Social Media Deplatforming

Social media platforms have drawn controversy for their practice of permanently deactivating user accounts, including that of a sitting President of the United States. Although the platform companies point to content that they determine to be violent or misleading as a justification for their “deplatforming” decisions, critics claim that these companies perform a public function and should be required to serve everyone on equal terms.

But in a forthcoming article, Ganesh Sitaraman, a professor at the Vanderbilt University Law School, explains that social media companies have been removing users largely in accordance with well-established exceptions to U.S. law’s typical requirement that public-facing companies serve everyone on equal terms.

Sitaraman reviews the history of deplatforming by networks, platforms, and utilities—or what he terms NPUs. In highly regulated sectors, such as communications, transportation, energy, and banking, companies have historically been subject to a duty to serve all comers because of their crucial services to society.  But Sitaraman also demonstrates that “reasonable deplatforming” has historically been permitted in limited circumstances.

Sitaraman surveys the various reasons that NPUs have been allowed to deplatform. These include service provision issues, such as failure to pay or capacity constraints, potential harm to customers or society, and reasons related to other social goals, such as with broadcast content moderation.

Railroads and airlines, for example, are generally required to serve all comers on an equal basis, but they are also permitted to exclude dangerous riders and illegal items. Sitaraman notes that these exceptions are based on the risk of harm to the railroad service and to other riders.

Similarly, Sitaraman explains that a duty to serve has been imposed on many communications services. These include the U.S. Postal Service, telegraph and telephone companies, and broadcast media. He notes that in the communications context, the duty to serve is usually rooted in free speech principles, but exceptions are often based on social goals. Broadcasters, for example, are restricted from transmitting obscene content, particularly to children.

Deplatforming to achieve social goals has led to regrettable moments in American history, acknowledges Sitaraman. Public facilities were once permitted—and sometimes required—to exclude racial minorities to achieve the goal of racial segregation.

But just as civil rights laws now prohibit restrictions on access to public facilities based on race, the law can place other limitations on NPU deplatforming practices, Sitaraman notes. For example, Massachusetts forbids energy companies from cutting off electricity to customers during the bitterly cold winter months, even if a customer has repeatedly failed to pay for the service.

Sitaraman explains that the law can also serve as a source of deplatforming authority—that is, deplatforming is sometimes required by law. Airlines, for instance, are forbidden from allowing customers on planes if they refuse a security screening by the Transportation Security Administration.

Deplatforming is employed most often by private entities and permitted by courts if reasonable. As early as the eighteenth century, for example, taverns were permitted to refuse service to dangerous people to ensure the safety of their businesses and their customers, notes Sitaraman.

Over time, private actors began to make additional, proactive rules for when they can refuse service to the public. Terms of service, for example, set the conditions under which users or content can be excluded.

Some scholars argue that the terms of service written by social media platforms mean that they are not open to all comers and cannot be subject to a duty to serve everyone. But Sitaraman responds that the historical record demonstrates this argument to be wrong. NPUs have created terms of service since the 18th century yet have still been subject to a duty to serve.

Sitaraman explains, however, that social media companies have been deplatforming users for reasons that conform to historical norms. Imposing a duty to serve on these companies would not prevent the deplatforming that has recently made headlines, he argues.

Sitaraman does not argue for or against requiring social media companies to serve all comers. But he does provide relevant historical context in case such a duty were to be imposed on these digital platforms. He notes that critics of deplatforming might feel comforted by the fact that, historically, NPUs were not permitted to reject service to customers based on political or religious beliefs.

Regardless of whether social media companies have a duty to serve everyone, Sitaraman argues that these companies should be able to deplatform users if their contributions became harmful, incited violence, or spread obscenity. He cites Twitter’s removal of President Trump’s account after determining that the President used the platform to incite the January 6th insurrection. This example, though controversial, accords with historical standards for exclusion, Sitaraman argues.

Sitaraman explains, however, that some of the reasons for deplatforming might not apply to social media companies. The existential threats in the transportation context that justify expansive deplatforming, such as the threat of weapons on airplanes, are not present in the social media context.

Finally, since private companies generally are not constrained by the Constitution, Sitaraman concludes that social media deplatforming is not subject to limitations based on the First Amendment, which only applies to governmental actors.