How the Capital Riots Represent Social Media's Constitutional Dilemma

Ryan Silverstein, Feb 12, 2021

On January 8th, former President Donald Trump joined an exclusive list of people.  Among them: George Zimmerman, the man charged for the murder of Trayvon Martin; Milo Yiannopoulous, an alt-right political commentator; David Duke, the former Grand Wizard of the Ku Klux Klan; the American Nazi Party; and the now-former President of the United States, Donald Trump [1], whom Twitter suspended after he encouraged supporters to violently storm the Capitol on January 6th — an action which resulted in the death of five people and extensive damage to one of the most hallowed temples in democracy.


In its blog post which announced the permanent suspension of Trump’s account, Twitter called the Capitol insurrection “horrific” and argued that while the public benefits from hearing from their elected officials, the right for politicians to hold Twitter accounts is not “above” company policies that prohibit users for inciting violence. Like all people, the President must follow these rules [2].”


Immediately, right-wing groups and individuals began voicing their disdain for the permanent ban. Conservative talk show host Glenn Beck label ed this post-Trump Twitter era “the digital ghetto,” drawing connections to Nazi censorship and silencing of Jewish people in the Holocaust. Congressman Matt Gaetz, the Representative of Florida’s First District, Tweeted: “We cannot live in a world where Twitter’s terms of service are more important than the terms in our Constitution and Bill of Rights” [3].


But is Trump’s Twitter ban a violation of the First Amendment? And — if it isn’t — what precedent does this set for how social media platforms should conduct themselves?


After the ratification of the Constitution, the Founding Fathers felt it necessary to construct a new, more specific document that guaranteed certain inalienable rights to American citizens. This desire resulted in the creation of the Bill of Rights: a compilation of ten rules — or Amendments — which have become the backbone of American freedom.


Perhaps the most important of these rules (as signified by the Founders’ choice to write it first) is the First Amendment, which assigns five rights to Americans. The Bill of Rights reads:


“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances” [4].


While these rights seem clear, many of the amendments in the Bill of Rights have been subject to broad interpretations. This lack of clarity influenced much of the Supreme Court discourse throughout American History as Justices have tried to answer questions pertaining to the spread of false information and peaceful assembly that support hateful, extremist ideologies.


The issue of Trump’s Twitter ban lies within the questions that surround “freedom of speech.” As a social media platform with over 330 million users, powerful leaders, celebrities, musicians, and influencers can reach an astronomical amount of people in the matter of seconds. And, for much of the platform’s history, lots of the content posted went largely unnoticed, unflagged, and unchecked, giving a voice to conspiracy theorists and extremist viewpoints that previously had no platforms to gain traction.


The rise of QAnon, a right-wing extremist conspiracy group, is a result of this unfettered social media. QAnon’s beliefs have no factual basis. Included among their most outrageous theories is the notion that members of the Demogratic party run a global sex trafficking ring, that celebrities practice canibalism, and that the legitimacy of 9/11 and the Holocaust should be called into question [5].


These conspiracy theorists don’t just exist in dark subReddits or private Facebook groups — they now occupy the halls of Congress. Marjorie Taylor Green, who once called a Parkland shooting survivor scripted and a “dog,” represents Georgia’s 14th Congressional District. The consequences of unregulated social media are already happening [5].


Prior to social media platforms, the principal form of information sharing was best found in physical literature, namely books and newspapers. These forms of media — especially well-regarded journalistic companies like the Wall Street Journal and the New York Times — have comprehensive fact-checking standards that writers must oblige [6]. As a result, readers consume accurate information that helps to shape their worldview. While these media companies do occasionally report unfounded facts, they correct their mistakes openly, acknowledging errors  within articles and creating processes that proactively work against misinformation. 


Due to the magnitude of users, such standards become much more difficult to enforce on social media platforms. However, companies do take steps to combat the spread of “fake news.” One of these ways is the “terms of service” contract that all users agree to in order to activate their accounts. Twitter’s agreement gives itself the power to terminate accounts if they promote unlawful conduct. The agreement also gives Twitter the ability to ban accounts for no reason whatsoever [7].


Former President Trump’s conduct was unlawful and warranted a dramatic response from Twitter.


The United States government does not run social media platforms. Companies do. And so, when users agree to a platform’s terms and conditions — which act as their version of a constitution — they subject themselves to the jurisdiction of these platforms. Trump, like all other people, agreed to Twitter’s set of rules, which essentially gives Twitter the ultimate say in what can and cannot go online.


The issue here lies more in the immense power that social media companies hold in today’s environment. These companies have the ability to curate reality and arguable control thought for billions of people. The First Amendment is intended to protect people from infringements by the government.  Therefore, it is the job of Congress to write legislation that makes rules for social media content.  Since Congress has been slow to act on the growing power of these social media giants, these private companies get to determine these rules for themselves. Unlike elected officials who serve at the discretion of their constituents, social media companies have nobody to hold themselves accountable to. Thus, these corporations have more power — and consequently pose a greater danger — over the behavior of our nation as a whole.
Trump’s censorship was not unconstitutional. What it was, however, was an indication of the capacity of social media companies to censor and perhaps distort reality. But even though the internet and social media moves fast, the truth is catching up. The question is whether it’s too late.


1. “Twitter Suspensions.” Wikipedia. Wikimedia Foundation, February 12, 2021.

2. “Permanent Suspension of @RealDonaldTrump.” Twitter. Twitter. Accessed February 13, 2021.

3. “Glenn Beck Compares Social Media Bans to the Holocaust: 'This Is the Digital Ghetto'.” The Independent. Independent Digital News and Media, January 13, 2021.

4. “First Amendment.” Legal Information Institute. Legal Information Institute. Accessed February 13, 2021.

5. Gregorian, Dareh, Randi Richardson, and Alex Moe. “Marjorie Taylor Greene Mocked Parkland Survivor in Unearthed Video: An 'Idiot' Who's Trained 'like a Dog'.” NBCUniversal News Group, February 3, 2021.

6. “Ethical Journalism.” The New York Times. The New York Times, January 5, 2018.

7. “Twitter Terms of Service.” Twitter. Twitter. Accessed February 13, 2021.