By Sydney Shufelt
On October 12, 2018, the Supreme Court justices agreed to grant certiorari to a ruling made by the U.S. Court of Appeals of the Second Circuit inHalleck v. Manhattan Community Access Corp.[1] The court ruled that the private operator of a public access television channel is effectively a “state actor” (someone acting on behalf of the government), which in turn means the channel could be sued for violations of the First Amendment.[2] Such violations could include restricting which guests are given a platform to speak on a television show; how much time is given to each guest; whether rebuttal time is granted to an opposing viewpoint; and other common editorial decisions made by television programs.[3] If the Court agrees with the Second Circuit, the definition of what a state actor will be broadened and may eventually lead to the conclusion that social media platforms are public forums, which require strong First Amendment protections.[4]
If social media websites like YouTube are considered state actors, the removal of users such as Alex Jones from the platform could be considered a violation of his First Amendment rights to free speech.[5] Jones is a conspiracy theorist who has had videos as well as podcasts removed from Apple, YouTube, Spotify, and Facebook.[6] Some of his theories have included: claiming the Sandy Hook mass shooting was a product of a scheme created by gun-control advocates; that there is a scientific link between vaccinating your child and that child having autism; and that the U.S. government was involved in planning and executing the September 11thterrorist attacks.[7] With his removal, Jones lost access to millions of viewers and, with that, his AdSense revenue.[8] As it currently stands, YouTube is considered a private actor that may remove content from its website at its own discretion; however, this may soon change pending the Court’s decision in Halleck.
Similar questions have risen as to whether public officials, such as the President of the United States, may block citizens from viewing their Twitter account.[9] The U.S. District Court for the Eastern District of Virginia decided that public officials may not block constituents from their social media platforms.[10] Much of the court’s rationale stems from a Supreme Court decision in Packingham v. North Carolina, which decided that since social media sites are somewhat analogous to traditionally public spaces such as parks and streets, it is not unconstitutional for a state to have a statute making it a felony for registered sex offenders to access social media websites.[11]
The problem with ruling that a social media website is a public forum is that a platform’s terms of use could then violate the First Amendment by banning speech by people under the age of thirteen, speech of a convicted sex offender, or speech that is “misleading, malicious, or discriminatory,” as Facebook does.[12] Most of these reasonable restrictions used by private social media companies should be permissible under the law in order to protect their users from potential threat or harm. The most important difference between a social media platform and a public forum is that social media gets invited into our homes and allows for a greater opportunity for deception than one would find in a public square.[13] As such, the Second Circuit decision should be overturned and the Court should rule that a. privately-owned channel such as the Manhattan Community Access Corp. is not a public forum, and what makes up its content should be left to the discretion of the program’s private staff.[14]
[1]Amy Howe, Justices Take on One New Case,SCOTUS Blog (Oct. 12, 2018) https://www.scotusblog.com/2018/10/justices-take-on-one-new-case/ (noting that oral arguments are set to take place next month).
[2]Halleck v. Manhattan Cmty. Access Corp. 882 F.3d 300, 308 (2d Cir. 2018).
[3]Dan Kirkpatrick, Political Broadcasting Rules Q&A, Comm Law Blog (Feb. 27, 2018) https://www.commlawblog.com/2018/02/articles/deadlines/political-broadcasting-rules-qa/ (explaining the current state of political broadcasting rules provided by the FCC).
[4]Amy Howe, Justices Take on One New Case,SCOTUS Blog (Oct. 12, 2018) https://www.scotusblog.com/2018/10/justices-take-on-one-new-case/.
[5]S.M. Are Facebook and YouTube Quasi-Governmental Actors?, Democracy in America (Aug. 7, 2018)https://www.economist.com/democracy-in-america/2018/08/07/are-facebook-and-youtube-quasi-governmental-actors.
[6]Id.
[7]Id.
[8]Id.
[9]See Knight First Amendment Inst. At Columbia Univ. v. Trump, 302 F. Supp. 3d 541 (S.D.N.Y. 2018).
[10]See Davidson v. Loudoun County Board of Supervisors, No. 1:2016cv00932 (E.D. Va. 2017).
[11]See Packingham v. North Carolina, 137 S. Ct. 1730 (2017).
[12]SeeThomas Wheatley, Why Social Media is Not a Public Forum, The Washington Post (Aug. 4, 2017) https://www.washingtonpost.com/blogs/all-opinions-are-local/wp/2017/08/04/why-social-media-is-not-a-public forum/?noredirect=on&utm_term=.1a95ca888622.
[13]Id.(Stating that a scenario where a political leader had a public meeting in her private residence does not mean she has surrendered her right to exclusion).
[14]David Debold et al, Manhattan Community Access Corporation v. Halleck, CATO Institute (July 25, 2018) https://www.cato.org/publications/legal-briefs/manhattan-community-access-corporation-v-halleck (stating that Manhattan Community Access Corp. is a privately-owned company).
