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Twitter v. Taamneh (2023)

Knight First Amendment Institute v. Trump (2020)

Manhattan Community Access Corp. v. Halleck (2019)

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To what extent does content moderation, managed by social media platforms such as Twitter or Facebook, conflict with the First Amendment protections of free speech?

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In our project, we will discuss the age-old and ever-relevant question of the power that monopolies or large corporations possess over the public forum we know as social media platforms.  We will be covering different perspectives on the matter, which will include those that agree and disagree with the current format of how the public forum is managed. There is a complex tension between the parties involved, and of governance versus the constitutional rights citizens rightfully hold. To begin, the definition of the First Amendment is crucial to understand what is actually being protected. The main point is that is prohibits government censorship but not private action, which leads to question of whether or not large tech companies are considered private actors or public forums. Since they are known for their massive influence over modern communication, many have come forward to argue that the power social media platforms wield over speech is so significant that it mirrors government censorship, and therefore wish for the extension of the First Amendment protections over the users of said platforms. On the other hand, supporters claim that private companies have every right to set and enforce their own community standards, especially to curb negativity like hate speech, misinformation, or threats in general. The courts have generally supported the latter view, though not without nuance. Cases we cover such as Knight First Amendment Institute v. Trump highlight how public officials using private platforms may not silence critics, while Manhattan Community Access Corp. v. Halleck reaffirms that private entities are not bound by the First Amendment. More recently, Twitter v. Taamneh touches on platform accountability in the context of harmful content, further complicating the question of liability and responsibility. This is an ongoing debate of legal and philosophical magnitude, and discourse within this topic may continue to push courts and lawmakers to rethink the boundaries between private control and public speech rights. Our stance on the matter is that corporations should not have right/power under the First Amendment to manage and regulate these public platforms, simply because they could misuse this power in their advantage, spreading misinformation for their own motives.

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Social media platforms are a dominant public forum that shapes discourse more powerfully than traditional media. Recent developments in the social media space, such as Twitter’s battle with protecting children’s privacy, or the case of Google being a monopoly, have challenged the notion of social media.

Although these platforms are privately owned, they have public functions such as activism, discussions etc. Thus, “the nature of social media platforms as private entities that perform public functions has complicated First Amendment protections” (Free Speech Center).

This illustrates the difficulty of online platforms hosting speech in a kind of public forum. It becomes more difficult to determine how and when free speech and content moderation should apply in such online spaces.

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In Twitter, Inc. v. Taamneh (2023), the Supreme Court unanimously ruled that social media platforms, including Twitter, Facebook, and Google, did not violate the Antiterrorism Act by hosting or recommending ISIS-related content, because the plaintiffs failed to show that the platforms knowingly provided substantial assistance to a specific terrorist attack at the Reina nightclub in Istanbul. The Court sidestepped Section 230 immunity questions and focused on statutory interpretation where they interpreted a lack of direct connection between the platforms’ content moderation practices and the attack. In the context of the guiding question, this case indirectly supports the position that content moderation does not inherently conflict with First Amendment protections, as platforms’ decisions to host or remove content are exercises of their own First Amendment rights as private entities, but at the same time, it clarifies that an overly broad liability for failing to moderate content could lead platforms to over-censor, which could limit protected speech. This court cases really highlights the need for precise legal standards to avoid indirect suppression of lawful speech through aggressive moderation driven by liability fears.

Even though Twitter v. Taamneh isn’t directly about the First Amendment, it still connects to the bigger conversation about how much responsibility platforms have for the content people post. The Court basically said Twitter isn’t automatically liable just because bad content showed up on the platform, which reinforces the idea that they’re not on the hook for everything users say. That lines up with Halleck, which made clear that platforms like Twitter aren’t the government, so they’re not bound by free speech rules in the same way. But in Knight v. Trump, things shift, as when a public official uses a platform to communicate in an official way, suddenly there are First Amendment limits. Put together, these cases show that while platforms mostly get to make their own rules about moderation, their role gets more complicated when public figures are involved or when the content itself raises big legal or ethical questions.

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Knight First Amendment Institute v. Trump (2020)

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Knight First Amendment Institute v. Trump (2020)

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In Knight First Amendment Institute v. Trump, the U.S. Court of Appeals for the Second Circuit ruled that then-President Donald Trump violated the First Amendment by blocking users from his personal Twitter account, @realDonaldTrump. While originally created before his presidency, Trump used the account during his time in office to announce policies, engage with the public, and address national matters. Because of its official use, the court found the account had transformed into a designated public forum, meaning Trump, as a government official, could not exclude individuals from it based on their viewpoints.

This case is significant because it shows how private platforms can take on public forum characteristics when used for governmental purposes. The ruling emphasized that it's not just the platform's ownership that matters, but how it’s used and by whom. Even though Twitter is a private company, the First Amendment applied here because a government actor was limiting access to speech.

In contrast to Halleck, which reaffirmed that private entities are not state actors, and Taamneh, which explored liability without invoking public forum doctrine, Knight bridges the gap. It highlights a gray area where private platforms meet public functions, suggesting that constitutional protections can and sometimes should follow government officials into digital spaces.

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Manhattan Community Access Corp. v. Halleck (2019)

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Manhattan Community Access Corp. v. Halleck (2019)

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The New York law requires various cable providers to provide TV channels that can be publicly accessed. These channels are operated by the Manhattan Community Access Corporation (MNN). When MNN suspended the producers, DeeDee Halleck and Jesus Melendez, from using its facilities, they sued the corporation, claiming First Amendment violations. The Supreme Court ended up ruling 5-4 that MNN is not a state actor and is thus not restricted by First Amendment liabilities. The majority maintained that operating publicly accessible channels is not a function that is “traditionally and exclusively reserved to the State,” which explains that since MNN is a private business, instead of a state actor, MNN could not be restricted by free speech protections. This case essentially specifies what a state actor is, and continues to regulate how these protections are applied on privately operated platforms. This case supports that content moderation by private groups do not violate First Amendment protections, given that the Constitution only places limitations on government.

In context of online platforms like Twitter, this case aligns with the idea that not all speech is viewed under the First Amendment. It teaches courts on how to address issues with digital platforms and free speech because even as a public forum, they are not necessarily treated as such because they are not exclusively executing state functions. This reasoning contrasts with Knight First Amendment Institute v. Trump, where the Court stated that government officials cannot block users from commenting on media accounts. In this case, the First Amendment applied because the platform was being used in a governmental way, while in Halleck, the company was private. Halleck also relates to Twitter v. Taamneh, which further established the idea that platforms are not responsible for user content unless they are directly involved in illegal conduct. It supports how private platforms are not state actors and are thus, not able to be constrained by the First Amendment. These cases highlight the balance and the legal boundaries between moderating private content and the government censoring speech.

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One perspective of social media companies is that since they are part of corporations, they have moral responsibilities when it comes to moderating content in order to "prevent harms they can foresee, especially when they can do so at little cost" (Sanders). This shows content moderation as an ethical obligation, with a stronger emphasis on platforms' duty to intervene and moderate harmful speech to protect the public. In relation to the guiding question, this counterargument emphasizes that content moderation may be viewed as an ethical responsibility instead of a First Amendment violation, since the Constitution only restricts the government from censoring. From this perspective, platforms can intervene to prevent harm without violating freedom of speech.

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Scholarship Continued - Shift to Government/Systemic Change

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Scholarship Continued - Shift to Government/Systemic Change

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Evelyn Douek brings up a different point than the traditional view of content moderation as isolated decisions. She argues that instead, “content moderation should instead be understood as a project of mass speech administration and that looking past a post-by-post evaluation of platform decisionmaking reveals a complex and dynamic system that needs a more proactive and continuous form of governance than the vehicle of individual error correction allows” (Douek). This perspective illustrates content moderation as a systemic process, emphasizing how there is need for long-term policies and structural changes. This view suggests that in addressing speech regulations in online platforms, people should be focusing on how platforms are designed to influence speech as a whole, bringing a unique perspective to the debate. Douek’s point shifts the focus away from violation of rights towards how platforms should be governed. It reframes the issue as a matter of how institutions manage speech, emphasizing how we need long-term changes for modern digital platforms.

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Support - Prevent Corporate Overreach in Moderating Speech

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Support - Prevent Corporate Overreach in Moderating Speech

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The CRS report scholarship delves into the relationship between social media platforms and First Amendment protections. In summary, the article explains the challenges in applying traditional free speech frameworks to private entities like Facebook and Twitter, which have become central venues for public discourse. These massive corporations have become too large to be able to cover every individual post, and as such, more advanced measures should be taken. The report includes treating social media sites as company towns or news editors, to explore the extent of First Amendment protections applicable to these platforms. It notes that while courts have generally held that the First Amendment does not apply to private companies, the significant role these platforms play in public communication raises questions about whether they should be subject to similar constraints as public forums. Similarly aligning with another scholarship, this perspective shares views with Evelyn Douek's argument that content moderation should be viewed as a system of mass speech administration requiring proactive and continuous governance, rather than isolated decisions on individual posts. Both the CRS report and Douek's analysis call to the need for systemic oversight and structural reforms to address the complexities of online speech, where we don’t apply traditional First Amendment protections, but rather ones that are able to cover a broad range of public discourse.

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Support - Social media platforms do not function as traditional publishers and thus should not possess unrestricted First Amendment rights to moderate content

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Support - Social media platforms do not function as traditional publishers and thus should not possess unrestricted First Amendment rights to moderate content

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In his article, Jimmy Fraley challenges the idea that social media platforms should be granted the same First Amendment protections as traditional publishers. He rebukes the notion that platforms like Facebook and Twitter exercise editorial control akin to newspapers, emphasizing that these platforms do not produce or edit the content they host, simply letting it be posted, with the only scrutinization being for extreme explicit material. Fraley discusses state-level legislative efforts which aim to limit viewpoint-based censorship by large platforms. He also looks at the legal contradictions in court rulings regarding these laws and argues for a reevaluation of the platforms' role in content moderation. This perspective shares similar ideas with Evelyn Douek's view that content moderation should be understood as a comprehensive system requiring proactive governance, even though she argues for a more government-centric approach to applying these censorship practices. Both Fraley and Douek advocate for systemic oversight to ensure that content moderation practices do not infringe upon users' free speech rights.

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Our analysis reveals that the First Amendment does not currently apply to social media platforms in most cases, yet these platforms are where public discourse lives today. This legal gap raises serious concerns: If the government can’t censor speech, but can pressure platforms behind the scenes, and if platforms can remove speech without accountability, then who’s protecting democratic dialogue?

Cases like Knight v. Trump show that First Amendment protections can extend into digital spaces when used by government actors. Meanwhile, Halleck and Taamneh reinforce platforms’ status as private entities. These tensions reflect a bigger question: Should digital spaces be treated like public forums, and if so, how do we balance free expression with safety, ethics, and corporate responsibility?

We believe this issue demands legislative and constitutional reconsideration. Our group calls for clearer guidelines that reflect the internet’s role in democracy, ensuring speech is protected, harms are addressed, and power isn't concentrated unchecked.

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From our various perspectives, from both scholarships and relevant court cases, we have concluded that there are many nuances to moderation of content to where one cannot make a decision in the favor of either party in the power of censorship. Content moderation exists in a gray area where private ownership and public function collide, creating a complex legal and ethical environment. As courts have shown, determining whether private platforms should be held to the same standards as government actors is far from straightforward. In Manhattan v. Halleck, the Court held that a private entity operating a public access channel was not a state actor, reinforcing the idea that private platforms are not bound by the First Amendment in the same way the government is. However, Knight First Amendment Institute v. Trump complicated this view by ruling that when public officials use social media for official purposes, they cannot block users based on viewpoint, treating the digital space as a kind of public forum. More recently, Twitter v. Taamneh explored the liability of platforms for content posted by users, showing that the courts are still navigating the boundary between hosting content and endorsing it. These platforms now serve as primary spaces for public discourse, yet their legal responsibilities remain ambiguous. What makes this even more complicated is that while these companies facilitate open communication, they also reserve the right to curate and limit speech. The guiding question exposes how our traditional understanding of free speech is being tested by modern digital spaces. Rather than clearly siding with one authority over another, these discussions point to the need for a more thoughtful and updated guideline, albeit complex, that can address the new realities of speech and expression.

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1. Twitter v. Taamneh
Oyez. (n.d.). Twitter, Inc. v. Taamneh. Retrieved April 25, 2025, from https://www.oyez.org/cases/2022/21-1496

2. Manhattan Community Access Corp. v. Halleck
Oyez. (n.d.). Manhattan Community Access Corp. v. Halleck. Retrieved April 25, 2025, from https://www.oyez.org/cases/2018/17-1702

3. Knight First Amendment Institute v. Trump
Knight First Amendment Institute. (n.d.). Knight Institute v. Trump. Retrieved April 25, 2025, from https://knightcolumbia.org/cases/knight-institute-v-trump

4. First Amendment Law: Social Media
The Free Speech Center at Middle Tennessee State University. (n.d.). Social media. Retrieved April 25, 2025, from https://firstamendment.mtsu.edu/article/social-media/

5. Scholarship 1 – Jimmy Fraley
Fraley, J. (2023). Social media platforms as publishers? Evaluating the First Amendment basis for content moderation. Princeton Legal Journal. Retrieved from https://legaljournal.princeton.edu/social-media-platforms-as-publishers-evaluating-the-first-amendment-basis-for-content-moderation/

6. Scholarship 2 – Evelyn Douek
Douek, E. (2022). Content moderation as systems thinking. Harvard Law Review, 136. Retrieved from https://harvardlawreview.org/print/vol-136/content-moderation-as-systems-thinking/

7. Scholarship 3 – CRS Report
Congressional Research Service. (2019). Social media: Misinformation and content moderation issues for Congress (CRS Report No. R45650). Retrieved from https://www.congress.gov/crs-product/R45650

8. Scholarship 4 – Mass Speech Administration
University of Michigan Journal of Political Economy. (2023). Reframing content moderation as mass speech administration. Retrieved from https://journals.publishing.umich.edu/jpe/news/153/