Free Speech Issues Abound After Capitol Hill Riot
Published January 2021
The riot at the Capitol building on Jan. 6 and its aftermath have raised several serious concerns about American politics and society. These events also raise several questions and dilemmas regarding First Amendment law and freedom of speech generally.
Social Media Bans: In the aftermath of the events in Washington, various social media platforms at first suspended and then terminated President Trump’s accounts. They also terminated accounts of several groups and individuals who participated, encouraged and/or celebrated the unrest. In the non-digital realm, Simon & Shuster announced that it would not publish a book by Sen. Josh Hawley because of his support for Trump and the protesters. Some claimed that these actions violated the First Amendment, but that’s incorrect.
The First Amendment only applies to government entities limiting free speech; it does not apply to private companies, including social media companies. Legally, these companies are free to exclude particular users for any reason, or for no reason at all, as long as the platforms follow their terms of service, which—despite the fact that users usually don’t read them—are legally binding contracts. Social media platforms are not “places of public accommodation” under the law, which are not allowed to discriminate on the basis of race, gender and other characteristics protected by civil rights laws. People may have the right under the First Amendment to express odious, offensive and anti-government views, but they do not have the right to do so on a particular privately-owned platform.
The same is true of Google and Apple removing the app for Parler—a freewheeling social media platform that many Trump supporters use as an alternative to Facebook and other platforms that they claim are biased against them—from their app stores, and of Amazon removing the service from its servers, which shut Parler down. Again, the First Amendment again has nothing to say about this, since there are private actors, not the government. Parler may be able to sue Amazon for breaching their contract, but it would be surprising if that contract did not give Amazon the ability to shut off the hosting under certain circumstances.
This does point out how much power these social media and web hosting companies have over not only what we can see and hear, but also perhaps what we can say. Some people are legitimately concerned that this puts too much power in the hands of a few unelected and unaccountable people. But that has always been true to a greater or lesser extent. As A. J. Liebling wrote jn 1960, “Freedom of the press is guaranteed only to those who own one.” Trump supporters still have the legal right to say (almost) whatever they want (see the next section). They just don’t have the legal right to use the megaphones that social media sites provide to say it.
“Sedition” and “Incitement”: There have been several calls for the individuals involved in the events in Washington and for those who encouraged them—including, some say, President Trump—to be charged with “sedition.” Federal law makes it a crime for “two or more persons in any State or Territory, or in any place subject to the jurisdiction of the United States [to] conspire to overthrow, put down, or to destroy by force the Government of the United States, or to levy war against them, or to oppose by force the authority thereof, or by force to prevent, hinder, or delay the execution of any law of the United States, or by force to seize, take, or possess any property of the United States contrary to the authority thereof …” Violators can be fined and/or imprisoned for up to 20 years.
But there can be a fine line between expressing opposition to the government and its policies, even in strong, vociferous language, and actively trying to undermine it. “Sedition” also has a troubling history: Throughout American history, sedition laws have often been used against unpopular opinions, rather than statements actually aimed at undermining the government. Thus individuals and groups have been prosecuted for such “seditious” activities such as criticizing President John Adams and his party in the 1790s; advocating the abolition of slavery prior to the Civil War; opposing American involvement in World War I; advocating political ideologies such as socialism and communism; and advocating for civil rights, the latter in cases that generally rejected such prosecutions.
There are also laws against inciting others to commit crimes and violent acts. But the U.S. Supreme Court has held that prosecutions under such laws are limited to situations in which the speaker made clear, unequivocal statements that were likely to result in an immediate, illegal reaction: what the court called “imminent lawless action.” Some of the rhetoric on Jan. 6 may meet this standard, but it is a high standard to meet.
Media Content as Evidence: The events of Jan. 6 were widely photographed, by traditional journalists, by bystanders and also by the rioters themselves, who shot photos and video of themselves and their fellow marchers and rioters outside and inside the Capitol. In the aftermath, federal and state authorities began using these photos to identify and arrest some of the rioters.
There is no First Amendment issue with law enforcement using photos and videos published by the media and on social media for this purpose. If the photos were taken a public locations, such as the Capitol buildings and grounds, those shown in the photos have no reasonable expectation of privacy that is legally enforceable. And if the photos are available publicly, they are fair game for law enforcement to use. This is true even for photos and video posted on “private” social media pages, or those that limit access: courts have consistently held that there is no right of privacy for material posted online, no matter the access controls. Most social media sites’ terms of service also do not guarantee privacy for posted material, and the sites explicitly state that they will assist law enforcement in most circumstances. (Note that while law enforcement may be able to use such photos, that does not mean that publications and websites can use and republish photos found online without permission; doing so is likely a copyright violation.)
But there could be a problem if the authorities were to seek photos and video taken by the media that have not been published publicly. Journalists generally think it’s a bad idea to cooperate with such requests, since it may impede their newsgathering if people think that the media are cooperating too much with the government. Photojournalists get some protection from having to disclose unpublished materials under state reporters’ shield laws, but the level of protection varies. (This was shown in a dispute over photos of Seattle protests last year.) At the federal level—which is most relevant here, since many of the alleged crimes at the Capitol would likely be federal crimes—journalists get only limited protection, because of a U.S. Supreme Court ruling rejecting such a privilege on the issue based on the First Amendment and the absence of a federal shield law for reporters. Despite this, some federal appeals court decisions, a federal statute and Department of Justice regulations provide that law enforcement can obtain unpublished material only as a last resort, when the evidence is not available from any other source.
Physical Assaults on the Press: As they stormed the Capitol, the rioters also threatened and actually attacked several members of the news media, and in some cases damaged or destroyed their equipment. Of course, these can be criminal acts, and can be prosecuted along with the other crimes that occurred in the melee. But attacks on media are problematic for a number of reasons, and often show disregard for the First Amendment rights and free speech principles that some of the participants claimed that they were supporting.
Eric P. Robinson focuses on media and internet law as assistant professor at the USC School of Journalism and Mass Communication and Of Counsel to Fenno Law in Charleston / Mount Pleasant. He has worked in media law for more than 20 years and is admitted to legal practice in New York and New Jersey and before the U.S. Supreme Court. This column is for educational purposes only; it does not constitute legal advice. Any opinions are his own, not necessarily those of his employers.