Please read this. The First Amendment restricts governmental action only.
We are contacted frequently by people complaining that Facebook, Twitter, Intagram, or other private corporate social-media companies supposedly violated their "free-speech" or "First Amendment" rights. This might be by social-media companies blocking them, or applying seemingly selective and arbitrary standards about posts. These potential clients want us to "sue" these social-media companies for them.
The answer is "no." The answer is always "no." Not if you expect to get anything out of it, anyway.
Facebook, Twitter, and Instagram are private companies. They are not "the government." They can set their own rules on speech, and even enforce them whimsically, and there's nothing you can do about it. You have no constitutional rights against private social-media companies. None. A court that tried to do something about it would be violating those companies' right to free speech. And conservative judges have ruled—and conservative politicians have insisted—that private corporations have a right to free speech.
Others contact us complaining that some private store violated their "free-speech" rights by requiring face masks during the pandemic, or barring political speech of one kind or another, or barring political speech generally.
There's nothing we can do about that legally, even if a client paid hourly rates out of pocket for the project. We couldn't even file a complaint on that issue in good faith, the issue is so crystal-clear in the law. For some reason, there are broad misconceptions in the public about this—an assumption that we are free to say anything anywhere, anytime, in any forum, even privately run ones.
That's just not true.
If potential clients can show us clear evidence that private, non-governmental actors are acting in concert or conspiracy with government actors to restrict speech—a very high evidentiary bar, we might be able to bring a civil-rights-conspiracy claim. But that would be a rare exception to the rule above. The evidence would have to be strong.
So we do not sue Facebook or Twitter over their inconsistently enforced or unfair censorship policies, "bullying," their bias, or whatever. No matter how you try to dress up your beef with those companies over their behavior with your posts, you likely have no remedies, absent congressional action to regulate the industry as modern-day utilities. (And even that might be constitutionally suspect.)
Sometimes people contact us and tell us we are "wrong" about this, and that we should "go back to law school."
Well, alrighty, then.
We understand that being mistreated by social-media companies is upsetting. But we don't make up bedrock, well-established principles of constitutional law. If people are so confident that they have free-speech cases, they can bring those cases themselves. Because they won't find competent civil-rights or constitutional lawyers willing to do so.
By the way, Facebook, Twitter, and other social-media companies have terms of service that mandate you go to arbitration, in their states, with arbitrators they've picked. So good luck with that too.
Please do not contact us about this. Please just share this blogpost and help educate your fellow Americans about how the First Amendment applies to government action only. Perhaps together we can help cure this civics-lesson deficiency with the public. Thank you.
