By James Lake
It was 1974. The internet had not been invented. Phones were used for phone calls and nothing more. A “tweet” was a noise a bird made. And the U.S. Supreme Court issued an opinion that tells us Twitter was within its rights to ban tweets by Donald Trump.
The Supreme Court’s case began in Florida, where the Miami Herald decided to publish editorials critical of a candidate for the Florida Legislature. The newspaper accused Pat Tornillo of “kicking the public shin” and of “shakedown statesmanship.” Electing Tornillo, the Herald said, would be “inexcusable.” Tornillo sent the Herald replies and demanded the newspaper publish them. Tornillo cited an obscure Florida Statute that claimed to give political candidates a right of reply. If a newspaper criticized a candidate’s personal character or official record, the statute said, the candidate had a right to demand that the newspaper print the candidate’s reply to the criticism. When the Herald refused to publish the replies, Tornillo sued the newspaper.
The U.S. Supreme Court – including six justices appointed by Republican presidents – unanimously rejected Tornillo’s demand. “The choice of material to go into a newspaper,” the Court explained, “constitute[s] the exercise of editorial control and judgment. It has yet to be demonstrated how governmental regulation of this crucial process can be exercised consistent with the First Amendment guarantees of a free press.” Miami Herald Publ’g Co. v. Tornillo, 418 U.S. 241, 258 (1974). The Florida Statute’s requirement that the Herald print Tornillo’s submission, the Court concluded, violated the Herald’s First Amendment right to editorial control over its content.
The freedom the Tornillo decision recognized also protects Twitter, Facebook, Instagram, and any other publisher that decides not to share another person’s speech. The choice of material that goes onto Twitter’s platform belongs to Twitter – not Trump, not Congress and not the courts.
“The choice of material that goes onto Twitter’s platform belongs to Twitter – not Trump, not Congress and not the courts.”
What about Section 230, a federal statute that addresses content on social media and websites? A statute cannot change the First Amendment. And that statute doesn’t. Section 230 generally gives Internet companies a defense against lawsuits challenging content that users create and submit. For example, Section 230 would require a court to dismiss a lawsuit against Twitter by Dominion Voting Systems objecting to tweets by pro-Trump lawyers. Dominion could sue the lawyers, Section 230 says, but not Twitter.
But Section 230 does not require Twitter to publish those tweets in the first place. Under Section 230 and the Tornillo decision, Twitter is free to accept those tweets or reject them.
Critics of Twitter complain that’s unfair, that social media platforms should be open for all. The First Amendment says otherwise, that government can’t force Twitter to accept every tweet. Freedom of speech belongs to everyone – even Internet companies. Those who don’t like Twitter’s rules or decisions are free to use other Internet platforms, to create their own websites, to start text message groups, to send mass emails, to place newspaper ads, or to buy radio or television time. But they don’t have legal grounds to compel private companies to share their speech.