Joseph Tomain is a lecturer at IU's Maurer School of Law
(IU Maurer School of Law)
When Twitter banned President Trump last week, it was not a violation of his First Amendment rights, as many of his supporters have claimed.
Joseph Tomain specializes in free rights speech, particularly in online environments, and teaches classes on information privacy and internet law at IU’s Maurer School of Law.
“I wish that I could provide a simple answer about how we overcome the false impression that First Amendment rights have been violated here under existing First Amendment law, including the current makeup of the Supreme Court,” Tomain said. “This is not a First Amendment violation because the actions were done by private parties, not by the government.”
The permanent banning of the president from Twitter was not the only action that arose in the wake of last week’s insurrection at the Capitol following a rally led by President Trump.
Google and Apple removed the conservative social media platform Parler from its applications for what they said were an increase in posts that incited violence.
Then, on Sunday, Amazon Web Services removed Parler from its cloud hosting platform, effectively shutting down the site until it can either find a new host of build its own hosting sight.
Tomain said that because the president and those who have been banned have alternative platforms to use other than Twitter, as well as the fact that Parler could be accessed via any web browser, there were no real issues.
However, while Tomain says there are no First Amendment issues under current law regarding Amazon’s denying Parler its services, the fact that there are so few server hosts is something that may need to be dealt with.
“While it is problematic to have less than a handful of companies dictate who can have access to communication on the Internet, it's also problematic to have the government be the entity that does that as well,” Tomain said. “So, this is a new, fascinating and a complex issue that we're facing."
And it's a pretty straightforward one.
"Who should be the gatekeepers of speech online? And what should those limits be?" Tomain said. "And while there's problems of having the government be the gatekeeper, we can see now, perhaps, that there's problems with private entities also playing a gatekeeping role.”
But until Congress enacts new legislation or the Supreme Court rules differently, none of the issues resolving around the Twitter ban of the president and Parler losing its host are violations of the First Amendment.
“This controversy is an opportunity for Americans of whatever political beliefs they might hold to be able to realize that we have a new issue that we need to confront, as far as the regulation of speech online,” Tomain said. “And it transcends this specific controversy.
"It would be nice going forward if we can have a thoughtful conversation among legislators and citizens as to what we believe makes sense to make sure that the protection of free speech that our founders provided for us in the constitution is not disrupted by either public or private actors.”
