The United States Supreme Court needs to put the case of Manhattan Community Access Corp. v. Halleck on the fast track, because it could settle much of the uncertainty about the legal status of social media.
In Halleck, a public access television channel in New York called MNN refused to air a video that contained language that allegedly violated MNN’s policies. The producers of the video sued on First Amendment grounds and a divided three-judge panel, the the Court of Appeals for the 2nd Circuit, ruled in favor of the producers in a split decision. According to two of the judges, “although MNN was a privately owned non-profit that operated the TV channel, its programming represented a public forum protected by the First Amendment.”
The Supreme Court has now been asked to render judgment on this issue. As is evident, this case is significant because it can help shape the parameters under which other social media platforms can restrict and/or penalize their users because of their content.
This decision cannot come soon enough, given the recent slate of bans and/or suspensions handed down by social media giants, including Twitter. Most notably, Twitter permanently suspended Laura Loomer’s account for allegedly violating the Twitter rules. More surprisingly, Twitter recently banned conservative radio host, writer, and retired United States Marine Jesse Kelly without explanation. According to a recent article in the Washington Examiner, Kelly has “never engaged in the targeted harassment or hate speech that Twitter’s terms of service specifically forbids.” Therefore, the fact that he was permanently banned should be viewed with skepticism and begs the question of whether some social media platforms are engaging in censorship strictly based on content.
The heart of the matter revolves around whether or not the various social media platforms are deemed to be public forums and whether their users have First Amendment protections. Presently, companies like Twitter are deemed to be private companies. As such, users do not have an intrinsic right to use these platforms to express themselves. But the 2nd Circuit’s logic doesn’t quite jive with this idea. The Supreme Court could potentially change the playing field, depending on how it rules in the Halleck case.
If the Court’s ruling is very broad, it could significantly alter how social media platforms “police” and/or regulate content. On the other hand, if the decision is narrow, users like Loomer and/or Kelly could face a more difficult path to “reinstatement.” The Supreme Court did issue a tangentially related ruling in a 2017 case. The court struck down a North Carolina law barring convicted sex offenders from accessing social media after their release from prison.
Justice Anthony Kennedy, writing for a unanimous court, called social media “a modern public square.” Other courts tasked with similar questions have issued somewhat inconsistent rulings. Although some courts have rejected the notion of First Amendment liability for social media sites, a federal judge in Manhattan famously ruled this spring that Twitter users have a First Amendment right to interact with President Trump’s Twitter feed — although not necessarily a right to use Twitter as a whole.
The fact that Loomer and Kelly are both conservative voices is concerning because it gives the impression that Twitter is selectively enforcing its rules based on the content of messages, not just acting to prevent harassment and incitement. For Twitter to defend this action without taking similar steps against other nonconservative users who engage in hateful and/or racist rhetoric would render its legal defenses virtually meaningless.
The Supreme Court needs to address this issue quickly. At the present time, social media platforms enjoy seemingly unfettered discretion as to the type of conduct that they permit on their sites. This can have a wide-reaching impact. For example, given the vast reach of these platforms, a Republican candidate might be at a major disadvantage if blocked from using one or more of these platforms, assuming that there exists some right to use them.
Hopefully, the Supreme Court puts this case on the fast track and clarifies some of these difficult, yet important, legal issues.
Elad Hakim is a political writer, commentator, and a practicing attorney.
