Facebook bans private gun sales: Public safety measure or violation of the First Amendment right to free speech?

February 2, 2016

Facebook is cracking down on online gun sales, announcing Friday a new policy than bans individuals from advertising or selling firearms on the social media platform. Facebook has long been a convenient platform for users to post advertisements in an effort to make product sales. Many Facebook users utilize the website to sell or trade everyday items such as bicycles, sports equipment, textbooks, and yes, even firearms. Facebook has been working to increase commerce on their website and hopes to see businesses transactions increase on the site overall. Last summer, Facebook expanded its digital payment services to allow Facebook users to make payments to one another, encouraging even more people to turn to the social media site for business. However, not all business exchanges are welcome.
In 2014, Facebook enacted one of its first policies restricting the sale of firearms by private citizens on Facebook. Facebook said it would block minors from seeing posts that advertised guns. This policy restricted only the audience of advertisements, still allowing the advertisements to be posted but monitored so as to ensure minors would not see them. At that time, however, private sales of firearms had not yet been prohibited and users could still discuss a sale using the website. The 2014 policy change centered on protecting minors and had not yet entered into the realm of a blanket prohibition on sales.
The most recent policy change, announced on Friday, January 29, purports to prohibit the sale of guns by private citizens all together. In the wake of increased illegal firearm sales, sparked through Facebook advertisements, the company decided the threat of such sales was dangerous enough to prohibit sales by private citizens entirely. This means that if a Facebook user wants to sell his gun, he cannot make a post describing the firearm as for sale and he must turn to a different platform to make the sale. Facebook has not, however, made any restrictions on advertisements by licensed firearm retailers. The policy aims to decrease illegal firearm sales, not legal, by the book dealers.
Users could not actually buy and sell firearms on Facebook, even before the new 2015 policy, but many users connected through Facebook to then make the sale in person. Federal Law enforcement agencies and Facebook believe that prohibiting any advertisement of private gun sales will limit illegal firearms sales and help to protect the public. There have been at least two cases in which private citizens used Facebook to connect with a firearms dealer, purchase a firearm illegally, and then kill someone. There is an obvious and significant interest in protecting the public from this type of illegal transaction and the often-horrific consequences such a sale. Many gun control activists praise the new policy as an appropriate response to a situation that made it very easy to skip a background check and purchase a firearm. The public safety concern is one of Facebook’s top priorities so as they enhance their sales and exchange capabilities, the company focuses on the impact the changes might have on public safety as well.

On the other hand, with out downplaying the important interest of public safety, this policy may be at odds with First Amendment protections of free speech.

Even prior to the policy, Facebook users could not make the actual sale on Facebook. Users merely advertised firearms, needing to move off of Facebook to make the actual sale. With the policy in effect, advertisements are now prohibited as well by private citizens. Licensed firearm dealers may still advertise the sale of guns. In effect, this policy is limiting and restricting the free speech of private citizens by prohibiting a certain topic of conversation – the sale of guns. The National Rifle Association has closely followed Facebook’s developments and has scrutinized the company for restricting free expression.
If this new policy is a violation of First Amendment freedom of expression rights, a balance must be struck between protecting public safety and promoting freedom of speech. Facebook recognizes the complexity of the issue and cited the need to balance free expression with public safety when it announced the 2014 policy change in a blog post.