Debate Desk
Are Social Media Platforms Private Companies With No Free-Speech Concerns?
Private firms can set rules, but when they act at the government's urging or hold the main public forum, free expression is at stake and the law is unsettled.
The claim
The First Amendment restrains government, not private companies. A platform has the right to decide what appears on its service, as a newspaper does, and users who dislike its rules can go elsewhere. Complaints about moderation, say defenders, are really complaints about the freedom of private property.
The answer in three points
- That is true as a matter of constitutional law, and it is incomplete. The First Amendment does not bind a private platform, and in Moody v. NetChoice (2024), the Supreme Court recognized that a platform's curation of its feed is expressive activity with First Amendment protection. A company may set its rules.
- A free-speech culture is wider than the First Amendment. When a few companies control the places where most public conversation happens, how they use their power matters to the health of public debate, and citizens can criticize it, boycott and demand clear, even-handed rules.
- The concern becomes constitutional when government is involved. If officials pressure a platform to take down speech, the platform's act is no longer wholly private. In NRA v. Vullo (2024), the Court unanimously held that a government official may not use coercive power to punish or suppress disfavored speech through a third party.
The best answer to concern about platform power is competition, transparency and a firm rule against government coercion. Those tools respect both property and speech.
The numbers
- The Supreme Court decided Moody v. NetChoice in July 2024, holding that content moderation by platforms involves expressive activity and sending the cases back for a further analysis.
- The Supreme Court decided NRA v. Vullo in May 2024 by a vote of 9 to 0.
- The Communications Decency Act of 1996 included Section 230, which protects platforms from liability for most content posted by users and for good-faith moderation.
What they will say next
"If you do not like it, leave." When the alternative is a service with few users, the choice is not equal, and people are entitled to ask for fairness without asking for government control.
"Moderation prevents abuse." It does, and it can also silence lawful views. Clear rules, appeals and transparency help.
"The government cannot force a platform to host speech." Under Moody the question is delicate. Conservatives disagree about whether and how states may regulate large platforms.
"This is only about conservatives complaining." The principle of open debate protects everyone, and censors have gone after many different views over the years.
Support the free flow of ideas, in law and in the habits of the companies that host them.
"Government should not tell platforms what to carry." That is also a principle conservatives defend, which is why proposals for states to require carriage of speech are contested in court and among conservatives themselves. The agreement is on the point that government should not push platforms to remove speech either.