Kavanaugh, Technology, And The Future Of Free Speech

July 13, 2019

 

 



 

 

 

 

 

By: Ashley Baker, CFJ director of public policy, writes in The Federalist Society blog:

Syndicated by: Montana News

In a case closely watched for its potential impact on the debate about tech companies' moderation of online content, the Supreme Court ruled 5-4 on whether a private corporation operating a government-mandated public-access cable channel is a “state actor” – that is, acting in a traditionally governmental role – and therefore subject to First Amendment constraints.

 

Manhattan Community Access Corp. v. Halleck involved a privately owned nonprofit corporation designated by New York City to operate a public-access channel on a cable system owned by Time Warner. The case arose when Manhattan Community Access Corp. (known as “MNN”) banned two individuals from airing programs on the channel. Halleck and Melendez then sued MNN on First Amendment grounds.

 

The United States Court of Appeals for the Second Circuit ruled for the content contributors, but the High Court reversed, holding that MNN is not subject to the First Amendment. Writing for the majority, Justice Brett Kavanaugh noted that operation of a public-access channel is not a traditionally governmental function – both public and private entities have historically operated such channels – and providing an open forum for public expression does not turn a private corporation into a vessel of the state.

 

The Supreme Court's decision comes as the public debate about free speech heats up, with lawmakers and the general public upset about social media practices and conservatives wary of what they see as discriminatory censorship of online content by Facebook, Twitter, Google, and the like.

 

There are important differences between the roles of these tech giants and MNN, but analysis of this case has nonetheless spilled over into the debate over online content moderation. Tech companies' concerns were allayed for now when the Court found that MNN was not constrained by the First Amendment.

 

That the majority opinion was authored by newly-confirmed Justice Kavanaugh is significant because some have speculated, based on his record as a lower court judge, that he will fill Justice Anthony Kennedy’s shoes on the issue of free speech. During Kennedy's three decades on the Court, he authored many of its First Amendment decisions and considered himself a fierce protector of free speech.

 

Justice Kavanaugh’s record on the United States Court of Appeals for the D.C. Circuit indicates a commitment to the protection of robust free speech and provides further insight. Writing separately in Cablevision Systems Corp. v. FCC (2010) to discuss the problems raised by carrier restrictions, Kavanaugh emphasized the endurance of First Amendment principles despite rapid changes in the methods of communication. Those principles apply "to modern means of communication,” he wrote, just as they “did to the publishers, pamphleteers, and newspapers of the founding era." "[V]ideo programming distributors … and video programming networks … are editors and speakers protected by the First Amendment's guarantee of freedom of speech and of the press."

 

Six years later, online speech was clearly on Kavanaugh's mind in his opinion dissenting from the denial of rehearing en banc in United States Telecom Association v. FCC (2016). Writing that the government may not "regulate the editorial decisions of Facebook and Google," or ‘impose forced-carriage or equal-access obligations on YouTube and Twitter, as he asks: “Can the Government really force Facebook and Google and all of those other entities to operate as common carriers? Can the Government really impose forced-carriage or equal-access obligations on YouTube and Twitter?”

 

Some may be surprised that Justice Kavanaugh, in writing the Court’s opinion in Halleck, missed an opportunity to address Internet platforms in dicta. Kavanaugh writes:

 

“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.”

 

If Kavanaugh’s omission of dicta concerning social media platforms was intentional, there is a possible explanation: The 5-4 ruling was a close one, and the majority opinion feels like a compromise. There was likely a holdout. Most likely, the majority wanted a clear rule and to avoid the fact-based morass of the dissent's approach. So rather than add dicta likely to be injected into a highly-charged debate (and potentially by either side) the majority was more subtle.

 

Explaining the “constitutional basis on which private ownership of property rests,” Justice Kavanaugh writes, “[t]he Constitution does not disable private property owners and private lessees from exercising editorial discretion over speech and speakers on their property.” He then drops a footnote:

 

“A distinct question not raised here is the degree to which the First Amendment protects private entities such as Time Warner or MNN from government legislation or regulation requiring those private entities to open their property for speech by others.” (emphasis in original).

 

With this footnote, Kavanaugh ponders whether New York or federal legislation could limit MNN’s editorial discretion as long as in doing so it did not violate federal law or the Constitution. The parallel to social media platforms and content moderation are clear.

 

Still, the practical reach of the case is very limited as it only applied to the case before the Court. The facts are not analogous, and Internet platforms cannot reasonably be compared to government-mandated public-access channels. The case also did little to clear up the murky state-action doctrine

 

That said, it notably declined—despite clear opportunities—to opine on online speech. But the footnote is something of an invitation.

 

 

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