Lawsuits alleging free speech violations against social media companies are routinely dismissed. The primary grounds for these dismissals are that social media companies are not state actors and their platforms are not public forums, and therefore they are not subject to the free speech protections of the First Amendment. Consequently, those who post on social media platforms do not have the right to free speech on these social media platforms. This article will attempt to explain the relationship between social media and free speech so that we can understand why.
Who Can Restrict Free Speech - State v. Private Actors
The overarching principle of free speech under the First Amendment is that its reach is limited to protections against restrictions on speech made by the government.1 The text of the First Amendment itself only prevents Congress (i.e., U.S. Congress) from making laws that restrict the freedom of speech. This protection is extended to the states, and to local governments, through the State Action Doctrine and the Due Process Clause of the Fourteenth Amendment.2 However, under the State Action Doctrine, First Amendment restrictions traditionally do not extend to private parties, such as individuals or private companies.3 In other words, a private person or private company (such as a social media company) cannot violate your constitutional free speech rights, only the government can do so. That is, unless the private party attempting to restrict speech qualifies for one of the three exceptions to the State Action Doctrine.