Login | December 10, 2018

SCOTUS to hear First Amendment case, could impact social media

RICHARD WEINER
Technology for Lawyers

Published: November 9, 2018

The U.S. Supreme Court has granted cert to hear a case that could (possibly) have an impact on social media.

Although the case, Manhattan Community Access Corp. v. Halleck, No. 17-702, technically doesn’t involve social media per se, the issues in the case may be expanded to affect Facebook, Twitter, etc. if the court feels so inclined.

The case centers on whether a private operator of a public access television network is considered a state actor which can be sued for First Amendment violations. In this case, two producers are suing a public TV corporation, saying that they were fired for expressing protected political opinions.

The main question is whether or not public TV gets First Amendment freedom of speech rights, or if it a private entity that does not have those protections.

As we know, except under some very limited circumstances, the only way that the First Amendment is engaged is through public speech. Private speech, for the most part, doesn’t have those protections (although it has others, of course).

For now, a social media site—or any site—can ban a user for violating its terms of service without fearing a First Amendment action.

Think back to when Alex Jones got banned from social media a few months ago. Although he cried “First Amendment,” in reality Twitter is a private space run by a private corporation, and so doesn’t have to afford anyone the opportunity or ability to say anything.

But is social media so all-pervasive that it becomes a public space where speech is free and can be constitutionally protected?

This case may take that question on—although social media is not specifically a part of this case and, most of the time, the court is reticent to expand the purview of a case.

In a 2017 case, Justice Kennedy stated that social media is a “modern public square,” hinting, but not saying, that social media speech is public.

But no court has gotten there yet. None of them have ruled specifically that social media posts are covered by the 1st Amendment.

So will the court expand its focus in this case? No way to tell, of course. You could go broke betting on SCOTUS outcomes.

But this an opportunity for the Roberts Court to take a step in that direction. We shall see.


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