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Abstract

Social media has become one of the biggest mediums by which people communicate, socialize, and interact with each other. People follow political figures, cultural icons, and news outlets, among others, to gain knowledge on current events or the hot topic of the day. Many users, regardless of the platform, use their medium of choice to speak their own opinions and comment on the world’s issues. From prime ministers to popular memes, social media is a never-ending timeline of speech. With the constant speech and expression exhibited on social media, two important questions must be asked. First, does the First Amendment protect social media posts? Second, if it does, do private social media companies have the right to censor or moderate what is posted?

While the United States Supreme Court has yet to directly address these intertwined questions, there are several cases that can serve as a legal framework to help the Court answer these inevitable questions. While an exhaustive survey of First Amendment jurisprudence is beyond the scope of this Note, several seminal cases will be discussed and analyzed. Together, these cases demonstrate that, in order for First Amendment protection to attach to social media posts, one of three things is required: (1) the social media company must be carrying out a function traditionally performed by the government, (2) the social media company must be compelled by the government to act, or (3) the social media company must be in collaboration with the government. Once one of these grounds is met, the traditional Free Speech analysis may be performed. However, recent litigation and legislative enactments may have altered the way courts view the relation the First Amendment’s applicability to social media.

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