It Sucks – but it’s Not a 1st Amendment Violation

Qualifications for citizenship in Shadowbanistan are a bit murky. Some of us immigrated here by choice, lured in by promises of limited government oversight, a paucity of regulations and the absolute right to say anything we want, so long as nobody else hears us. Others have been sent here against their will and without their knowledge.

In a sense, residing in Shawhobanistan is very liberating – and yet, somehow, in another sense, it’s very oppressive at the same time. Whatever it is, it isn’t a First Amendment violation, even if it might feel like one.

There’s a lot of talk these days about “free speech” and whether various social media platforms truly allow it. The answer is no, they don’t allow truly free speech – but they also aren’t required to allow it, because they have First Amendment rights of their own.

Quite often, you’ll hear people claim that a social media company ‘deplatforming’ people is a violation of the First Amendment. They’re completely wrong, of course, but that doesn’t stop them from saying it’s a First Amendment violation, or from filing futile lawsuits in which they try to persuade the court that it is. Nor does it stop them from concocting dumber-than-Marjorie-Taylor-Greene state laws that would prohibit social media companies from deplatforming or shadow-banning certain speakers. (Laws that are swiftly enjoined by the court, thankfully.)

Lawsuits against social media companies alleging that those companies are violating the First Amendment by deplatforming, shadow banning or suspending members are very likely doomed to fail for a simple reason, one clearly stated by Sarah Ludington, a professor and director of the First Amendment Clinic at Duke Law School in a comment to Recode’s Shirin Ghaffary last summer: “From a constitutional perspective, the suit has little merit for the simple reason that Facebook and Twitter are corporations — privately owned, privately managed, and barely regulated. It will be difficult to establish that banning Trump was ‘state action.’”

In this context, “difficult” probably is a bit of an understatement. If you can find one expert in the First Amendment (and I mean an actual expert, ideally someone who has litigated multiple cases involving First Amendment claims, no just some dipshit with a lot of Twitter followers who spouts opinions that are wrong, but with which you agree) I’d be pretty damn impressed by your persistence in digging up that outlier.

All this should be clear to American social media users by now – but we American social media users are a stubbornly ignorant lot, one that prefers to “do its own research.” So, instead of learning anything about the laws, regulations, policies and precedent that truly govern how social media companies operate, we’ll continue to complain, insist that up is down, talk nonsense about “platforms vs. publishers” in the context of Section 230 find ways to argue that 2 + 2 = federal lawsuit and generally make goddam fools of ourselves in public view.

None of this is to say deplatforming and shadow banning people is a good thing, or that I’m for it. They aren’t and I’m not.

I firmly believe social media platforms should allow their users to repeatedly reveal themselves as jackasses, racists, ignorant bozos, corporate shills, neo-Nazis, conspiracy theorists, former hosts of the Oscars, pop musicians, misinformation peddlers, Democrats, Republicans, members of the Trump family or any other irksome demographic of which they may be part.

The thing is, I also firmly believe the platforms have every right – and certainly every legal right – to disagree with me on the above. My recourse for being deplatformed or deported to Shadowbanistan is to use a different platform. Or – and here’s a wild idea that should appeal to all the “free market” types – launch a website or blog of my own, on which I can publish what I choose and where the only relevant terms of use will be mine and those of my hosting provider.

French bulldog image by Anna Shvets from Pexels