What is the Contractual Basis for a Decision to Deplatform?

Facebook and Twitter’s recent decision to deplatform the former U.S. President has spurred ramifications beyond the expected political fallout and media noise. Many regulators are now engaging in serious discussion about the legalities surrounding social media platforms, their User Terms, and their power to moderate content.

Every social media user virtually enters into a contract when they create an account. By consenting to a platform’s User Terms, users have an obligation to abide by the platform’s policies. If a breach occurs, the non-breaching party may terminate the contract altogether.

If we look at deplatforming through the lens of contract law, Facebook and Twitter terminated the former President’s accounts on the grounds that he breached their contracts by violating policies.

Specifically, Twitter cited its “Glorification of Violence” policy as well as its “Civic Integrity” policy. In its announcement of the permanent suspension of @realDonaldTrump, Twitter stated, “After assessing the language in the Tweets against our Glorification of Violence policy, we have determined that these Tweets are in violation of the Glorification of Violence Policy and the user @realDonaldTrump should be immediately permanently suspended from the service.”

Similarly, Facebook concluded that Trump used his account to incite violence, placing a 24-hour block on his ability to post content on January 6, 2021.

Regulators must consider the broader, more complex questions that this controversy has shed light on. Are social media platforms private companies, or public forums for the free exchange of ideas? If the latter is true, does the First Amendment apply here? And, should these platforms moderate content in the first place? Do we really want matters of such gravity placed squarely in the hands of Mark Zuckerberg and Jack Dorsey?

Regardless of your politics, these are matters that bear incredible weight on our politics and society more broadly. These matters also put front and center the importance of contract terms and conditions, and how they can reflect the values of a company and its employees.