The decision by a half dozen of the largest social media companies in the United States to ban President Trump and thousands of his supporters after their posts instigated the violent invasion of the Capitol building on January 6 raised all kinds of difficult questions about the meaning of freedom of speech in the United States. Was the deplatforming a condemnable act of censorship or a necessary means of preventing future attacks? In what circumstances could incendiary and duplicitous speakers like President Trump justifiably be excluded from the platforms? And who should be responsible for determining the speech rules that govern the social media public sphere? These questions pervaded public debate about what some began to call the Great Deplatforming and they generated a wide range of answers.

Despite the vigorous debate about freedom of speech raised by the deplatforming, there was wide agreement—at least among lawyers—that the First Amendment provided no help in answering them. Almost all litigators and law professors who weighed in the Great Deplatforming agreed that, while it raised difficult policy questions, it raised no serious First Amendment questions because the social media companies were private actors to whom the First Amendment did not apply. Jameel Jaffer, the Executive Director of the Knight First Amendment Institute at Columbia University, eloquently expressed this view when he tweeted that “The First Amendment question is easy. All the other questions are hard.”

The idea that the First Amendment was irrelevant here shocked many outside the law world. Republican politicians in particular continued to insist that the social media companies had violated the First Amendment when they banned the President because of his speech.

Read more at Law & Political Economy Project