What would violate First Amendment rights by government action on social media?

Question

The Twitter Files have been released over recent weeks. There have been quite a few claims, counter claims, people with their metaphorical hair metaphorically on-fire, etc., about exactly what involvement various government agencies and law enforcement agencies had with the policy at Twitter. Here is a Google News search that will show many more of the news stories on this topic.

There have been claims that, for example, a team of FBI agents worked closely with Twitter, and indicated individuals and groups that should have their Twitter accounts throttled, suspended, or permanently banned.

My stance on that is that, for now, I will wait to see what precisely comes of it. Also for other social media outlets such as Facebook and YouTube, I am waiting to see what the final nature of evidence shows. However, in the mean time.

What is the threshold for acceptable involvement of, for example, the FBI in the operations of, for example, Twitter? The FBI is, after all, an arm of the government. At what point does FBI pressure on the postings of a person or group on a social media outlet cross over into violations of constitutional rights? I use the FBI as example, but it need not be limited to the FBI, nor to Twitter. It could be any largish law enforcement agency, and any largish social media outlet.

Answer 1

As I understand the case law, the government retains the right to limit speech for the purposes of public safety and national security. Any government action that falls outside that rubric would constitute a violation of the First Amendment.

That being said, there are two matters that people involved in this discussion seldom address.

1. A government agency asking (as opposed to compelling) a private organization to limit speech is not a First Amendment issue. Private companies are entitled to limit speech within their domains in any way they desire, so a company that voluntarily agrees to do what a federal agency asks is within its rights to do so. Groups and people affected might sue the company on non-1A grounds (such as violation of the company's terms of service or false advertising or some such), but not on 1A grounds itself.
2. Any actual violation of the First Amendment is merely a civil tort, subject to penalties and restoration. It's not a particularly big deal as legal issues go: if a court found such a violation it would (at worst) order the government to pay fines and legal fees, and to cease any further interference with said speech. It's on the same level as a trespassing charge — pay your fine and don't do it again — and not the cosmic wrong that people build it up to be.

This Twitter thing is mainly a product of the right-wing outrage machine (as other issues have been products of the left-wing outrage machine). They are trying a case in the court of public opinion that they could never legally make in a court of law, because they aren't really interested in the 'civil rights' aspect. They are only interested in the emotional turmoil they can create. The mere fact that they can try this case in the court of public opinion is a clear sign that there are no First Amendment issues in sight.

Answer 2

What would violate First Amendment rights by government action on social media?

This depends a bit on how a court may interpret the government's actions. Were the actions based on the content of an individual's expression, or were they neutral to the underlying content? In terms of constitutional protections, the government's interests are ordered like this:

Legitimate Interest < Substantial Interest < Compelling Interest

In order to determine if the government meets the standards that it claims it does, the courts offer the following types of review:

Rational Basis < Heightened (Intermediate) Scrutiny < Strict Scrutiny

I think it's pretty easy to argue that the actions here most likely based on the content of the speech, since most content-neutral restrictions are generally of the form of time/place/manner restrictions. You probably do have a right to march in protest down the street, but you may not have a right to do that now, or on this particular street, and you may not be allowed to use a bull horn to shout your favorite chants from while doing so. For this reason I suspect a court would apply strict scrutiny to the FBI's actions. Twitter, not being the government, has not violated anyone's First Amendment rights.

The basic idea of having different levels of judicial scrutiny when examining Constitutional claims first came about in United States v. Carolene Products Co. (1938) (see Footnote 4 beginning on page 9). An argued compelling interest is treated by the courts today under strict scrutiny, which presumes a law or policy is invalid unless the government can demonstrate that it is narrowly tailored to serve the compelling purpose and that there are no other "least restrictive means" in order to do so.

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I have not personally read the Twitter files since Twitter itself does not interest me. The more metaphorical hair fires that occur just seems to increase there on a daily basis ever since it's inception, and I can personally find plenty of other town squares to shout fire from (such as Politics.SE). That being said, in every town square you can philosophize in there will be pickpockets and thieves doing bad things and the government could potentially argue that a compelling interest exists in patrolling that town square looking for bad-doers (perhaps even going so far as to conspiring with the merchants bordering the town square to install hidden security cameras). In the general case of social media companies, the bad-doers come more generally in the form of human traffickers, pedophiles, and terrorists, with the first two being a bit more easily qualifiable than the last. If a plaintiff or petitioner seeks relief from the courts against the government for singling them out on the basis of political viewpoint alone, the government would need to prove that their actions were in fact not directed against them on the basis of their political viewpoint (which would violate that individual's constitutional rights), but for some other compelling reason. That reason (whatever it may be) would then be strictly scrutinized by the courts to determine if the government's actions were narrowly tailored and not overly broad to further it's interests and restricted the least amount of speech possible.

Disclaimer: I am not a lawyer, just sometimes particularly good at finding things on the internet and regurgitating them for internet points. I would appreciate any corrections to be pointed out if I am mistaken. Some First Amendment cases are decided on the basis of Heightened Scrutiny, but my understanding here leads me to believe that any action arising from the FBI's role in all of this would be treated such that the government would need to prove a compelling interest.

Answer 3

So we have this article from the U.S. Congress website that states the following (bold added for emphasis):

The First Amendment is subject to a state action (or governmental action) limitation similar to that applicable to the Fifth and Fourteenth Amendments. The Supreme Court has stated that a private entity can qualify as a state actor in a few limited circumstances, such as 1 when the private entity performs a traditional, exclusive public function; [2] when the government compels the private entity to take a particular action; or [3] when the government acts jointly with the private entity.

Therefor, to prove Twitter was a limited state actor, it must be proven that Twitter was either compelled by the government OR willingly cooperated with the government when it made it's decisions against the alleged affected accounts, per the bolded rules in the above quote. Eitherway, it must be shown that but for interaction with the government, Twitter would not have targeted the alleged affected accounts as they did. It should also be proven that either the government agency authorized these actions OR that the agents of the government presented themselves as such to Twitter.

Once this is established, Twitter is a functional state actor only in the actions it took following it's interaction with the government and is therefore potentially liable for any civil right's violations as if they were a government agency (Accounts they took actions against without any government involvement in their decision making.). It does not matter if Twiter was compelled under threat of adverse government action or promise of government favor OR if Twitter cooperated with government request for action without any threat or promise, it becomes state action from the moment the government asks a private to take an action that is in the government interest, at which point the private entity is operating as a limited state actor for the purposes of civil rights law.

Side Note: Condition 1) typically refers to a company that forms "company towns" which are obligated to comply with Constitutional restrictions despite the community being entirely privately owned and operated.

Answer 4

There's a number of complex issues feeding into this.

Twitter did this willingly

There's no indication that the government did this by force. Twitter's Trust and Safety team willingly deleted content, limited the reach of posts and users, and in some cases suspended accounts in concert with the FBI

Taibbi also found that a “surprisingly high number” of the FBI’s missives were requests “for Twitter to take action on election misinformation,” including obvious jokes from accounts with low number of followers.

There is no constitutional protection from Twitter doing any of that. Twitter is a private company and can remove content as it sees fit.

The Big Tech/Common Carrier/Public Square debate

Prior to 2016, it's unlikely any Republican would have espoused these ideas, for fear of being labeled censorship. But then Donald Trump came along and openly warred with social media. He later wrote an executive order to that effect

The growth of online platforms in recent years raises important questions about applying the ideals of the First Amendment to modern communications technology. Today, many Americans follow the news, stay in touch with friends and family, and share their views on current events through social media and other online platforms. As a result, these platforms function in many ways as a 21st century equivalent of the public square.

Most of the executive order, however, was pure bluster. He was openly critical of Section 230 of the Communications Decency Act that shields companies that publish data from third parties from civil liability. Most of the EO focused on why Trump thought Section 230 did not apply to companies like Twitter. As EOs do not carry the force of legislation, it could not actually alter how the courts have ruled Section 230 applies.

Trump is not alone in this viewpoint. Elizabeth Warren (hardly a Trump ally) has made more or less the same claim

[Musk's purchase of Twitter] is dangerous for our democracy. Billionaires like Elon Musk play by a different set of rules than everyone else, accumulating power for their own gain. We need a wealth tax and strong rules to hold Big Tech accountable.

If Twitter were re-defined as a common carrier that would potentially change things for it

Common carriers are prohibited from discriminating against lawful goods or communications. A telecommunications company cannot treat calls from white supremacists differently from calls from a vegan, a communist, or a flat Earther. A ferry cannot deny passage to a paying customer waiting on the wharf.

This argument is novel, however, because telephone companies do not regulate the speech made over their service, a point made later in the article

But [the common carrier] analogy does not work. One of the critical features of common carriers is that they hold themselves out to the public as neutral conduits, treating all communications or goods the same. The largest social media companies make it explicit in their content moderation rules that they do not treat all content equally.

SCOTUS still views compelled speech dimly

From 2018, there was NIFLA v Becerra over California's law compelling crisis pregnancy centers (which aim to convince pregnant women not to have abortions) to provide materials to their clients about how they could obtain an abortion. SCOTUS ruled that unonstitutional (from Page 18 of the PDF)

In sum, neither California nor the Ninth Circuit has identified a persuasive reason for treating professional speech as a unique category that is exempt from ordinary First Amendment principles. We do not foreclose the possibility that some such reason exists. We need not do so because the licensed notice cannot survive even inter- mediate scrutiny. California asserts a single interest to justify the licensed notice: providing low-income women with information about state-sponsored services. Assuming that this is a substantial state interest, the licensed notice is not sufficiently drawn to achieve it.

Where's the line?

The line is compelled speech (i.e. "Say this or else we will levy some sort of penalty towards you"). This would include things like the FBI threatening to investigate Twitter if they don't cooperate. Courts (and the public in general) would not be pleased with that.