Supreme Court Signals Loud And Clear That Social Media Sites Are Not Public Forums That Have To Allow All Speech

Last fall I wrote about the Supreme Court agreeing to hear a case that some argued would allow the Supreme Court to declare that social media sites were public forums thereby limiting their ability to block or ban certain users. A key argument brought forth by many who have been kicked off of various social media platforms is that under a strained reading of both the Pruneyard case (a very narrowly ruled case, establishing malls as public forums) and the Packingham case (which said states cannot create laws that ban people from the internet), is that social media platforms like YouTube, Facebook and Twitter are some sort of quasi-public forums, and therefore the 1st Amendment applies to them as state actors... and therefore they can't ban anyone or block content. This has never made much sense, and required a pretty twisted reading of those other cases -- but there was some thought that this new case might allow the Supreme Court to weigh in on the subject.

The details of the case are a bit involved -- and you can read the original post for more details -- but the short version is that two producers were fired from a public access channel, Manhattan Neighborhood Network, for criticizing MNN. The two fired producers, DeeDee Halleck and Jesus Melendez, argued that this violated the 1st Amendment, because MNN was set up by New York City's government, as required by New York State. Thus, there was a strong argument that MNN was a public forum, given the state's role in creating it. The 2nd Circuit agreed that it was a public forum and MNN appealed to the Supreme Court, raising the specter that if the ruling were allowed to stand, it could end up being applied to the various social media platforms as well, creating quite a mess.

As I wrote in my post about it, this seemed like a stretch as well, since the state's role in creating MNN was a key factor here, and that was not at all true with social media platforms. I also thought that the Supreme Court would likely rule narrowly and avoid the issue of social media platforms altogether -- though, given the political climate, I feared that the Supreme Court would say something stupid on this and create a new mess. Instead, the ruling, which came out earlier this week, went in the opposite direction. While the ruling itself doesn't directly apply to social media, the Supreme Court actually reversed the 2nd Circuit ruling that declared MNN a public forum, and very strongly hinted that it's ridiculous to think social media platforms could be considered public forums. And, for all the so-called "conservatives" who have been the most vocal in promoting the theory that social media sites are public fora governed by the 1st Amendment, it might surprise them to find that it was the so-called "conservative Justices" who decided this one, with Kavanaugh writing the opinion, joined by Roberts, Thomas, Alito and Gorsuch -- and Sotomayor writing the dissent, joined by Ginsburg, Breyer and Kagan.

Indeed, hysterically, it appears that a key argument made by the majority to argue against a finding of a public forum is one from one of the "conservatives" currently suing a platform. Stay tuned for that tidbit. But first, the decision itself. I was wrong in expecting the court to uphold the 2nd Circuit's ruling (and my fear was that they would apply it in a way that was too broad). But Kavanaugh and the majority make it clear that they see public forum doctrine to be very, very, very limited. And it doesn't apply to a public access TV network, even one created by the state.

Under the state-action doctrine as it has been articulatedand applied by our precedents, we conclude that operationof public access channels on a cable system is not atraditional, exclusive public function. Moreover, a privateentity such as MNN who opens its property for speech byothers is not transformed by that fact alone into a stateactor. In operating the public access channels, MNN is aprivate actor, not a state actor, and MNN therefore is notsubject to First Amendment constraints on its editorialdiscretion.

The key to Kavanaugh's ruling is that to make a private entity a public forum, it needs to take over "powers traditionally exclusively reserved to the State." The "exclusively" part is what the majority focuses on.

It is not enough that the federal, state, or local governmentexercised the function in the past, or still does. Andit is not enough that the function serves the public good orthe public interest in some way. Rather, to qualify as atraditional, exclusive public function within the meaningof our state-action precedents, the government must havetraditionally and exclusively performed the function.

The Court has stressed that "very few" functions fallinto that category.... Under the Court's cases, those functionsinclude, for example, running elections and operating a company town.... The Court hasruled that a variety of functions do not fall into that category,including, for example: running sports associationsand leagues, administering insurance payments, operatingnursing homes, providing special education, representingindigent criminal defendants, resolving private disputes,and supplying electricity.

And, the majority says, running a TV station also does not qualify.

The relevant function in this case is operation of publicaccess channels on a cable system. That function hasnot traditionally and exclusively been performed bygovernment.

And that's pretty much the ballgame for those arguing for a public forum designation even for this public access channel created by the state. However, Kavanaugh does go further in highlighting why it would be ludicrous to argue that social media sites, for example, would qualify and be subject to the 1st Amendment. As the opinion notes, just hosting a forum for speech does not magically turn you into a government actor hosting a "public forum." And then Kavanaugh goes even further, directly saying that a private entity can moderate all they'd like:

By contrast, when a private entity provides a forum forspeech, the private entity is not ordinarily constrained bythe First Amendment because the private entity is not astate actor. The private entity may thus exercise editorialdiscretion over the speech and speakers in the forum.This Court so ruled in its 1976 decision in Hudgens v.NLRB. There, the Court held that a shopping centerowner is not a state actor subject to First Amendmentrequirements such as the public forum doctrine....

The Hudgens decision reflects a commonsense principle:Providing some kind of forum for speech is not an activitythat only governmental entities have traditionally performed.Therefore, a private entity who provides a forumfor speech is not transformed by that fact alone into astate actor. After all, private property owners and privatelessees often open their property for speech. Grocerystores put up community bulletin boards. Comedy clubshost open mic nights. As Judge Jacobs persuasively explained,it "is not at all a near-exclusive function of thestate to provide the forums for public expression, politics,information, or entertainment."

And just to drive the point home:

In short, merely hosting speech by others is not a traditional,exclusive public function and does not alone transformprivate entities into state actors subject to FirstAmendment constraints.

If the rule were otherwise, all private property ownersand private lessees who open their property for speechwould be subject to First Amendment constraints andwould lose the ability to exercise what they deem to beappropriate editorial discretion within that open forum.Private property owners and private lessees would facethe unappetizing choice of allowing all comers or closingthe platform altogether. "The Constitution by no meansrequires such an attenuated doctrine of dedication ofprivate property to public use." ... Benjamin Franklindid not have to operate his newspaper as "a stagecoach,with seats for everyone." ... That principle still holds true. As theCourt said in Hudgens, to hold that private property ownersproviding a forum for speech are constrained by theFirst Amendment would be "to create a court-made lawwholly disregarding the constitutional basis on whichprivate ownership of property rests in this country." ... TheConstitution does not disable private property owners andprivate lessees from exercising editorial discretion overspeech and speakers on their property

This is less important to the point we're discussing here, but if you're wondering why the majority said that even when the state creates the public access channel by law, it does not become a public forum, Kavanaugh explains that this would open up way too many charges of other private entities that require government licensing being charged as a public forum:

Numerous private entities in America obtain governmentlicenses, government contracts, or governmentgrantedmonopolies. If those facts sufficed to transform aprivate entity into a state actor, a large swath of privateentities in America would suddenly be turned into stateactors and be subject to a variety of constitutional constraintson their activities. As this Court's many stateactioncases amply demonstrate, that is not the law.

And it is noteworthy that the majority opinion makes it clear that some public access channels, if actually operated by the government, could count as a public forum, subject to the 1st Amendment. It just doesn't think MNN meets that criteria.

Now, here's the ironic bit. Kavanaugh concludes the opinion with the following:

It is sometimes said that the bigger the government, thesmaller the individual. Consistent with the text of theConstitution, the state-action doctrine enforces a criticalboundary between the government and the individual, andthereby protects a robust sphere of individual liberty.Expanding the state-action doctrine beyond its traditionalboundaries would expand governmental control whilerestricting individual liberty and private enterprise. Wedecline to do so in this case.

MNN is a private entity that operates public accesschannels on a cable system. Operating public accesschannels on a cable system is not a traditional, exclusivepublic function. A private entity such as MNN who opensits property for speech by others is not transformed bythat fact alone into a state actor. Under the text of theConstitution and our precedents, MNN is not a state actorsubject to the First Amendment.

Cornell Law professor Michael Dorf found that first sentence that I bolded above a bit odd, as Kavanaugh doesn't quote that line, but just says "it is sometimes said." So he went hunting for where that quote originated, and it turns out that it originated with Dennis Prager.

Remember Dennis Prager? He was actually one of the first to file a lawsuit making the ridiculous claim that YouTube is a public forum, subject to the First Amendment (after YouTube put just a small percentage of his videos into "restricted mode" and Prager freaked out, claiming "anti-conservative bias" despite the fact that YouTube put a far higher percentage of videos on what most people would consider to be more "liberal" channels into the very same restricted mode). Prager's lawsuit was laughed out of court, but it is still cited all the time by people who claim (1) anti-conservative bias by the platforms, and (2) that platforms are a public forum, and therefore subject to the First Amendment. Indeed, this is from Prager's original complaint:

Despite their control and regulation of one of the largest forums for public speech and expression in California, the United States, and the world, Google/YouTube regulate and censor speech as if the laws governing free speech and commerce do not apply to it. In so doing, Defendants believe that they have unfettered, unbridled, and unrestricted power to censor speech or discriminate against public speakers at their whim for any reason, including their animus toward and political viewpoints of their public users and providers of video content, because Defendants are for profit organizations rather than governmental entities.

Google/YouTube are wrong. As the California Supreme Court has stated: "[t]he idea that private property can constitute a public forum for free speech if it is open to the public in a manner similar to that of public streets and sidewalks" has long been the law in California. Fashion Valley Mall, LLC v. N.L.R.B. (2007) 42 Cal.4th 850, 858. The United States Supreme Court also recognized more than a half-century ago that the right to free speech guaranteed by the First Amendment to the United States Constitution can apply even on privately owned property. One of the most important places to exchange and express views is cyberspace, particularly social media, where users engage in a wide array of protected First Amendment activity on any number of diverse topics. And because the "[i]nternet's forces and directions are so new, so protean, and so far reaching," however, the U.S. Supreme Court warned that the law must be conscious that what it says today about the characteristics of a forum or free speech medium may be obsolete tomorrow. See Packingham v. North Carolina, 137 S.Ct. 1730, 1735-38 (2017).

So, boy, is it ever ironic that in a Supreme Court ruling that completely and utterly debunks Prager's own legal theory, the "conservative" wing of the Supreme Court quotes (without citation) a line from Prager to defend why Prager is laughably wrong. That's delicious.

Oh, and just in case the folks arguing that social media is a public forum think the dissenting "liberal" judges might save them here, that's not going to fly either. From Sotomayor's dissent:

In addition,there are purely private spaces, where the First Amendmentis (as relevant here) inapplicable. The FirstAmendment 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 viewpointdiscrimination.

So, uh, yeah. If you're arguing that private platforms like Facebook, YouTube and Twitter are magically "public fora" even as the Supreme Court is rejecting that designation for a public access channel that was literally created by the state, suffice it to say that you're argument is not going to go very far.