Supreme Court To Hear Case That Could Possibly (But Not Really) Impact Social Media Content Moderation

from the not-going-to-happen dept

This week, the Supreme Court agreed to hear the appeal in a case called Manhattan Community Access Corp. v. Halleck, which some are arguing could have a major impact on whether or not social media sites are barred from moderating content because they're quasi state actors and the 1st Amendment blocks them from moderating content.

Let's be clear on this: while something could go completely wacky and sideways (it is 2018, after all) the chances of this ruling directly impacting social media platforms is very, very, very, very, very, very, very small. That does not mean whatever ruling won't be cited by various plaintiffs to make bizarre arguments -- as we've seen repeatedly with people misinterpreting the Packingham decision. However, given both the facts of this case, and the way the Supreme Court works, I would be shocked if this ruling has any significant impact at all.

This case involves a public access channel, Manhattan Neighborhood Network, where two producers -- DeeDee Halleck and Jesus Melendez -- were apparently fired for making critical comments about the network. They sued, claiming their First Amendment rights were violated, because the city and the network -- as a state actor -- were punishing them based on the content of their speech. The city has been dismissed from the case as it has basically nothing to do with any of this. The question at issue is whether or not this public access channel is a "traditional public forum," in which even a private operator can be judged to be a de facto representative of the government and subject to the limits on the state -- such as the First Amendments ban on suppression of speech.

While the lower court sided with the network, the 2nd Circuit reversed, deciding that this particular public access channel represented a public forum. MNN warns, in its petition for cert that if allowed to stand, this ruling could be used to go after social media sites as public forums.

Courts are routinely faced with the state actor conundrum in new contexts. For example, a New York district court recently had to rule on whether part of President Trump’s Twitter account is a constitutional public forum. See Knight First Amendment Inst. at Columbia Univ. v. Trump, No. 17-cv-5205, 2018 WL 2327290, at *5 (S.D.N.Y. May 23, 2018). There, the court held that a portion of the President’s Twitter account— but not Twitter itself—was a constitutional public forum because the government controlled the content of the tweets sent from the President’s account. Id. at *15. See also Davison v. Plowman, 247 F. Supp. 3d 767, 776 (E.D. Va. 2017) (holding that a municipal county’s Facebook page was a “limited public forum”).

Twitter, YouTube, Facebook, and Instagram are all popular social media venues used for sharing political opinion. And, though they are all privately owned and operated, they are subject to numerous federal and state laws, exist because the government created the Internet, and are utilized by all levels of government. But applying the traditional state actor analysis should still lead to the conclusion that these entities and their employees are not state actors. See, e.g., Prager Univ. v. Google LLC, No. 17- cv-06064, 2018 WL 1471939, at *8 (N.D. Cal. Mar. 26, 2018) (dismissing First Amendment claims against YouTube and Google); Shulman v. Facebook.com, No. 17-cv-00764, 2017 WL 5129885, at *4 (D.N.J. Nov. 6, 2017) (Facebook not constitutional state actor). Under the new test announced by the Majority, it is not so clear that these entities are divorced from state action.

While I'm not against the Supreme Court clarifying that this is not accurate, it would be a pretty amazing stretch for courts to read the 2nd Circuit's ruling in a way that leads to this result. As we discussed in our post about the ruling in the Knight 1st Amendment Center's case against Donald Trump for blocking people on his Twitter feed, there's a big difference in a general "public forum" and a "designated public forum" which is limited to just a specific area that the government itself has created and has control over. Just as that case was limited very specifically to followers of Trump (as opposed to Twitter users in general), the 2nd Circuit's ruling in this case appears pretty clearly limited to the facts of this case, where the government made it clear that it wanted this public access channel to be a general public forum. A key issue here, as laid out in the brief of the fired producers is that the NY government specifically created this particular forum:

New York City created the public access channels: New York State obligates municipalities to compel the creation of public access channels, and New York City fulfilled that obligation in the requirements it has imposed on cable franchisees in New York.

That is, quite clearly, not true of internet social networks. Indeed, the lawyers for the fired producers argued that the network and its lawyers appear to be a bit confused about the difference between a general public forum and a limited designated public forum:

First, as we have already explained, petitioners are wrong to assert that the court of appeals established a per se rule that governs all public access stations. See pp. 13-20, supra. Petitioners’ analysis conflates the “traditional public forum” analysis (which often does establish bright-line rules) with the “designated public forum” doctrine (which does not). Because the decision below is specific to the particular “framework” (Pet. App. 13a) that governs New York City, it has no implications for localities that have made different choices.

Second, petitioners lose sight of the fundamental principle that only the government may designate a non-traditional place as a public forum. That is, for “a place not traditionally open to assembly and debate,” it is a “public forum” only if “a government intended to designate” it as such. Walker, 135 S. Ct. at 2250 (quotation and alteration omitted). See also Arkansas Educ. Television, 523 U.S. at 677 (“Designated public fora * * * are created by purposeful governmental action.”). A place cannot be designated a public forum absent intentional government action.

So, that really seems like it would limit the impact of any such ruling in this case to apply more broadly to the content moderation choices of internet platforms. I have no problem with the Supreme Court taking this case, and hope that they do clarify what counts as a state actor in public forums -- especially in limiting it to true state actors.

But I would be absolutely shocked if the Court really rules in any way in this case that will impact social media platforms, because it's such a stretch to read the lower court ruling that way. My guess is that -- as it often does -- the Supreme Court will seek to rule narrowly and won't even address the issues regarding private social media platforms. One hopes that they will be careful enough not to leave a few stray sentences and arguments that might be spun around by various people to argue it means that internet platforms cannot moderate content at all. But, given the way so many people have been trying to turn the Packingham ruling into something it is not (ditto for the Pruneyard case about malls as public forums -- which is a very limited ruling, but is regularly cited by people who don't understand it). So, it would be nice if the Supreme Court makes a clear ruling that prevents such abusive claims outright, but I'm guessing the ruling will be much more narrow and will have no clear impact on social media platforms, which basically everyone recognizes are not "state actors" and have every right to moderate their own platforms however they would like.

Filed Under: 1st amendment, content moderation, deedee halleck, jesus melendez, manhattan neighborhood network, public access, public forum, social media, supreme court
Companies: manhattan community access