Newspaper Isn’t State Actor–Plotkin v. Astorian

March 18, 2021 · by · in Content Regulation

Plotkin placed a political ad with the Daily Astorian newspaper that allegedly advocated against Holcom and Hilton. The opinion doesn’t explain why Plotkin objected to these candidates, but Plotkin’s frequent letters to the editor give some clues. Even without advertising, Plotkin appears to have good access to the Astorian’s audience. I count 6 letters so far in 2021.

After accepting the ad, the newspaper heard from one of the referenced individuals (Holcom, according to the complaint). Pointing to its advertising standards, the Astorian then told Plotkin that he needed to include his name and address/phone number on the ad to continue running it. Plotkin did not agree, citing the legal principle that governments cannot ban anonymous political campaigning. The Astorian pulled the ad.

Plotkin sued the newspaper for 1st and 14th Amendment violations because he believed the Astorian can’t ban anonymous political campaigning. The newspaper replied that it isn’t a state actor. This is an easy case. “Like the public access television channel in Halleck, here a newspaper does not perform a traditional or exclusive government function…On the contrary, a press free and independent from the government is a basic tenet of our democracy.” To get around this, the plaintiff claimed that the newspaper created a public forum. Citing Halleck, PragerU and Belknap, the court says that “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.'” Thus, the court concludes:

As a private entity, The Astorian is free to create a public forum subject to its own editorial discretion without running afoul of the First Amendment

This lawsuit was obviously doomed from the beginning, and I don’t think an attorney would have filed it (Plotkin proceeded pro se). However, I see many intelligent people advocating for must-carry obligations by online publishers of third-party content, such as social media. Those arguments look equally mockable to me. If you are one of those people and yet you think this case is rightly decided, I encourage you to reconsider why any online publisher of third-party content should be treated differently.

Case citation: Plotkin v. The Astorian, 2021 WL 864946 (D. Ore. March 8, 2021). The complaint.

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