Supreme Court to Hear Free Speech Case that May Impact Technology Companies and Social Media Platforms

The Supreme Court just announced that it will hear a case defining what is, or is not, a public forum. While the case specifically addresses public access cable channels, the Court’s decision may reverberate across the technology community.

The case, entitled Manhattan Community Access Corp. v. Halleck involves a public access cable channel. The petitioners in the case asked the Supreme Court to answer “an important—and unsettled—recurring question… Under what circumstances can a private entity… be deemed a state actor subject to claims under the First Amendment?”

The Constitution limits government authority. It does not apply to private companies. Some, though, insist on applying various Constitutional provisions, notably the First Amendment, to private actors such as Google, Facebook, and Twitter, among other technology companies.

The direction the Supreme Court takes the Manhattan case will help define the limits of this type of argument. If the Court agrees with the Sixth and D.C. Circuit Courts of Appeal, the definition of a “state actor” – or government actor – will be narrow and apply only in very limited circumstances. If the Court agrees with the Second Circuit, effectively overruling the Sixth and D.C. Circuit Courts, the definition of state actor will be broad and may provide an attack for those who argue that social media platforms are public forums.

According to the background facts and regulations in the Manhattan case, public access cable channels form when localities require private cable operators to set aside certain channels as a condition for accessing infrastructure. The private providers often establish nonprofit entities to run the channels. Sometimes the locality has the ability to name a board member or two, but generally, the state and local governments do not control the nonprofit.

In the Manhattan case, the petitioner receives no funding from the locality and the Manhattan Borough President may choose “only two of the thirteen or more members” of the board. In other words, neither the State of New York nor the Borough of Manhattan control the public access cable channel.

The respondents produced a program “which included harassing and threatening language directed toward” the staff of the public access channel. The respondents produced the program in response to disciplinary actions the channel took against them previously. After the channel aired the program with “harassing and threatening language” it received complaints and barred further airings of the program.

The respondents sued alleging that the public access channel discriminated against them on the basis of viewpoint, contrary to the U.S. and New York Constitutions. The district court dismissed the action, finding that the channel is a private actor, not subject to First Amendment liability. The Second Circuit Court of Appeals reversed, ignoring decades of Supreme Court precedent, reinstating the lawsuit against the public access channel.

The Second Circuit, according to the petition for writ of certiorari—the request for the Supreme Court to review the case—argues that the Second Circuit completely ignored Supreme Court precedent as well as how other circuits applied Supreme Court tests.

This will be an interesting case to follow as the parties brief the Court, the Court hears the case, and then decides the case. Whether pundits can continue to argue in good faith that private technology platforms should be subject to the First Amendment will depend on the Court’s decision.

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