by Mitch Kokai
Senior Political Analyst, John Locke Foundation
A private corporation that runs a public “forum” is not bound by the First Amendment, the Supreme Court ruled Monday morning.
The case, which nominally concerns a public access channel in New York, has attracted attention as a potential vector for regulation of social media firms facing charges of viewpoint bias. …
… This question concerns more than just the operator of a Manhattan public access channel. Many major social media sites—Twitter, Facebook, YouTube, and so forth—operate as platforms for discussion, and thereby claim no legal responsibility for the content published on them. But if the First Amendment can be enforced against a private entity serving as a public forum, then these sites risk similar lawsuits.
This concern was enough to motivate amicus curiae briefs from both the Internet Association, a trade group representing a number of major tech firms, and the Electronic Frontier Foundation, the preeminent digital rights advocacy organization. The latter argued stridently against the idea that the mere operation of a public forum could qualify an otherwise private firm a state actor subject to the First Amendment.
“Certainly, the mere fact that something is either labeled a ‘public forum’ or operated by a private entity as a space generally open for communication by others does not automatically transform that private entity into a state actor,” the EFF’s brief reads in part. “Internet users’ rights are best served by preserving the constitutional status quo, whereby private parties who operate private speech platforms have a First Amendment right to edit and curate their sites, and thus exclude whatever other private speakers or speech they choose.”
A majority of the Court appeared to agree.