On The Case

A Supreme Court case has Internet companies running scared

(Reuters) - This week, the Internet came to the U.S. Supreme Court to warn the justices of the potentially disastrous consequences of a broad ruling in a case that, ostensibly, has nothing to do with social media sites or search engines.

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Manhattan Community Access Corporation v. Halleck is a case about a public access cable television station in New York. The station, operated by the nonprofit Manhattan Neighborhood Network (MNN) via a long-running agreement with New York City, took disciplinary action against two contributors for allegedly inciting violence against station employees. The contributors sued, claiming MNN was violating their First Amendment free speech rights.

A Manhattan federal court judge dismissed the case, but, as MNN's lawyers from Cozen O’Connor wrote in their Dec. 4 merits brief, the 2nd U.S. Circuit Court of Appeals revived the suit in a short, splintered opinion (882 F.3d 300) last February. The 2nd Circuit majority found that the public access TV station is a public forum and that MNN, because it was designated by New York City to run the station, can be deemed a state actor for First Amendment purposes, even though the nonprofit is not controlled by the city or state government. The Supreme Court agreed in October to review the case to decide whether the 2nd Circuit contravened Supreme Court precedent when it decided that a private, independent nonprofit that operates a public access cable station can be liable as a state actor under the First Amendment.

There’s no mention of the Internet in the questions MNN posed at the Supreme Court. But this week, the Internet Association, a trade group, and the nonprofit Electronic Frontier Foundation filed amicus briefs arguing that if the Supreme Court isn’t careful to confine its ruling to the facts of the MNN case, the Internet of the future could be a dark, dark place.

If the Supreme Court were to decide that private companies can face First Amendment liability as state actors because they provide a forum for public speech, the Internet Association warned, “the Internet as we know it will become less attractive, less safe and less welcoming to the average user.” Search engines wouldn’t be able to exercise editorial judgment. YouTube couldn’t take down videos depicting, say, animal cruelty or hate speech. Social media sites couldn’t block offensive content.

“Put simply, an Internet where companies are treated as state actors is a very different Internet from the one that exists today,” wrote Munger Tolles & Olson, counsel of record to the Internet Association, which advocates for about 40 of the biggest tech companies in the country. “It is an Internet where individual businesses must be less responsive to community norms and consumer demands, and where these individual businesses are forced to be less safe for children and families. And it is an Internet with less of a self-directed commitment to free expression.”

Why are search engines and social media sites inserting themselves into a case about public access television? The first part of the answer lies in the way the 2nd Circuit reached the conclusion that MNN can be liable under the First Amendment. The appeals court looked first at whether the public access television station that MNN operates is a public forum, rather than looking first at whether MNN is a state actor. MNN’s brief argues that the 2nd Circuit upended the inquiry, which, under Supreme Court case law, is supposed to begin with a determination that the defendant is a state actor.

EFF’s amicus brief agreed that the 2nd Circuit’s “ambiguous” handling of the inquiry “lends itself to misinterpretation and out-of-context citation.” According to EFF, platforms open to the public but owned and operated by private companies simply are not public forums for First Amendment purposes. “There can be no ‘public forum,’ as that term of art is used with respect to this court’s public forum doctrine, without significant involvement of the government itself,” its amicus brief said. EFF cautioned the justices against the logical fallacy that private companies can be deemed state actors because they operate public forums, which, by definition, can only be government-controlled.

That’s precisely the Internet Association’s fear: that the owner of a private platform can be converted into a state actor just because it operates a site encouraging free speech. “A public access channel may be, as the 2nd Circuit held in this case, ‘the electronic version of the public square,’” the Internet Association’s brief said. “And the Internet may be ‘the modern public square.’ But those facts alone are insufficient to transform these spaces into public forums for purposes of the First Amendment … A space that is not owned, leased, controlled or heavily regulated by the government cannot be a public forum under this court’s well-established precedent.”

So: Internet companies are worried that the MNN case will erode what they considered settled law on the definition of a public forum. And that potential erosion comes in the context of intensifying pressure over Internet companies’ exercise of editorial control over their operations. In congressional hearings, Republican lawmakers have accused Google and social media companies of disfavoring conservative viewpoints. A video outlet called Prager University, headed by conservative radio show host Dennis Prager, is litigating at the 9th U.S. Circuit Court of Appeals to hold YouTube liable for restricting access to its videos, arguing that YouTube is a public forum that cannot restrict free speech.

The Supreme Court’s own 2017 opinion in Packingham v. North Carolina emboldened some critics of Internet companies’ editorial judgments, according to the Internet Association’s amicus brief. Packingham involved a North Carolina sex offender barred by state law from accessing Facebook, Twitter and other several other websites. In holding the law unconstitutional under the First Amendment, the court referred to the Internet as a “modern public square.” That phrase, according to the Internet Association’s brief, has been twisted or misinterpreted by plaintiffs attempting to tag Internet companies with liability under the First Amendment. (Interestingly, Justice Samuel Alito’s dissent called out the majority opinion for “loose rhetoric” comparing the Internet to a public forum – but not because he was worried about liability for Internet companies; the justice was concerned that the court’s language would restrict states’ ability to impose any restrictions on Internet access.)

Clearly, Internet companies want the Supreme Court to be extremely circumspect in its language in the public access television case. Even though the case doesn’t involve the Internet, these are fraught times.

Notably, the Internet Association and EFF did not side with either party in the MNN case, taking no position on whether the public access TV operator is a state actor or not. And counsel of record for the MNN contributors who sued the station, Paul Hughes of Mayer Brown, told me his side agrees with the Internet amici that this case should be framed and decided narrowly. In his clients’ brief opposing Supreme Court review (Hughes argued there’s no reason to worry that the case will impact companies like Twitter or Facebook or Internet service providers because the government does not own or operate those private platforms, in contrast to New York’s control of the right to operate the public access television station.)

He told me his clients will similarly argue in their merits brief that the facts in the MNN case simply aren’t applicable to private Internet platforms. “Major Internet systems are private property. That is just a completely different circumstance.” In fact, Hughes said, the Commerce Clause would preclude the sort of state or local government control over Internet companies that his clients contend New York exercised over MNN’s public access TV contract.

“We appreciate their concerns,” he said. “Litigants are always going to be concerned about the collateral consequences of Supreme Court decisions and the Internet companies want to make sure the court is aware.”

Hughes also told me that noted First Amendment scholar Eugene Volokh of UCLA is now working with him on the MNN contributors’ case. I did a podcast this fall with Volokh on Internet companies and the First Amendment, one of his areas of expertise.