A Supreme Court Decision Could Have Implications for Social Media Free Speech

The court ruled that First Amendment protections don't apply to a corporation that operates a public access channel in New York.
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One hundred life-sized cutouts of Facebook executive Mark Zuckerberg sit on the lawn of the United States Capitol on April 10th, 2018, in Washington, D.C.

One hundred life-sized cutouts of Facebook executive Mark Zuckerberg sit on the lawn of the United States Capitol on April 10th, 2018, in Washington, D.C.

The Supreme Court ruled on Monday that the First Amendment's protection of free speech does not apply to a non-profit that runs a public access cable television station in New York City.

In a 5–4 decision, split between the conservative and liberal justices, the court ruled that the Manhattan Neighborhood Network could not face lawsuits for deciding not to air content that criticized it. Two individuals had sued the corporation for removing their film, claiming that doing so violated their free speech rights.

Justice Brett Kavanaugh wrote on behalf of the majority that, while the First Amendment's free speech clause applies to "state actors" or governmental entities, the network is a private entity, not a state actor: "Providing some kind of forum for speech is not an activity that only governmental entities have traditionally performed," the decision reads. "Therefore, a private entity who provides a forum for speech is not transformed by that fact alone into a state actor."

Although this case does not deal with social media explicitly, it could have considerable implications for the regulation of free speech on such platforms. Sites like Facebook, Twitter, and YouTube provide forums for discussion, so if the First Amendment can't be enforced against a private entity that provides a public forum, that may also be applied to social media sites.

The issue of regulating speech on social media has arisen several times in recent months with regard to extremist views, bigotry, and violence appearing on such sites. Most recently, the shooting at a mosque in Christchurch, New Zealand, was live-streamed on Facebook. As Brianna Provenzano wrote for Pacific Standard in May, the leaders of New Zealand and France spearheaded the creation of a "Christchurch Call to Action," which describes steps that big technology companies can take to keep terrorist content from spreading on their platforms. But some have criticized the document for lacking specifics:

This vaguery, [Danny O'Brien, international director at the non-profit Electronic Frontier Foundation] suggests, means that there's likely a way of adopting the document without any threat of infringing upon freedom of speech rights. And while the White House's justification for opting out of the agreement isn't totally disingenuous—any U.S. administration talking about putting stronger controls on tech platforms would be inherently limited by the First Amendment—that argument hits a snag when it comes to the Trump administration's own domestic approach to bringing social media platforms to heel.

In their dissent, the Supreme Court's liberal justices maintained that First Amendment constraints should apply to the Manhattan Neighborhood Network: "By accepting that agency relationship, MNN stepped into the City's shoes and thus qualifies as a state actor," Justice Sonia Sotomayor wrote, "subject to the First Amendment like any other."

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