Twitter can legally bar Trump under the first amendment

When Simon & Schuster cancelled its plans this week to publish Sen. Josh Hawley’s book, he called the action “a direct assault on the First Amendment.”

And when Twitter permanently banned President Donald Trump’s account Friday, his family and his supporters said similar things. “We are living Orwell’s 1984,” Donald Trump Jr. said — on Twitter. “Free-speech no longer exists in America.”

The companies’ decisions may have been unwise, scholars who study the First Amendment said, but they were perfectly lawful. That is because the First Amendment prohibits government censorship and does not apply to decisions made by private businesses. The basic legal question could hardly be more straightforward, said RonNell Andersen Jones, a law professor at the University of Utah.

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“It’s become popular — even among those who plainly know better — to label all matters restricting anyone’s speech as a ‘First Amendment issue,’” she said. “But the First Amendment limits only government actors, and neither a social media company nor a book publisher is the government.”

But many in the legal community were nonetheless uneasy about the developments, which underscored the enormous power of a handful of social media companies that are largely insulated from accountability and may change positions on what speech is acceptable as executives come and go.

“We understand the desire to permanently suspend him now, but it should concern everyone when companies like Facebook and Twitter wield the unchecked power to remove people from platforms that have become indispensable for the speech of billions,” said Kate Ruane, an American Civil Liberties Union lawyer. “President Trump can turn to his press team or Fox News to communicate with the public, but others — like the many Black, brown and LGBTQ activists who have been censored by social media companies — will not have that luxury.”

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Hawley’s book, titled The Tyranny of Big Tech, was to have been published in June. In cancelling it, Simon & Schuster said that “it will always be our mission to amplify a variety of voices and viewpoints” but that Hawley had crossed a line in light of “the disturbing, deadly insurrection that took place on Wednesday in Washington.”

The publisher was free to make that decision, legal experts said.