Free Expression or Protected Speech? Looking for the Concept of State Action in News

The terms free expression and protected speech are fundamentally different under the law. The constitutional guarantee of freedom of speech exists only in cases of state action. Considered one of the most important yet often least understood aspect of the First Amendment, the state action concept is pivotal in the age of the internet, where limits on speech have increasingly come from private entities instead of the government. Edge providers and social media platforms have taken to outright bans of online conduct and speech that would otherwise be protected from governmental intervention under the First Amendment. This article examines the extent to which the state action requirement is discussed in press coverage of the ban of the conservative media outlet Infowars and host Alex Jones from multiple social media and internet platforms. The study, which employs a content analysis of three national newspapers and one large metropolitan daily newspaper, finds that the concept of state action is rarely discussed in news and opinion coverage of Jones’s removal from social media. This is true even in cases when sources— including Jones—falsely asserted that social media outlets were trammeling users’ First Amendment rights. The findings have important implications for public understanding of the First Amendment, journalistic practice, and calls for governmental regulation of social media platforms.