Though it now has many iterations, the original tweet about Twitter banning President Trump from LGBTQ activist John Smith (@JohnSmithChgo) succinctly summed up the situation as this: “Think of Twitter as a Christian bakery and Trump as a gay wedding cake.”
Over the last week, the viral tweet has spawned several variations expressing the same sentiment, but the message conveyed is like comparing apples to oranges — both fruits, but not the same kind of fruit. When social media users compare the Twitter ban to the Supreme Court case that allowed a bakery to refuse service to a gay couple, it’s a similar matter: These are both First Amendment issues, but they deal with two different aspects of the First Amendment.
The parallel is meant to be drawn between two private businesses that have the right to refuse someone service, because the First Amendment only prevents government from infringing upon First Amendment rights. But we’re discussing two different protected rights — freedom of religion and freedom of speech — and because of that, the wedding cake case has no bearing on the social media ban.
So, does Facebook’s, Twitter’s and YouTube’s suspension of Donald Trump’s accounts violate the president’s right to free speech? No. Why? Because the First Amendment protects free speech from being punished by the government, not a private company. And, the protection of free speech only means that you have the right to say it. You don’t have the right to profit from it or monetize it, and nowhere does it mandate any company to give you a platform for your speech, nor does it offer ubiquitous protection from the consequences of your speech.
In addition to that, every social media user agrees to Terms of Service before using a site. Granted, few of us ever read the entire document, but we are legally bound by the agreement. And Trump’s posts — across multiple platforms — were found to violate the Terms of Service and rules regarding hate speech, incitement to violence and spreading of misinformation.
We like this analogy from Twitter user Eric Crumrine (@ECrumrine): “Bar throwing a drunk patron out at the end of the night after they tried instigating a fight.”
An adult over the age of 21 has the legal right to drink alcohol, but he/she does not have the right to harm — or try to harm, or try to convince someone else to commit harm — anyone while under the influence of alcohol. It’s why we have the right to peaceful assembly, but not the legal right to riot.
And that has always been the challenge of defending First Amendment rights. Where is the line between one person’s entitlement to exercise their rights and another person’s entitlement to be protected from harm? It’s a question the courts still wrestle with and likely will for years to come. But in the meantime, it is within a private corporation’s ability to draw that line for its own business. And Twitter, Facebook and YouTube determined Trump crossed that line when his words encouraged his followers to attack the U.S. Capitol.