Since the advent of online discussion forums and the resulting need for forum moderators that can reign in unruly participants, there have been endless (if constitutionally ill-informed) debates in the US about free speech rights and their applicability to the internet. This particular debate has loomed ever larger as social media’s sudden dominance in politics, economics and ethics surprised even the gloomiest doomsayers in the past three years. Last year, the New York 2nd Circuit Court ruled that a public access TV channel had violated the 1st amendment rights of two producers who appeared to have been fired for criticizing their employer. The TV channel, Manhattan Neighborhood Network appealed to the Supreme Court who just earlier this week reversed the decision.
How does this apply to social media?
The details of the case at first don’t seem to apply at all to social media: MNN is a state mandated and funded public access network, an entity that most analysts agreed would appear to be subject to 1st Amendment jurisdiction. Social media platforms, on the other hand, are clearly not state-owned or operated nor is access to them mandated by any state or federal law. Surprisingly, the decision to reverse the 2nd Circuit ruling was led by the “conservatives” on the court, the exact opposite of what was expected by many conservatives pursuing free speech cases against YouTube and other media platforms for their alleged “anti-conservative bias.”
Instead, the majority opinion took a rather narrow view of public forum doctrine, stating that even though the creation and operation of MNN was mandated by the state, it is operated as a private company in a function that is NOT the exclusive domain of the state, much the same as every social media platform in existence. Just because a private entity (even one as big as Google/YouTube) allows everyone to post and participate does not turn it into a protected free speech zone. Justice Kavanaugh states in his conclusion:
“A private entity […] who opens its property for speech by others is not transformed by that fact alone into a state actor.”
While the court did not directly call out social media platforms in their decision, even the dissenting opinion, written by Justice Sotomayor, seems to leave little room for creative interpretation, and seems to be speaking directly to the heart of the matter:
“The First Amendment leaves a private store owner (or homeowner), for example, free to remove a customer (or dinner guest) for expressing unwanted views…. In these settings, there is no First Amendment right against viewpoint discrimination.”
Image courtesy of Stuart Miles from FreeDigitalPhotos.net
