5th Circuit Rewrites A Century Of 1st Amendment Law To Argue Internet Companies Have No Right To Moderate

Nov 19, 2023

Social media services are not public fora. Manhattan Community Access Corp. v. Halleck, a Supreme Court ruling from 2019 for which Trump-appointed Associate Justice Brett Kavanaugh wrote the majority opinion, doesn't directly address social media but still provides the logic necessary to counter any "yes they are public fora" argument:

Under the Court's cases, a private entity may qualify as a state actor when it exercises "powers traditionally exclusively reserved to the State." … It is not enough that the federal, state, or local government exercised the function in the past, or still does. And it is not enough that the function serves the public good or the public interest in some way. Rather, to qualify as a traditional, exclusive public function within the meaning of our state-action precedents, the government must have traditionally and exclusively performed the function.

The Court has stressed that "very few" functions fall into that category. … Under the Court's cases, those functions include, for example, running elections and operating a company town. … The Court has ruled that a variety of functions do not fall into that category, including, for example: running sports associations and leagues, administering insurance payments, operating nursing homes, providing special education, representing indigent criminal defendants, resolving private disputes, and supplying electricity. …

When the government provides a forum for speech (known as a public forum), the government may be constrained by the First Amendment, meaning that the government ordinarily may not exclude speech or speakers from the forum on the basis of viewpoint, or sometimes even on the basis of content[.]

By contrast, 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. This Court so ruled in its 1976 decision in Hudgens v. NLRB. There, the Court held that a shopping center owner is not a state actor subject to First Amendment requirements such as the public forum doctrine[.]

The Hudgens decision reflects a commonsense principle: 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. As Judge Jacobs persuasively explained, it "is not at all a near-exclusive function of the state to provide the forums for public expression, politics, information, or entertainment[".]

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.

If the rule were otherwise, all private property owners and private lessees who open their property for speech would be subject to First Amendment constraints and would lose the ability to exercise what they deem to be appropriate editorial discretion within that open forum. Private property owners and private lessees would face the unappetizing choice of allowing all comers or closing the platform altogether. "The Constitution by no means requires such an attenuated doctrine of dedication of private property to public use." … Benjamin Franklin did not have to operate his newspaper as "a stagecoach, with seats for everyone." … That principle still holds true. As the Court said in Hudgens, to hold that private property owners providing a forum for speech are constrained by the First Amendment would be "to create a court-made law wholly disregarding the constitutional basis on which private ownership of property rests in this country." … The Constitution does not disable private property owners and private lessees from exercising editorial discretion over speech and speakers on their property. …

A private entity … who opens its property for speech by others is not transformed by that fact alone into a state actor.

In 2020, the Ninth Circuit Court of Appeals directly cited Halleck as part of the ruling in Prager University v. Google LLC, a case in which PragerU claimed YouTube was a public forum due to the ubiquity and the public-facing nature of YouTube:

PragerU argues that the pervasiveness of YouTube binds it to the First Amendment because Marsh teaches that "[t]he more an owner, for his advantage, opens up his property for use by the public in general, the more do his rights become circumscribed by the … constitutional rights of those who use it." … PragerU's reliance on Marsh is not persuasive. In Marsh, the Court held that a private entity operating a company town is a state actor and must abide by the First Amendment. … But in Lloyd Corp. and Hudgens, the Court unequivocally confined Marsh's holding to the unique and rare context of "company town[s]" and other situations where the private actor "perform[s] the full spectrum of municipal powers." …

YouTube does not fit the bill. Unlike the company town in Marsh, YouTube merely operates a platform for user-generated video content; it does not "perform[] all the necessary municipal functions," … nor does it operate a digital business district that has "all the characteristics of any other American town[.]" …

YouTube also does not conduct a quintessential public function through regulation of speech on a public forum. … To characterize YouTube as a public forum would be a paradigm shift.

And in 2022, the Eleventh Circuit Court of Appeals cited Halleck as part of a ruling in NetChoice v. Attorney General, State of Florida:

Not in their wildest dreams could anyone in the Founding generation have imagined Facebook, Twitter, YouTube, or TikTok. But "whatever the challenges of applying the Constitution to ever-advancing technology, the basic principles of freedom of speech and the press, like the First Amendment's command, do not vary when a new and different medium for communication appears." … One of those "basic principles"—indeed, the most basic of the basic—is that "[t]he Free Speech Clause of the First Amendment constrains governmental actors and protects private actors." … Put simply, with minor exceptions, the government can't tell a private person or entity what to say or how to say it.

(To keep this copypasta from getting way too long for its own good, I suggest going to the relevant link and reading that article.)

So yeah, legal precedent says social media services are not public fora in the sense that they must host all legally protected speech. I have three citations of legal precedent; at best, you have two: one that only applies to physical shopping malls in California and one that a likely significant number of legal experts think is bullshit.