First Amendment

21st-Century First Amendment Challenges

The First Amendment restricts only government action that restricts speech, so all private actors are free to restrict any way they like without running afoul of the First Amendment. On one hand, decisions by social media companies to block any comment or user are not violations. On the other [Page 659]hand, a government official who seeks to block others who want to speak on social media platforms is in violation of the First Amendment. The gray area involves government officials who want to block others on what the officials claim to be their personal (not government) platforms. Courts have asserted that if government officials (including the president) use their social media for official business, they must allow unfettered access.

When free expression is limited, it usually occurs because of a conflict with another constitutional right. Courts are forced to “balance” between the conflicting rights and choose a winner. A frequent conflict occurs between free expression and national security. In times when the country is afraid, it tends to favor security over free expression. The U.S. Secret Service sometimes establishes “free speech zones,” purportedly to protect the safety of those in attendance at controversial gatherings. Critics claim these areas are established to keep protestors away from not only political figures but also from media coverage. Since the terrorist attacks of September 11, 2001 and the establishment of the Department of Homeland Security, government has won in balancing the need for security with free expression. Free speech zones had been created at many universities during the Vietnam War as a way to limit protests, but most constitution scholars believe those restrictions are unconstitutional and a number of universities have begun eliminating such policies.

President Donald Trump repeatedly accused media of publishing “fake news” and threatened to sue media outlets, even referring to the media as the “enemy of the American people.” He suggested that networks should lose television licenses because of unflattering stories. He called for stricter libel laws, seemingly not understanding that the cornerstone of the First Amendment is the ability to criticize public officials.

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