Banning somebody from a social network is not a violation of Free Speech, it’s simply civics in action. The concept of “rights and responsibilities” has been been lost in our times. Read on for an unpacking of what is actually protected by the first amendment, and an explanation of how it has very little to do with your favorite asshole being banned from Twitter.
Freedom of Speech: Definition
Freedom of speech is derived from the first amendment. It states:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
There’s a lot packed into that single sentence amendment, so we’ll solely focus on freedom of speech.
You’re probably aware of the above XKCD comic, which I think sums up the premise succinctly. However, I want to fill in the rest by revisiting a simple lesson of American civics: rights and responsibilities.
Rights and Responsibilities: A Refresher
This is admittedly a middle-school topic, but one worth revisiting in our current socio-political climate. The idea behind rights and responsibilities is as follows: for each right you are granted you uphold a corresponding responsibility, or condition, in return for that protection.
You have the right to practice religion, but you can’t have a cult; You have the right to protest, but you can’t riot; and of course, you have the right to remain silent, but anything you say can and will be used against you in a court of law.
Similarly, the first amendment conditionally grants freedom of speech to you. The American Supreme Court codifies these conditions through rulings in landmark cases. Thus, the Constitution protects your free speech so long as:
1. You are not harming others, directly or indirectly
The case of Wisconsin vs Mitchell (1993) saw freedom of speech was conditionally revoked upon conviction of targeted and direct assault. Schenck vs US (1919) provides the indirect example, where the Supreme Court ruled that Schenck’s anti-draft pamphlets were causing unnecessary unrest. This case is where the concept of not yelling “fire” in a crowded theater came from.
2. Your remarks stay above reasonable decency threshold
Fraser vs Bethel School District (1983) You cannot make sexual or lewd comments in a speech on school grounds, though you are entitled to speak publicly in favor of a school government candidate. Similarly, Morse vs Frederick (2002) decided that you actually can’t display a banner that says “BONG HiTS 4 JESUS” during the Olympic torch relay. Sorry.
3. You are within compliance of superseding government regulations
This is a relatively new one. After the Children’s Internet Protection Act passed, the Federal Government refused funds to schools and libraries that did not install pornography filters. The American Library Association sued the government in A.L.A vs US (2001) and the Supreme Court decided in favor of the US, citing that the filters could be turned off for non-minor patrons on request.
Rights and Responsibilities of the State
The Supreme Court bears responsibility too, along with each state, municipal, and even academic government. The Supreme Court justices had to make a number of very difficult decisions while trying to defend freedom of speech from institutional censorship. A lot of the controversy centered around deeming laws or school suspensions unconstitutional, even when the speech being expressed was abhorrent, such as in the cases of R.A.V vs St Paul (1992) and Virginia vs Black (1998).
…so, what does this have to do with my favorite asshole being banned from Twitter?
It has to do with the distinction between a public entity and a private entity. It is unconstitutional for a state, or The State, to tell you that certain opinions are illegal. However, social media platforms like Twitter and Facebook are private.
When you sign up and use such a platform, you adopt a set of rights and responsibilities that intersects with constitutional and universal rights. More importantly, you take on a vast new set of responsibilities.
In the case of Twitter, these responsibilities are very clearly stated in their rules. More or less, you’re gaining the right to use the platform with a set of responsibilities that entail, well, not being a dick about it.
PS. Thanks to Syracuse University for this awesome list of freedom of speech cases.