On January 6, 2021, a mob stormed the United States Capitol. Within days, Twitter permanently banned the President of the United States. Facebook followed. Amazon Web Services pulled the plug on Parler, an entire social media platform, overnight. The most consequential speech decisions in modern American history were made not by courts, not by legislatures, but by corporations.

In Social Media and Democracy after the Capitol Riot, published in the Mercer Law Review, I examine what this means – not as a political question, but as a structural one. We have entrusted fundamental civil liberties to private companies whose obligations run to shareholders, not to democracy.

Platforms are not the government

The First Amendment prohibits government censorship. It says nothing about what private companies may do on their own property. When Twitter bans a user, it is not “censoring” in the constitutional sense. It is exercising editorial discretion – the same right a newspaper has to choose what it publishes.

This distinction is legally clear and widely misunderstood. Politicians on both sides routinely accuse social media companies of censorship. They are wrong as a matter of law. Platforms are private property. Their terms of service are contracts, not constitutions.

The deputization problem

But I identify a deeper structural concern. The federal government has effectively deputized social media corporations to moderate speech. Through a combination of regulatory pressure, threatened legislation, and informal jawboning, government officials push platforms to remove content that the government itself could not constitutionally suppress.

We have entrusted fundamental civil liberties to corporations with obligations only to shareholders, not to democracy.

This creates a constitutional end-run. The government cannot ban speech directly, so it pressures private intermediaries to do it instead. The platforms comply – not because they share the government’s values, but because they fear regulatory retaliation. The result is a system of private censorship operating under public pressure, with no constitutional accountability.

The giant goldfish

The subtitle – “A Cautionary Tale of the Giant Goldfish” – refers to the fable of a pet that outgrows its tank. Social media platforms were small enough, once, that their editorial choices did not matter to democracy. Now they are the primary channels of public discourse, and their choices about who speaks and who is silenced have consequences that rival government action.

The question is not whether platforms have the legal right to moderate content. They do. The question is whether a democracy can function when its most important speech channels are controlled by entities with no democratic accountability.

My answer is cautious: the current arrangement is unstable, and the law has not yet developed the tools to address it.

Read the full article: Social Media and Democracy after the Capitol Riot, 73 Mercer Law Review (2022).