What is and isn’t protected by the First Amendment on social media

ANCHORAGE, Alaska (KTUU) - Twitter suspended President Donald Trump’s account two days after hundreds of his supporters led a deadly storm at the nation’s Capitol. According to lawyers in Anchorage, and across the country, Twitter is within its legal rights to do that because it’s a private company.

Margaret Stock is an attorney with Cascadia Border Law Group in Anchorage and a former professor of Constitutional Law at the University of Alaska and West Point. Being former military, she said she watched the events of Jan. 6 — like many people — in horror.

“I thought it was particularly upsetting that members or former members of the U.S. military were engaging in this kind of behavior,” she said. “We try really hard in the military to educate people about the law, and it’s very disturbing to see people who swore an oath to uphold the Constitution attacking the U.S. Capitol building.”

Referring to a pocket-size copy of the U.S. Constitution given to her by the Department of Defense many years ago, she explained how Twitter and other social media platforms are allowed to block certain messages as private companies.

“It says, ‘Congress shall make no law abridging the freedom of speech,’ so we start with the First Amendment and it says ‘Congress shall make no law.’ It doesn’t say anything about Twitter or Facebook or anything like that. It says ‘Congress,’” she said.

Granted, Stock said she sees future debate in the permanent ban of the president from Twitter for all speech, but banning him for incitement was protected by the Constitution. She said the same rules apply to posts being removed that promote other false information and organization of violent protest.

So it’s the government that can’t tell you what you can and cannot say with exceptions. Stock pointed out several situations where what one says is not protected by the First Amendment such as child pornography, yelling “fire” in a theater if there’s no fire and expressing you want to do harm to the president.

There is even an exception to free speech rights established in a precedent that is called “fighting words.” Meaning if your words start a fight, you’re not protected by the First Amendment.

“A speech that quote, ‘tends to incite an immediate breach of the peace by provoking a fight,’” Stock said, again citing her pocket Constitution. “And this came up in a famous case in 1942 and it’s basically cuss-words that cause people to fight immediately.”

There’s also no protection against making false statements of fact according to Stock, and the Constitution.

“So if you get out there and you say, for example, ‘Some company has voting machines and they’re flipping the vote,’ and it turns out not to be true, you don’t have a free speech right to say that,” Stock said. “Which is why Dominion is now suing a number of people who’ve made false statements of fact about its voting machines.”

She said the exception of false statements of fact is getting very complicated in the Supreme Court lately and is a highly-debated subject with the current events.

Protesting is also a matter of free speech. Following the Capitol riot, warnings of large armed protests at all 50 state capitols are coming from the FBI.

“You have to be peaceable,” Stock said. “Now, you do have a right to organize to send messages out to say that you want to have a peaceful demonstration, but it has to be peaceful. So if you’re encouraging people to bring weapons or encouraging people to attack members of the Legislature or making death threats or that sort of thing, that’s obviously not protected by the first amendment of the constitution”

Included with all these matters of free speech are also contract laws. Stock said even though you may not have read them, social media platforms are totally allowed to make their own terms of service for users. Which may include things like not telling lies and inciting violence.

Therefore, Stock said Twitter almost had an obligation to take action.

“They actually would incur liability if they didn’t take some action because they might end up getting sued for having passed along the message that resulted in the violence.”