I have a new article coming out, called Who Do You Sue? State and Platform Hybrid Power over Online Speech. It is about free expression rights on platforms like Facebook or Twitter, which the Supreme Court has called “the modern public square.” One section is about speakers suing platforms. It looks at cases – over thirty so far – where users argue that companies like Facebook or Twitter have violated their free expression rights by taking down legal speech that is prohibited under the platforms’ Community Guidelines. The other section is about governments’ significant role in shaping platform removal decisions. The article looks at what remedies, if any, the law provides for users silenced by “laundered” state action. My contention is that these two issues – speakers’ rights against state power and speakers’ rights against private platform power – are deeply connected.
One thing I learned in writing the article is that, in the U.S., Communications lawyers have seen this all before. We Internet lawyers are only beginning to catch up. Closely analogous issues were debated for years as society responded to previous revolutions in communications technology, and to the technologies’ powerful private owners. For today’s concerns about platforms as information gatekeepers, some 1990s cases about cable TV are particularly on point. In them, the Supreme Court struggled to reconcile the interests of would-be speakers and the interests of private property owners who wanted to show them the door. Those cases aren’t just some artifact of the past, though. The Court has a new and potentially very important case on this very question pending right now.
The new case, Manhattan Community Access Corporation v. Halleck, was billed in some briefs as a dress rehearsal for speech claims against Internet platforms like Twitter. I’m not sure that’s right. But I do think it’s an opportunity for big picture doctrinal shifts or dicta with consequences in areas ranging from the Internet to private prisons. It also illustrates the problems for speakers when state and private power intertwine in governing speech platforms.
A quick tour of some 1990s cable cases
My article reviews a long line of cases that are relevant for speakers’ claims against Internet platforms. Two of the most important for Halleck are the two Turner rulings (I, II) and Denver Area Educational Telecommunications Consortium. Like all the best platform law cases, these ones have three interested parties, but only two of them are actually in court defending their interests. The three here are:
- Speakers. Like the users suing platforms today, cable programmers in these cases are saying “This communication channel is so important, if I can’t speak there I have effectively been deprived of First Amendment rights.”
- Platform owners. Like Internet platform owners today, the cable companies respond by saying “We’re not the government, we’re private companies, and our own speech rights will be violated if the court forces us to carry unwanted messages.”
- The government. In these cases, the government did what many people want it to do today: tell platforms that they must carry certain content or else that they must not carry certain content. (For this post, we are mostly concerned with the first one.)
Here is a quick and very compressed rundown of relevant questions from those cases.
Q1: Do cable companies have First Amendment rights to decide what content they will carry or exclude?
A1: Yes. Turner I tells us that selecting and arranging channels is expressive enough to warrant protection. This is the reasoning that platforms rely on today in asserting – with great success – a First Amendment right to exclude speakers.
Q2: Can the government override those rights and make the companies carry content they don’t want to?
A2: Yes, sometimes. Turner II upheld the specific law at issue there, which made cable companies carry local broadcast stations. (The reasons matter a lot for today’s arguments about platforms, competition, and speech, by the way. That’s all in the paper.)
The Court looked at a different mandatory-carriage law in the case most germane to today’s platform cases, Denver Area. People don’t read that case much. It’s very hard to get through, and has little majority-supported analysis to make the exercise worthwhile. But its six bickering opinions are crammed with the same questions that come up in today’s discussions of Internet platforms: When is private property a public forum? How do traditional common carriage principles relate to the First Amendment? Do cases about company towns and shopping malls apply to modern mediums for communication? How do we weigh speech rights of the carrier against speech rights of the carried? Is that exercise fundamentally misguided, an intrusion on both speech and property rights of owners of communications infrastructure?*
Denver Area involved a long-standing law that required cable companies to preserve some channels for uses including public access. In 1992, Congress amended that law to give cable companies the power, and in some cases the obligation, to police sexually explicit speech on those channels. Plaintiffs, who produced and disseminated content via the channels, said the law violated their First Amendment rights and sued the government. The cable companies, who were still litigating Turner at the time, were not part of the case.
With the cable companies absent, no one asked the Court to decide if Congress actually had authority to make them carry these channels. But the issue lurks behind the whole case. Justice Thomas’s opinion in particular bristles with intimations that the carriage obligation violates cable companies’ First Amendment rights. Justice Kavanaugh voiced similar reasoning in a dissent he wrote when he was on the DC Circuit, saying that net neutrality rules violated ISPs’ First Amendment rights. He explicitly connected this to platform questions, expressing strong skepticism that “the Government could regulate the editorial decisions of Facebook and Google,” or “impose forced-carriage or equal-access obligations on YouTube and Twitter[.]” That may mean we can expect more discussion of Internet platforms when the Court looks at cable carriage questions in Halleck – or not.
Q3: Can the government allow cable companies to police sexual content that third parties transmit over public access channels?
A3: The Court in Denver Area said no. By giving cable companies discretion over content on public access channels, Congress violated the First Amendment. The plurality’s reasons were complicated, but one issue was that cable companies are likely to overpolice. (This is a familiar problem in the Internet platform context, and the Denver Area connection is discussed well in Seth Kreimer’s Censorship by Proxy.) A Kennedy-Ginsburg concurrence and a Thomas-Scalia-Rehnquist dissent took widely diverging views on the question, and on whether the channels could be treated as public forums. This is the part of Denver Area being re-opened in Halleck.
Q4 and Q5: How about sexual content that third parties transmit over leased access channels?
A4 and A5: The Denver Area Court said a law requiring the cable companies to police and segregate sexual content violated the First Amendment. But it upheld a law that allowed them to prohibit such content. This part is less immediately relevant to today’s topic.
The New Case: Manhattan Community Access Corporation v. Halleck
Halleck picks up a question from Denver Area about whether public access channels are public forums – and whether that means users can sue private companies to enforce a right to speak there. The plaintiffs are video content creators. They were kicked off of a Manhattan public access channel by Manhattan Neighborhood Network (MNN), a private, non-profit corporation that the city hired to run the channels. MNN said that plaintiffs’ speech – which, incidentally, was criticism of MNN – violated its “program content restrictions.” In Internet-speak we might call those the Community Guidelines.
Plaintiffs sued pretty much everyone: the city, MNN, various individuals. The claims against the government got dismissed – more on that in a minute. But the Second Circuit said speakers could pursue a First Amendment claim against MNN. Following reasoning from the Kennedy-Ginsburg concurrence in Denver Area, it said the channel functioned as a public forum, and its operators as state actors. That’s the ruling on review now.
Halleck and Internet platforms’ First Amendment obligations
The questions in Halleck are interesting in themselves, but they don’t necessarily speak to the issue of Internet platforms as public forums. For one thing, Kennedy’s conclusion that public access channels are public forums depended on the specific history of cable. As he saw it, public access channels were never part of the bundle of property rights held by private cable companies, because they owed their existence to an explicit deal the companies cut with municipalities in order to build cable systems in the first place. In consideration for necessary city permissions (to dig under public streets and lay cable there, e.g.), he said, the companies created the channels and dedicated them to public use. That’s pretty cable-specific. So, while there are other public forum arguments that arise in both cable and Internet platform cases (mostly to do with attention scarcity and competition) those are not what Halleck seems likely to turn on.
The other thing is that even if Denver Area means that cable companies can be treated as state actors with obligations to respect First Amendment rights, that doesn’t necessarily mean MNN can be. They aren’t a cable company. They don’t own a vast platform for speech, they just run a handful of channels. In that sense, MNN is more like a YouTube channel operator or someone who runs a Facebook group than it is like YouTube or Facebook.
Of course, MNN is a channel operator designated by the government to run public access channels. They could well have First Amendment obligations because of that relationship. That approach to the case makes it look less like the 1990s cable cases, and more like the Knight Foundation case about President Trump’s Twitter feed. Plaintiffs aren’t demanding the right to speak or access information on an entire platform, or saying the platform is dominant or an essential facility or any of those things. They are saying that they should get rights to this one particular channel, because the channel’s operator – not the platform owner – is a state actor.
Halleck and the government’s First Amendment obligations
In Halleck, the Second Circuit said that plaintiffs could not sue the city, because MNN acted on its own – it wasn’t enforcing a municipal policy. The ruling cites a New York state regulation designating public access channels for “noncommercial use by the public on a first-come, first-served, nondiscriminatory basis.” Between that regulation and Denver Area (which, recall, said that Congress violated the First Amendment by merely allowing cable companies to exclude content from public access channels), it’s not surprising that plaintiffs figured there must be someone they could sue.
Should they have been able to sue the city? There's not much great precedent on that, though one relevant Supreme Court case, Hurley, had some oddly analogous background.** In general, it seems like a pretty big problem if governments can effectively restrain speech by deputizing private companies to operate public forums.*** That’s one step away from a point I make in my new article – that it’s a problem if governments can restrain speech by telling private platforms what legal expression they should exclude, or by passing badly-designed laws that in practice will make platforms silence lawful speakers. It’s also a problem if the law, in the U.S. and elsewhere, doesn’t provide clear guidelines to tell state actors and platforms when to stop coordinating to restrain online expression. We need to know what kinds of tacit and explicit accommodations between private platforms and governments are subject to challenge by affected speakers.
A part of me would love to see the Court speak to this issue in Halleck, if only in dicta. A bigger part thinks that’s not how things are supposed to work, that wishing for dicta on an issue that wasn’t fully litigated and briefed is like asking for lightning to strike. But we do very much need clarity on what to do when state and private power intertwine. They are doing that a lot, and being surfaced for legal review only a very little. No matter what substantive speech rules you favor, that’s a bad situation.
* I think this framing oversimplifies things. But if you like it, or even sort of like it, it’s worth reading the Eighth Circuit’s blistering takedown in 1978's Midwest Video. It lambastes the FCC both for telling cable companies what they must carry (thus burdening cable companies’ free expression rights) and for telling them what they must not carry (thus subjecting speakers to “a corps of involuntary government surrogates, but without providing the procedural safeguards respecting ‘prior restraint’ required of the government,” with the cable company serving as “both judge and jury, and subject[ing] the cable user's First Amendment rights to decision by an unqualified private citizen, whose personal interest in satisfying the Commission enlists him on the "safe" side—the side of suppression.”)
** Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston involved Boston’s St. Patrick’s Day parade. The Court held that the parade’s organizer had a First Amendment right to exclude a gay pride group. (Interestingly - not because of the group’s identity but because the group’s message would be attributed to the organizer. The opinion has a fascinating few sentences comparing this to excluding private club members on the basis of race, which doesn’t get First Amendment protection.)
The defendant in Hurley had been authorized by Boston’s mayor to organize a parade, replacing a pre-existing, city-sponsored event that jointly celebrated the religious holiday and a Revolutionary War anniversary. Until the events giving rise to the case, the city had funded the parade, provided printing services to its organizers, and allowed them to use the city’s official seal. Hurley, 515 U.S. at 560-61. Plaintiffs in Hurley brought a public accommodations claim against the city, but the state court below dismissed it because “the city's actions did not amount to inciting or assisting in the [private defendant’s] violations.” As in Halleck, this didn’t get appealed, so the Supreme Court was only asked to review claims against the private defendant.
*** That gets back to whether the public access channel is a public forum, of course. They seem like one to me, but I am leery of drawing strong conclusions because I am not a cable TV expert. Maybe there are reasons in policy or history why the state should be allowed to leave management of the channels to something more like a private media company, or why it should be treated more like a museum or a school – a government-controlled institution that nonetheless enforces content policies.