Private Publishers Aren’t State Actors–Manhattan Community Access v. Halleck

[Eric’s note: this post has two parts. First, I recap the opinion and its implications. Then, Heather Whitney revisits as a guest blogger with a different perspective.]

Part 1: Eric’s Comments

This case involves local cable access, but it has potentially huge implications for the Internet. As I’ve blogged recently, litigants have inundated the court system with claims that social media providers have blocked them or their content. In a divided but emphatic decision, the Supreme Court reiterated that non-governmental publishers aren’t state actors, a ruling that reinforces the editorial freedom of all private publishers–including social media providers managing their databases.

Facts

Time Warner runs a cable system in Manhattan. New York law requires Time Warner to provide public access channels. New York City outsourced operation of those channels ot a private nonprofit entity, MNN. Applicable laws require public access to be free of charge, nondiscriminatory, and first-come, first-served.

The plaintiffs broadcast a video on a public access channel operated by MNN. The video triggered viewer complaints. In response to that and other concerns, MNN suspended the plaintiffs’ access to the channels. The plaintiffs alleged that MNN’s suspension violates their First Amendment rights.

The Majority Opinion

As we know, “the [Constitution’s] Free Speech Clause prohibits only governmental abridgment of speech. The Free Speech Clause does not prohibit private abridgment of speech.”

The majority treats this as an easy case: “In operating the public access channels, MNN is a private actor, not a state actor, and MNN therefore is not subject to First Amendment constraints on its editorial discretion.”

To get around this, the plaintiffs claimed that MNN performed “a traditional, exclusive public function.” The court responds that the public function must be both traditional and exclusive. The “operation of public access channels on a cable system…has not traditionally and exclusively been performed by government.”

Without a state action hook, the First Amendment doesn’t protect the plaintiffs: “when a private entity provides a forum for speech, the private entity is not ordinarily constrained by the First Amendment because the private entity is not a state actor. The private entity may thus exercise editorial discretion over the speech and speakers in the forum.” The opinion amplifies:

Providing some kind of forum for speech is not an activity that only governmental entities have traditionally performed. Therefore, a private entity who provides a forum for speech is not transformed by that fact alone into a state actor. After all, private property owners and private lessees often open their property for speech. Grocery stores put up community bulletin boards. Comedy clubs host open mic nights.

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

The fact that New York requires public access channels doesn’t change the outcome. “[G]overnment licenses, contracts with, or grants a monopoly to a private entity does not convert the private entity into a state actor—unless the private entity is performing a traditional, exclusive public function.”

The majority concludes with a general policy statement against expansively construing the scope of state action: “Expanding the state-action doctrine beyond its traditional boundaries would expand governmental control while restricting individual liberty and private enterprise.” Thus, a “private entity such as MNN who opens its property for speech by others is not transformed by that fact alone into a state actor.”

The Dissent

The dissent calls the majority opinion “a very reasonable story about a case that is not before us.” Thus, the dissent apparently agrees with the general legal principles outlined in the majority. For example, the dissent says that in “purely private property…picking favored viewpoints is appropriately commonplace.” The dissent also agrees that the “majority is surely correct that ‘when a private entity provides a forum for speech, the private entity is not ordinarily constrained by the First Amendment.’ That is because the majority is not talking about constitutional forums—it is talking about spaces where private entities have simply invited others to come speak.”

The dissent deviates from the majority because it thinks the case involves “an organization appointed by the government to administer a constitutional public forum.” That makes this “a case about principals and agents.” To the dissent, MNN was the government’s agent, which made it bound by the rules applicable to the government. Thus, “as long as MNN continues to wield the power it was given by the government, it stands in the government’s shoes and must abide by the First Amendment like any other government actor.”

Implications

Social Media Services Are Not State Actors. Although the opinions don’t mention social media providers, the majority’s ruling–and, to a lesser extent, the dissent’s agreement with the majority–seems clearly applicable to them. To recap, the majority says:

• “when a private entity provides a forum for speech, the private entity is not ordinarily constrained by the First Amendment because the private entity is not a state actor. The private entity may thus exercise editorial discretion over the speech and speakers in the forum”
• “merely hosting speech by others is not a traditional, exclusive public function and does not alone transform private entities into state actors subject to First Amendment constraints”
• a “private entity such as MNN who opens its property for speech by others is not transformed by that fact alone into a state actor.”

All of this directly applies to the legal questions swirling around social media providers. They do not perform a “traditional, exclusive public function,” and they host/open up their private property to third-party content publishers. I think there’s only one way lower courts can read the majority opinion: no matter what arguments plaintiffs make, social media providers aren’t state actors and aren’t subject to Constitutional obligations.

Lower Courts Will Push Back on Censorial Pleadarounds. The majority opinion only deals with one branch of the state action doctrine. Still, I think this ruling will influence lower courts to reject a variety of plaintiff attempts to restrict publishers’ editorial freedom, whether it’s other prongs of the state action doctrine or synthetic equivalents like treating publishers as “utilities.” All of those workaround arguments represent pro-censorship doctrines. Given the court’s endorsement of MNN’s editorial freedom, I think other claims seeking to curtail private entities’ editorial freedom will get skeptical treatment.

Cable is Different. Cable broadcasting is subject to a different regulatory regime than Internet publishing due to its hardware limitations (the last-mile cable) and its direct linkages to over-the-air broadcasting, which historically had invasive regulatory requirements. In Reno v. ACLU, the Supreme Court made it clear that Internet publishing wasn’t like cable or broadcasting from a First Amendment standpoint. That distinction between media underlies this case in ways that are only partially expressed. The majority treats the mandatory public access channels as still subject to the highest levels of protection. The dissent focuses on the mandated nature of the public access and the city’s outsourcing of that legal requirement to a contractor. Thus, much of the dissent’s issues are unique to the cable/broadcasting context.

Who Should Have Been the Plaintiff? The majority says “If MNN violates…state laws, or violates any applicable contracts, MNN could perhaps face state-law sanctions or liability of some kind.” What would this case have looked like if New York or Time Warner had sued MNN for not complying with its contractual obligations?

Part 2: Comments from Heather Whitney

It is important to recognize that there are multiple kinds of regulatory questions swirling around the dominant tech giants today. And the answers to most are likely unaltered by the holding in this case.

Some of the questions:

(1) Whether these tech giants can, consistent with the First Amendment rights of users, block or otherwise censor the speech of those users. For instance, whether Facebook would violate the First Amendment rights of the NRA or civil rights activists if it shuts down their Pages.

(2) Whether the government can, consistent with the First Amendment rights of the tech giants and/or downstream users, regulate search results, ads, newsfeed content, etc. For instance, whether Congress could, consistent with the First Amendment, pass a law requiring Facebook to take steps to curtail the spread of fake news.

(3) The application of antitrust law to these companies, such as to require them to make fundamental changes to how they operate (which will likely include changes to the content they provide users). For instance, prohibiting Google from burying Yelp! listings in order to promote its competing product, Google Reviews.

(4) Whether government agencies or officials can, consistent with the First Amendment rights of individuals, block or ban those individuals from their social media spaces when those spaces are on privately-owned platforms. For instance, Trump blocking individuals from his Twitter.

MNN signals that, with Justice Kennedy’s departure and replacement by Justice Kavanaugh, five Justices want to walk back the expansive language in Packingham and not see these tech giants as state actors. This means MNN may affect the answer to question (1). Of course, it might not. As Eric suggests, there are other routes to finding Google, Facebook, and Twitter state actors. And even via the public forum route, the Court said a “private entity … who opens its property for speech by others is not transformed by that fact alone into a state actor.” There may be other facts that complete that transformation in the case of tech giants and not in the case of a private nonprofit entity.

But overall, I agree with Eric’s general reading of the case. What I want to stress here is what this case does not change. And that is potentially the questions in (2), (3), and certainly (4).

To quickly explain:

Regarding question (2) and (3), and as I’ve written about before, there are many analogical frameworks one could deploy when thinking about these companies and regulation of them. In FAIR, 547 U.S. 47 (2006), for instance, law schools argued that requiring them to treat military and non-military recruiters alike unconstitutionally compelled them to speak – to send a message about their views on a military policy with which they disagreed. To make the argument, the law schools tried to analogize themselves to the newspaper in Tornillo, 418 U.S. 241 (1974), where compelling it to run an editorial with which it disagreed was held unconstitutional compelled speech. But the Court in FAIR rejected that analogy. Instead, the Court said that unlike a newspaper running editorials, “schools are not speaking when they host interviews and recruiting receptions.” The Court could apply that same reasoning to legislation requiring these companies to include certain speakers or content.

And as for question (4), it is untouched. Trump’s Twitter space can itself be a public forum subject to First Amendment regulation even though it takes place on a privately-owned platform. The question is whether “a governmental entity, in regulating property in its charge, may place limitations on speech.” Cornelius v. NAACP Leg. Def. Fund, 473 U.S. at 788, 801 (emphasis mine). And multiple lower courts have recognized, correctly, that when a government official bans or otherwise blocks individuals’ speech on their social media spaces, they violate the First Amendment rights of those users.

MNN likely matters to the future regulation of tech giants, just not as much as it might seem.

Case citation: Manhattan Community Access Corp. v. Halleck, 587 U. S. __ (2019).