WASHINGTON (Sinclair Broadcast Group) — The Supreme Court is preparing to hear arguments in a dispute over content restrictions and personnel decisions at a New York public access channel that has the potential to determine whether social media companies like Facebook and Twitter can censor their users’ content.
“It could go a thousand different directions if the door gets opened up that way,” said Eric Goldman, director of the High Tech Law Institute at Santa Clara University.
The Supreme Court announced Friday it would take up the case, Manhattan Community Access Corp. v. Halleck, grappling with the circumstances under which private companies become “state actors” subject to constitutional liability under the First Amendment.
Manhattan Neighborhood Network, a private nonprofit organization, was designated by the Manhattan borough president to operate a public access channel with no funding from the city. The borough can select two of MNN’s 13 board members, but it has no direct control over the network.
DeeDee Halleck and Jesus Papoleto Melendez were producers who made content for MNN’s stations. Melendez got into an altercation with an MNN employee during a board meeting in December 2011. Months later, Melendez scuffled with that employee’s boyfriend while interviewing people outside a formal event at a community center.
After security intervened, Melendez commented to the camera, “Our people, people of color, are in control of this building and I have to wait until they are fired, or they retire, or someone kills them so that I can come here and have access to the facility here.”
Melendez and Halleck produced a video including those comments, titled "The 1% Visits El Barrio; Whose Community?," which aired once on MNN before it was banned from the network. Halleck was suspended from submitting any content for a year and Melendez was permanently barred. MNN claimed the video violated its harassment policy, but the producers believe the station just disapproved of their critical message.
Melendez and Halleck sued, alleging that their First Amendment rights had been violated. Finding that MNN is a private company rather than a “state actor” subject to constitutional liability, a district court dismissed the case.
However, the Second Circuit Court of Appeals overturned that ruling, asserting that MNN is a public forum with sufficient connection to a government entity to be considered a state actor because it was designated to run the station by the borough president. MNN appealed to the Supreme Court, claiming the appellate judges applied the wrong standard to determine that it was a state actor.
What does any of this have to do with social media? Possibly nothing, possibly a whole lot.
“There certainly is the possibility that what the court says here could apply in a different context,” said David Greene, senior staff attorney and civil liberties director for the Electronic Frontier Foundation. “Cable public access is a different thingbut what the court says about privately-run media and when those are state actors, that very generally could have very profound applications to lots of platforms.”
Beyond arguing the lower court used the wrong standard, attorneys for MNN warn of far-reaching ramifications that could threaten the existence of popular social media platforms.
“The decision below threatens to erode the protections that this court has put in place for the last half century to ensure that only the rarest of private entities are subject to constitutional scrutiny,” their petition states, adding that the issue is even more important due to “the current landscape of new and evolving technology.”
MNN points to a recent district court ruling that determined part of President Trump’s Twitter account is a constitutional public forum, but not that Twitter itself is. Questions could be raised about whether other social media venues used for sharing political opinion are state actors.
“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,” the petition states.
The defendants dismiss portents of social media apocalypse as “fairytale monsters” that can be addressed separately if or when they ever arise.
“Social media is nothing like petitioner MNN,” their response states. “The government did not create social media services like Twitter. The government does not impose first-come, first-served access rules on Twitter, mandate that it be free of charge, or preclude Twitter from exercising editorial control.”
Goldman said MNN’s concerns about the impact of the ruling on the internet are a bit of a stretch but not entirely unreasonable. He observed the Supreme Court determined in 1997 that standards applied to television and the internet communication do not have to be the same.
“The court made it clear cable TV was technologically different from the internet, and therefore, there could be different rules between the two of them,” he said.
If the courts do eventually conclude sites like Twitter and Facebook are state actors, experts say it could completely decimate them.
“I can’t even contemplate what that would mean because it would change everything we know about social media,” Goldman said. “Almost certainly, social media would become useless as a tool and everyone would take their time and attention somewhere else.”
Users often complain about what material social media platforms remove and what they allow. Declaring them state actors would make problems with offensive speech much worse.
“Most immediately, it would sharply limit their ability to moderate and curate the content on their sites,” Greene said. “We have a lot of problems with how badly social media platforms and larger platforms do that now, but we think they have a right to do so.”
According to Berin Szoka, president of TechFreedom, it would be “hugely problematic” for internet companies to have to justify every content decision they made on First Amendment grounds.
“This is part of the complexity of this issue. Social media services only work because the companies that operate them have had broad discretion under Section 230 [of the Communications Decency Act] to moderate content,” he said.
In an amicus brief, the libertarian Cato Institute raised a broader concern that internet service providers themselves could face new legal liability as a result of this ruling.
“These criteria are broad enough to ensnare nearly any entity that partners with a government body to run a service made available to the public,” the organization’s attorneys argue.
Internet service providers often partner with local governments to increase broadband access, but declaring them state actors as a result of offering that service would make such deals far less appealing.
“This court should be loath to let stand a rule that potentially unleashes Section 1983 liability on private actors as the payoff for working alongside municipal or state governments to deliver internet access to communities in need,” the brief states. “Nor should these providers be put to the Hobson’s choice of being forced to deliver objectionable content or no content at all.”
According to Greene, the appellate court’s definition of a state actor could wind up being applied even more widely if it stands.
“There’s lots of interactions in the digital environment either partnered with the government or doing things people think should be considered governmental,” he said.
Whatever the Supreme Court does after it hears arguments early next year, experts doubt it will put all these questions to rest. A finding in favor of the defendants would more likely be limited to the facts of the case rather than establishing some universal principle.
“I would hope the court would actually do something very narrow. That’s the court’s inclination,” Greene said.
Ilya Shapiro, a senior fellow at the Cato Institute, expects a narrow ruling as well, but he would like the court to provide some clarity on the underlying questions at stake.
“What I really want to see from the court is a cleaner delineation of public or state action and private action in all spheres,” he said. “What transforms an otherwise private entity into a state actor is a very important area of law generally.”
The MNN case was the first accepted by the high court after the swearing-in of Justice Brett Kavanaugh. It is unclear how his presence on the court rather than that of his predecessor, Justice Anthony Kennedy, will influence a case like this.
“Kavanaugh had his dissent in the net neutrality case where he talked about the First Amendment rights of internet providers. That may have some relevance,” Shapiro said.
If this case only skirts the issue of censorship and social media, it may still come to a head soon in one way or another. Republicans on the internet, in Congress, and in the White House continue to claim Facebook, Google, and Twitter are politically biased institutions intent on censoring conservative beliefs.
“Google & others are suppressing voices of Conservatives and hiding information and news that is good. They are controlling what we can & cannot see. This is a very serious situation-will be addressed!” President Trump tweeted in August.
Tech executives have repeatedly denied any political agenda in congressional testimony, but the Justice Department has taken an interest in the issue and some on right have alleged the companies’ policies violate antitrust laws.
Attorney General Jeff Sessions and other top federal officials met with representatives from the offices of 14 state attorneys general in late September to discuss “ways the Department and state governments can most effectively safeguard consumers using online digital platforms.”
At a Senate hearing earlier this year, Facebook CEO Mark Zuckerberg faced off with Sen. Ted Cruz, R-Texas, over whether his site is a “neutral public forum” protected from legal liability by the Communications Decency Act or a publisher responsible for the content it does or does not post. Although Cruz maintained restricting access to objectionable political speech invalidates a platform’s immunity from liability, several legal experts disagreed.
“It’s 100 percent wrong and it’s an embarrassment that he’s taken this position after the number of times people have tried to convince him otherwise, including me,” Goldman said in an interview earlier this year.
The petitioners’ brief in the MNN case specifically points to the recent removal of conspiracy theorist Alex Jones’ content from several media and social media platforms. If these sites were deemed state actors, such disciplinary measures would promptly run afoul of First Amendment complaints.
“If the government were going to second-guess everything they did, the internet would be unusable,” Szoka said.