Misconstruing free speech, revisited

Back at the end of December ahead of the Christmas holiday, the country was polarized around the suspension of Phil Robertson from Duck Dynasty. I don’t care what side you took in that, but my concern was the fact that so many people took his suspension by a private organization to mean that everyone’s right to free speech was somehow in jeopardy. Let me restate that: a suspension by a private organization meant that everyone’s constitutionally guaranteed right to speech without infringement by the government was somehow in danger.

So why is Chelsea Handler basically alleging the same?

For those who aren’t aware, Chelsea Handler recently tried to post a topless photo to Instagram mimicking a photo featuring Vladimir Putin riding a horse shirtless. Now how anyone feels about women being topless is immaterial in this discussion. Instead what is material Handler’s response when Instagram removed the photo: “Taking this down is sexist. I have every right to show I have a better body than Putin.”

She attempted to repost the photo, saying “If instagram takes this down again, you’re saying Vladimir Putin Has more 1st amendment rights than me.” So let’s see if I have her position straight. A private organization removes from its service a picture determined to be in violation of its community guidelines, and she somehow has fewer First Amendment rights than the president of Russia?


For one, Instagram is a private organization owned by Facebook.  Under its terms of service is this: “You may not post violent, nude, partially nude, discriminatory, unlawful, infringing, hateful, pornographic or sexually suggestive photos or other content via the Service.” Now we can debate till the sun explodes whether a woman posing topless counts as “partially nude”, but most of the societies across the entire world agree that it qualifies, so online community guidelines tend to abide by those definitions.

Second, there are numerous other sites that will allow her to post a picture showing her topless riding a horse. Tumblr is one. Flickr might, depending on how they interpret obscenity. Imgur typically aggregates from reddit, and her picture would certainly be allowed on reddit as well. Many websites don’t, and each website has the right to determine what content they will allow, your free speech rights notwithstanding.

The service that hosts this blog has this as part of its terms of service: “You agree and warrant that Your Data shall not violate any Laws concerning obscenity and shall not contain or link to any pornography, or depictions of bestiality, rape, sexual assault, violence, torture or disfigurement, or other content deemed objectionable by 1&1, in its sole discretion.”

Most websites will not allow her to post such a picture. But there are some that will – again Tumblr is one.

Instagram is not violating her free speech rights, and Putin does not have any more of a right to free speech because a private company removes content hosted on its servers. Here’s the thing about the First Amendment: it only restricts the government from infringing upon your rights. You do not have the right to post whatever you want to someone else’s servers, whether it’s Instagram, Facebook, or what have you, and you only have the right to post whatever they deem allowable.

If you don’t like that, find a service that is a little more open, or start your own. Nothing is stopping you from doing so.