Twitter Shutdown: A Violation of Free Speech?

The question has been raised whether Donald Trump’s rights have been violated by the recent decision of Twitter to impose a permanent ban on his account.  This follows similar action by Facebook and is happening at the same time as other technology companies are refusing to do business with the conservative website Parler.

The First Amendment of the U.S. Constitution protects against prior restraint of speech by the government.    

“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.” USCS Const. Amend. 1

The right of free speech secured by the Constitution does not prohibit a private actor, such as Twitter, from controlling the speech on its website. It only protects against the government restricting speech.  However, even with government action the right has its limits.  The Supreme Court has upheld restrictions on free speech when it felt that those restrictions were justified by an argument that the government was threatened.

In Dennis, a case where a group of communists were convicted of violating the law by passing out printed materials that promoted communism, the U.S. Supreme Court said that the First Amendment was not violated by criminalization of political speech that promoted communism and wrote:

“Overthrow of the Government by force and violence is certainly a substantial enough interest for the Government to limit speech. Indeed, this is the ultimate value of any society, for if a society cannot protect its very structure from armed internal attack, it must follow that no subordinate value can be protected.” Dennis v. United States, 341 U.S. 494, 509, 71 S. Ct. 857, 867 (1951)

            The Dennis case was one in a line of cases where criminalization of political speech by communists and socialists was upheld by the Supreme Court.  Interestingly, Dennis was later partially overruled in a case involving the free speech rights of Ku Klux Klan members in Ohio, in which it upheld the free speech rights of the Ku Klux Klan, where the Court wrote:

“the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Brandenburg v. Ohio, 395 U.S. 444, 447, 89 S. Ct. 1827, 1829 (1969)

To many Americans, myself included, it appeared the statements of Donald Trump and the actions his supporters last week were intended to overthrow the government and to encourage imminent lawless action. One viral video of a woman named Elizabeth, who was maced by Capitol police, shows her saying that she viewed the Capitol takeover as the beginning of a revolution. 

“We’re storming the Capitol, it’s a revolution..”

Additionally, there is no government restraint on speech since Twitter, Facebook, and the companies that either host or provide access to the Parlar site are not government actors, but are private entities.  Private entities are not subject to the First Amendment’s guarantee of free speech.  Only the Government can violate the First Amendment. Therefore, the tech companies have not committed a First Amendment violation by shutting down these accounts, especially given the exceptional circumstances that led to their action.