Can Twitter And Other Online Platforms Legally Moderate Content?

By Julian Oscar Alvarez, Litigation Department and Nathan M. Shaw, Corporate Department

In recent months, a growing number of commentators have suggested that an internet platform such as Twitter commits censorship when it chooses to remove content a user posts on one of its webpages, and/or bans that user.¹ These critics, which now include Supreme Court Justices Samuel Alito and Clarence Thomas, suggest that such content moderation might be illegal under the First Amendment.²

Although the First Amendment constrains the government from "abridging the freedom of speech,"³ private companies such as Twitter are not obligated to guarantee free speech on their platforms. In fact, courts have found that they enjoy their own constitutional rights, including free speech. Recent disclosures by Twitter that it was pressured by government agencies to withhold (or post) information are not the subject of this article, but raise questions about whether or not the government