Why the First Amendment Can't Protect Trump on Facebook or Twitter

Here's what you need to know about the constitutional protection of free speech in America.

Marguerite Reardon Former senior reporter
Marguerite Reardon started as a CNET News reporter in 2004, covering cellphone services, broadband, citywide Wi-Fi, the Net neutrality debate and the consolidation of the phone companies.
Marguerite Reardon
5 min read
Bill Oxford via Getty Images

Conservatives have been crying First Amendment foul after social media companies, including Twitter and Facebook, barred accounts by former President Donald Trump and others whom they say fomented violence in the wake of the attack on the US Capitol -- and after Apple, Google and Amazon shut down conservative social media service Parler.

Twitter in January permanently shut down Trump's personal account as well as other accounts he's used. Twitter said it was banning the president for his inflammatory tweets after a pro-Trump mob stormed the Capitol as Congress met in a joint session to finalize the electoral votes for Joe Biden as president. Twitter also suspended the accounts of other prominent Trump supporters, including retired Gen. Michael Flynn, Trump lawyer Sidney Powell and supporters of the bogus QAnon conspiracy theory, which has been embraced by many of Trump's most avid fans. 

The move came after Facebook and Instagram suspended Trump indefinitely from their platforms. Twitch and Snapchat also disabled Trump's accounts. Meanwhile, Apple and Google banned Parler from their app stores. And Amazon cut off its web hosting services to Parler. 

The actions marked a dramatic turnaround for companies that for years have largely had hands-off policies when it comes to speech on their platforms. But the violence in Washington, DC, served as a turning point, with companies moving to silence both individual voices and services seen as inciting violence.   

Conservatives say these actions amount to censorship and violate their First Amendment rights to free speech. That isn't the case. This FAQ breaks down the issue. 

Is it legal for social media platforms such as Twitter and Facebook to ban Trump and others from their platform? 


Free speech protection under the First Amendment to the US Constitution applies only to the government censoring speech. It doesn't mean private companies can't decide what types of speech they allow on their platforms. Companies can and do have their own standards and policies that users must follow. 

And they can remove users who violate those standards.

"It's a common mistake people make in understanding First Amendment protections," said Clay Calvert, a law professor at the University of Florida Levin College of Law. "There is no constitutional right to tweet or post on Facebook."

Calvert said private companies, like publishers of newspapers, are able to determine what can be posted on their platforms and what can't. They offer terms of service, which consumers agree to abide by. 

It's this violation of terms of service that Twitter, Facebook and other platforms cited for blocking Trump. Calvert points out that the First Amendment gives private companies the right to moderate their platforms. 

What was Twitter's reasoning for banning Trump?  

The social media company run by CEO Jack Dorsey said it was concerned about two tweets that Trump sent that could have incited further violence after the Jan. 6 Capitol Hill riots. 

"The 75,000,000 great American Patriots who voted for me, AMERICA FIRST, and MAKE AMERICA GREAT AGAIN, will have a GIANT VOICE long into the future. They will not be disrespected or treated unfairly in any way, shape or form!!!" one tweet read.

Another read: "To all of those who have asked, I will not be going to the Inauguration on January 20th."

Twitter said the first tweet, which referred to Trump's false claims that he won the November presidential election, could have been viewed as spurring his followers to further violence by urging them to overturn the election because of his baseless claims of fraud. 

The company said the second tweet could have signaled to those considering violent acts that the inauguration ceremonies on Jan. 20 would be a "safe" target since Trump wouldn't be attending.

"Our determination is that the two Tweets above are likely to inspire others to replicate the violent acts that took place on January 6, 2021, and that there are multiple indicators that they are being received and understood as encouragement to do so," Twitter said in a blog post

Twitter, along with Facebook and Instagram, pointed to their terms of service, which prohibit inciting violence on their platforms. Snapchat also issued an indefinite ban. All of them say Trump violated their terms of service. 

Twitter had flagged some of Trump's previous tweets for including false information about the 2020 election and for perpetuating false claims that there was widespread fraud in the election. The Department of Justice and other US agencies said there was no evidence of massive voter fraud, with numerous US election agencies describing the November elections as "the most secure in American history."

Before the Capitol was stormed by violent pro-Trump supporters, Trump had spoken to the crowd and encouraged his followers to walk down to the Capitol to continue fighting for an election win on his behalf. Meanwhile, inside the Capitol, Congress was meeting to certify the Electoral College votes for now President Joe Biden. Biden won the presidential race with 81.28 million votes and 306 electoral votes.

What did Trump have to say about Facebook's Oversight Board upholding Facebook's suspension?

Unsurprisingly, the former president wasn't happy with Facebook, as well as other social media companies. He took to his new blog to lash out at them after Facebook's Oversight Board, which reviews content-moderation decisions, found that Facebook's suspension was justified. 

"What Facebook, Twitter, and Google have done is a total disgrace and an embarrassment to our Country," Trump wrote. "Free Speech has been taken away from the President of the United States because the Radical Left Lunatics are afraid of the truth, but the truth will come out anyway, bigger and stronger than ever before."
He also called the social media companies "corrupt" and said they'd pay a "political price."

What about Simon & Schuster canceling the publication of Sen. Josh Hawley's forthcoming book? Was that a First Amendment violation?

No. Again, the First Amendment applies only to censorship by the US government. Simon & Schuster, owned by ViacomCBS, is a private company. It can decide what to publish and what not to publish. No one has a constitutional right to have his or her book published. 

Any lawsuit that arises from the publisher canceling the publication of Hawley's book would likely be based on a charge of breach of contract between Hawley and the publisher. But it wouldn't be based on any First Amendment claims. 

What about Apple and Google removing the social media platform Parler from their app stores? Or Amazon ending hosting services for Parler? First Amendment issue?

No. As with social media platforms and book publishers, the First Amendment doesn't compel Apple, Google or Amazon to offer all apps or to provide web services to any company. The First Amendment and the free speech guarantee is limited to preventing the government from censoring speech.  

But that's not to say there aren't other concerns. RonNell Andersen Jones, a professor of law at the University of Utah and an affiliated fellow at Yale Law School, said there's a difference between First Amendment protections and what we consider as limitations on free speech. 

"We might want to think more carefully about our free speech and expression values when a company is unable to operate because another company controls a piece of infrastructure," she said. "That's a worthy debate to be having. But it's not a First Amendment issue."