Social media can delete posts, but this isn't the same as censorship.
On Wednesday social media influencer Justin Hart announced that he had filed a federal lawsuit against social media giants Facebook and Twitter, as well as against President Joe Biden, and the U.S. Surgeon General Vivek Murthy for violating his First Amendment rights to free speech. Hart, who is a data analyst and digital strategist, claims that the federal government has colluded with social media companies to monitor, flag, suspend and even delete social media posts it deems to contain "misinformation."
He claimed that over the past year Facebook and Twitter suspended his accounts multiple times for his sharing of what he said is "data" and "scientific research" about Covid-19.
Hart is being represented by attorneys from the Liberty Justice Center, which identified itself as a national public-interest law firm that fights to protect the fundamental constitutional rights of its clients.
"The recent admission that the White House has a team of government workers flagging Americans’ social media posts for removal is extremely disturbing, and it’s illegal," Brian Kelsey, managing attorney at the Liberty Justice Center said in an emailed statement to this reporter. "Regardless of one's politics or views about COVID, every citizen should be greatly alarmed by this melding of Big Government and Big Tech to control what you see, hear and know about one of the greatest public issues of our time."
The lawsuit, Hart v. Facebook, was filed August 31, 2021, in the United States District Court for the Southern District of California.
First Amendment Issue?
In the emailed statement, Hart questioned the power that social media companies currently maintain, but also suggests that the government is directing companies such as Facebook and Twitter to censor the public on critical issues such as the novel coronavirus.
However, it does seem to be an overreach to even suggest this is a First Amendment issue.
"Hart's suit has absolutely no merit," said Robert M. Jarvis, professor of law at Nova Southeastern University. "Facebook and Twitter are private companies, so the First Amendment doesn't apply to them – the First Amendment only prevents the government from prohibiting speech. Thus, Facebook and Twitter are free to ban any content that violates their posting rules."
This could be why Hart also named President Joe Biden and the U.S. Surgeon General Vivek Murthy in his lawsuit, as the government cannot ban speech. Hart suggested that social media companies were directed by Biden and Murthy to stop the flow of free speech.
Jarvis told this reporter that isn't quite accurate either.
"President Biden and General Murthy have not banned Hart from speaking, but have rightly called out folks like Hart for spreading misinformation," explained Jarvis. "Even if Biden and Murthy can be considered 'the government,' which is a dubious proposition; the First Amendment does not protect false speech, hence the reason a person can be sued for libel or slander. Moreover, the U.S. Supreme Court has recognized that speech that presents an immediate danger can be prohibited. The famous example is Justice Holmes's observation that a person cannot falsely yell fire in a crowded theater. See Schenck v. United States, 249 U.S. 47 (1919). Likewise, a person cannot falsely say, while in an airport, that there is a bomb. Spreading obvious falsehoods about a pandemic falls into this same category."
Understanding Censorship
This is an issue that resurfaces anytime anyone is silenced on various online platforms from forums to online auctions to social media. Individuals who use those platforms voluntarily agree to the terms of use with the companies, which can include what is allowed and what isn't allowed.
Facebook makes it clear it will delete posts that violate its community standards – and at times that can seem to be an overreach to those who have had their posts deleted. Yet it isn't censorship.
"While people regularly claim they are being censored when they are prohibited from saying whatever they feel like saying, censorship only actually occurs – from a legal point of view – when the government interferes with your right to speak," said Jarvis. "And even then, as noted in the previous paragraph, you must be engaging in protected speech. The First Amendment provides refuge for many different types of speakers, some quite reprehensible (e.g., Nazis, white supremacists), but not those who are spreading lies that have a high probability of killing people."
