Adios Mr. President, You Are Banned from Twitter!

Written by Todd McMurtry

January 29, 2021

So how did this happen? Twitter, Facebook, Instagram, and others unilaterally decided to kick the president of the United States off their platforms and terminate his social media relationship with as many as 80 million Americans. It seems to most Americans that this is a violation of former Pres. Trump’s right to freedom of speech as protected by the First Amendment of the United States Constitution. Unfortunately, our Constitution offers no such protection. Generally, your speech in only protected in public spaces, not private property.
As you have likely heard, many people refer to social media companies as private corporations that can do whatever they want on their platforms. This is true. It is also true that in 1996 Congress passed the law called the Communications Decency Act or the CDA. It says: “No provider or user of an interactive computer service shall be held liable on account of — (A) 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.” This act gives companies like Twitter the absolute right to police any content that any person, including the president of the United States, posts on their platform. The courts in the United States have broadly interpreted the law to provide maximum discretion to these companies to decide what their users can post on their platform.

When you sign up for Twitter, you must press a button agreeing to the terms of service (“TOS”). Social media platforms constantly update their TOS to decide exactly what you or former Pres. Trump can or cannot say on social media. First, you can talk about election interference’s, then they decide that you cannot. First you can complain about the origins of the Covid-19 virus, next if you mention it on social media, they shut you down. Examples like this go on and on. Will this end? It likely will not until Congress or the courts change the law. Right now, there are several lawsuits challenging how social media companies use their TOS to interpret their authority under the CDA. We can hope that a more conservative court would temper the way the social media companies use the law. Time will tell.

In the interim, I think we can rest assured that none of the currently existing major social media companies will allow former Pres. Trump to reengage on their social media platforms. The beautiful thing about this is that eventually another platform, be it Parler, Gab or another, will be able to open and provide social media interaction that allows former presidents and other prominent people to post their views on politics and current events without censorship. It may take a few months or a year to get there, but eventually the fact that large social media companies have censored a former U.S. president will result in greater competition. We have already seen companies such as Twitter and Facebook lose value on the stock market. Once a competing company establishes a large presence, there will be real competition. We then can regain much of our right to hear what our leaders have to say.

Todd McMurtry is a nationally known attorney. His practice focuses on defamation, social media law, professional malpractice, and business disputes. You can follow him on Twitter @ToddMcMurtry.

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