Posted on October 17, 2018

Supreme Court Agrees to Hear a Case Concerning Social Media and Censorship

Tucker Higgins, CNBC, October 16, 2018

The case, Manhattan Community Access Corp. v. Halleck, No. 17-702, centers on whether a private operator of a public access television network is considered a state actor, which can be sued for First Amendment violations.

The case could have broader implications for social media and other media outlets. In particular, a broad ruling from the high court could open the country’s largest technology companies up to First Amendment lawsuits.

That could shape the ability of companies like Facebook, Twitter and Alphabet’s Google to control the content on their platforms as lawmakers clamor for more regulation and activists on the left and right spar over issues related to censorship and harassment.


On its face, the case has nothing to do with social media at all. Rather, the facts of the case concern public access television, and two producers who claim they were punished for expressing their political views. The producers, DeeDee Halleck and Jesus Melendez, say that Manhattan Neighborhood Network suspended them for expressing views that were critical of the network.

In making the argument to the justices that the case was worthy of review, attorneys for MNN said the court could use the case to resolve a lingering dispute over the power of social media companies to regulate the content on their platforms.

{snip} Attorneys for MNN have made the case that social media companies are clearly not government actors. But in raising the question, they have provided the Supreme Court an opportunity to weigh in.


A ruling against MNN on the broad question it has asked the court to consider could open social media companies to First Amendment suits, which would force them to limit the actions they take to control the content on their platforms.

The court could also rule more narrowly against MNN in a way that does not impact the companies.

The case is likely to get extra attention as it moves forward given Republican lawmakers’ increasing attacks against social media companies for perceived partisanship. Those attacks have raised the specter that the court, which has served as a bulwark for conservative expression, could step in.


Michael Pachter, a former tax attorney who covers Twitter as an analyst at Wedbush Securities, said he thought it was “extremely unlikely” that the court will issue a ruling that hamstrings social media companies, particularly given the court’s deference to business interests.

If the court does place serious limits on how the companies can restrict the speech on their platforms, he said, it would make the networks more hostile, alienating their users and advertisers.


Courts in California and New Jersey have weighed in on the issue, finding that social media companies don’t constitute state actors subject to First Amendment liability. A federal judge in New York ruled in May that the First Amendment protected users interacting with parts of Twitter, including the president’s feed. But that ruling did not apply to Twitter as a whole.


Conservatives allege censorship

While the justices tend to describe themselves as being apolitical, the court of Chief Justice John Roberts has shown a distinct preference for speech cases that concern conservative ideology, according to an empirical analysis conducted by researchers affiliated with Washington University in St. Louis and the University of Michigan.

The analysis found that the justices on the court appointed by Republican presidents sided with conservative speech nearly 70 percent of the time.


Polls show that both Democrats and Republicans believe that social media companies censor their users, however, the issue swings heavily conservative. {snip}

The survey also found that 4 in 10 Americans believe that the companies favor liberal speech, versus just 1 in 10 who believes the companies favor conservative speech.


Rep. Devin Nunes, R-Calif., the conservative chairman of the House Intelligence Committee, in July accused Twitter of censorship and threatened legal action against the company.

Perhaps most dramatically, Facebook, YouTube, Apple and the music platform Spotify removed content from right-wing conspiracy theorist and provocateur Alex Jones in August, accusing the talk show host of violating their terms of service. Indeed, MNN cited Jones’s removal in a legal brief, saying it was an example of the heightened attention to the issue of First Amendment rights online.