August 17, 2017

Brent Skorup’s Comments on ISPs and First Amendment Rights

Brent Skorup

Senior Research Fellow

For years, Apple, Twitter, Facebook, Google, and other tech companies have pulled down, rejected, or demoted user content that contains nudity or harassing, extremist, and other offensive content. Many Internet service providers likewise offer “clean” Internet access to children and discerning families. In light of recent violent protests, many tech and Internet companies are reevaluating their policies about whether to host, display, or transmit offensive content posted by Internet users.

These companies—much like a bookstore or a cable TV operator—have a First Amendment right to police, moderate, and reject content that they do not wish to be associated with. As one federal district court has noted, “Liberty of circulating is not confined to newspapers and periodicals, pamphlets and leaflets, but also to delivery of information by means of fiber optics, microprocessors and cable.” In fact, Congress passed Section 230 of the Communications Decency Act to encourage Internet service providers, search engines, and websites to moderate online content.

Recent events will stimulate important debates about the wisdom of private censorship by the tech industry and the nature of the open Internet. However, the First Amendment protects against government regulation of speech and the press. There is generally no constitutional problem when tech companies reject content from users on their private networks and platforms.