No, Trump’s Twitter Ban Does Not Violate the First Amendment

I’ve been seeing many Facebook friends and acquaintances who support President Trump accuse Twitter of violating the First Amendment over the permanent suspension of Trump from their platform. Trump himself made the same claim via the @POTUS and @TeamTrump accounts (which were subsequently deleted) . This is false.

The text of the First Amendment says that “Congress shall make no law… abridging the freedom of speech…” The Constitution is a contract between the Government and the individuals that are governed, not between in private companies and individuals. The recent Supreme Court case under the Roberts Court Manhattan Community Access Corp v. Halleck (which two of Trump’s appointed Justices assented) and Nyabwa v. Facebook back this. Of course there are limits to this when it comes to the 14th Amendment but this is another matter irrelevant to the case of social media and inflammatory speech.

Let’s imagine a scenario in which it would. Even if it did apply to private companies, speech that incites insurrection and sedition is not protected free speech according to the Brandenburg v. Ohio case (1969), which was an 8–1 decision. According to the Brandenburg Test, speech is not protected free speech if it is “directed at inciting or producing imminent lawless action” and “likely to incite or produce such action”.

Going back to the reality that the First Amendment does not apply to Twitter as a private entity, Twitter has its own terms and conditions for use and service that all users agree to upon creating their account, including their “Glorification of Violence” policy. In their reasoning, Twitter stated that Trump’s recent tweets that lead up to his suspension were likely to “inspire others to replicate the violent acts that took place on January 6, 2021, and that there are multiple indicators that they are being received and understood as encouragement to do so”. Since the President did not follow the terms of using their platform that he agreed to follow upon creating his account, he violated that contract and thus they permanently suspended him.

After the events of this week and the fact that they have found imminent threats on more violence at the Capitol on their site, they are justified in permanently suspending Trump. As a company based in the United States, I would go as far as to say that it’s their patriotic duty to stop him from encouraging more seditious violence.

In order to argue for free speech, one has to understand the constitutional amendment that protects this inherent right and the subsequent legal history and context. Like the Bible and Orwell’s “1984”, it seems that a lot of people citing the Constitution have either not read it or do not understand its context.

Originally posted in the author’s personal Facebook page.

Former Volunteer Organizer for Warren 2020. Former Director of US Relations in Youth Collaboration on Foreign Affairs. Warren Democrat. Pragmatic Progressive.

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