area legally, which means we’re likely to see many courtroom battles in the coming months. The reason the answer is probably not is simple: the First Amendment protects the right to free speech not in general, but when considering potential government restrictions. What we say or do still has consequences dependent on what anyone else thinks.
The second perspective comes from a discrimination standpoint, i.e. does this private business have the right to potentially discriminate against someone based on the person’s views or soundbites? And the answer is almost undeniably “yes.” This is the case because the Supreme Court has already ruled numerous times that private businesses can neglect to serve groups of people — take selling wedding cakes to same-sex couples, for example. The Supreme Court says if you don’t want to, you don’t have to. That’s the result of our so-called Religious Freedom laws, bogus or not.
But that leads to a somewhat tricky confluence of two important laws: one regarding free speech, the other regarding discrimination. What happens when we consider them both together is not without precedent, but considering this case involves a former president — it’s hard to say how things will turn out.