A Supreme Court case over harassing content aired on public-access TV could lead to greater liability for Facebook Inc., Twitter Inc., and other social media for content on their sites.
The high court Feb. 25 is set to hear arguments centering on the extent to which private operators of public-access channels should be considered state actors—bound to respect free speech—under the First Amendment.
Manhattan Community Access Corp., an independent, nonprofit that operates four public-access channels in New York’s Manhattan borough, asked the court to weigh a U.S. Court of Appeals for the Second Circuit ruling that it can’t evade a free speech lawsuit brought by two producers because the channels it operates are constitutionally protected public forums.
The U.S. Chamber of Commerce, tech trade groups, and civil rights groups are worried that the ruling, if it stands, could have far-reaching impact beyond the accountability of TV channel operators. Namely, how would it affect social media, a space where free speech debates have erupted over government officials pulling critical posts off their pages?
A ruling by the high court with its conservative majority would likely be limited in scope, Ryan K. Cummings, who leads Hodgson Russ LLP’s media law and First Amendment practice in Buffalo, N.Y., told Bloomberg Law. But, he said, it could provide a roadmap for courts to determine whether a particular platform, including social media, qualifies as a public forum subject to the First Amendment.
The Manhattan Video
The high court case arose after two TV producers sued Manhattan for allegedly violating their free speech rights. The producers claimed Manhattan pulled their video after it aired because it contained harassing language against Manhattan. Manhattan says the video was pulled because it violated its harassment policy.
The Second Circuit, in letting the claims proceed, said such channels are public forums because Congress authorized them for public use, and a city official designated Manhattan to run them. The court deemed Manhattan a state actor subject to the First Amendment because it had a “sufficient connection to governmental authority.”
Manhattan, hoping to get the ruling overturned, argues that the Second Circuit assumed operators of public forums qualify as state actors regardless of the degree of government control over them or whether they perform functions traditionally reserved to the state.
Letting the ruling stand, Manhattan and the other groups argue, could sweep any company that operates an online space for public expression into the state actor category—if that space is deemed a public forum.
“The Second Circuit’s ruling threatens to blur the line between governmental and private conduct,” Manhattan said in its brief. If the ruling stands, courts would have scant guidance to determine the extent to which private entities, “especially those in new and changing media landscapes—are subject to the First Amendment,” it said.
Defining ‘Public Forum’
Such concern reflects the uncertainty over whether the First Amendment applies to the social media pages of government officials. Social media users, backed by the American Civil Liberties Union, are suing public school board members, county officials, state representatives, and state governors all over the country for allegedly blocking residents from posting on their accounts.
The U.S. Court of Appeals for the Fourth Circuit recently held that a Virginia county official violated free speech by banning a resident from posting on her Facebook page. Several district courts have also weighed in, finding that the comment sections of public officials’ Twitter accounts—including that of President Donald Trump—are constitutionally-protected public forums.
The rulings, however, have prompted questions about what role such platforms play regarding speech.
If the high court rules broadly that private companies are state actors, that could restrict the ability of internet platforms to remove hate speech or other objectional content, according to a brief filed by the Internet Association, whose members include Facebook and Alphabet Inc.'s Google. That, in turn, could lead to platforms discouraging users from engaging in expressive activity, it said.
“Internet Association merely asks the Court to make clear that any holding regarding public access channels cannot apply to Internet services, and any finding of state action in this case sheds no light on whether Internet companies are subject to constitutional scrutiny,” the group said in its brief.
But the producers insist the case doesn’t involve, and won’t impact, privately owned internet companies.
“Facebook and YouTube, for example, are not ‘public forums’ in the First Amendment sense,” they said in a reply brief filed with the court.
There are other business concerns as well. The Cato Institute, a libertarian Washington-based think tank, said the ruling, if it stands, could expose a broad range of companies to lawsuits for making editorial decisions about user-posted content.
The Chamber of Commerce, separately, said businesses would be forced to allow online speech they find objectionable in order to avoid being liable for infringing free speech rights.
Cozen O’Connor PC is representing Manhattan. Mayer Brown LLP is representing the producers.
The case is Manhattan Cmty Access Corp. v. Halleck, U.S., No. 17-1702, oral argument scheduled 2/25/19.
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