The lawsuit, Manhattan Community Access Corp. v. Halleck, was brought by two people who were barred from a New York City public access cable station after they aired a program that criticized the channel.  They argue that the station unlawfully censored their speech based on their viewpoint, in violation of the First Amendment.  The station, which was chosen by New York City to run its public access cable channel, argues that because it is not a government entity, it’s not bound by the First Amendment.

The court of appeals ruled in favor of the plaintiffs. It found that the City’s public access channel is a “public forum” and held that because New York City delegated the authority for running this public forum to a private non-profit organization, Manhattan Community Access Corporation, the station is essentially acting as a government entity in this context and must respect the First Amendment rights of people seeking to contribute programming.

So what does all this have to do with free speech online? 

To understand the link, some background on the “public forum doctrine” is helpful:  When the government allows members of the public to speak on property that it owns or controls, it creates a public forum, and it may not bar individuals from speaking in that forum based on their viewpoints.  Think of school board and other open government meetings where members of the public have a chance to voice their opinions—the First Amendment prohibits the officials who run these meetings from silencing dissenting voices.  

Increasingly, public forums are hosted online, as more and more public officials use social media sites like Facebook and Twitter to speak to, and hear from, members of the public.  The most prominent example is President Trump’s Twitter account, in which he takes official actions like hiring and firing cabinet members and engaging in foreign policy, and in which millions of individuals can post replies voicing their opinions about the president and his policies.  After the president blocked some people from replying to his tweets because they criticized him, a federal judge in New York ruled that the president had violated the First Amendment. (I am counsel in that suit.)

Of course, social media platforms, like other communications networks, including the cable transmission facilities in this case, are privately owned.  Some have argued that the First Amendment does not apply if the government is hosting a forum on private property. But where a government agency or public official hosts a public forum using privately owned communications networks, the First Amendment should still apply.  In addition to the president’s Twitter account, public officials and agencies at all levels of federal and state government use social media accounts to foster conversations between and among their constituents.  If the public forum doctrine didn’t apply in these contexts, officials would be free to censor anyone who disagreed with them on government-run Facebook pages and Twitter accounts.  The result would be a degradation of public discourse, as government-operated digital forums would turn into one-sided echo chambers instead of spaces for discourse, debate, and dissent.

To guard against such a result, the Supreme Court should take care to limit its ruling to ensure that the public forum doctrine continues to apply to expressive spaces that are owned or controlled by the government—be they public access cable channels or government-controlled Facebook pages. As more and more public debate moves online, and social media become the online equivalents of traditional town halls and public squares, it is crucial to the health of our democracy in the digital age that the Court affirms that First Amendment protections apply whenever the government opens up a public forum regardless of who owns the platform.

“Increasingly, the most important government-established forums for public discourse are online,” said Katie Fallow, senior staff attorney at the Knight Institute. “As more and more public officials use social media to communicate with their constituents, it’s important that the Court affirms that the core requirements of the First Amendment apply to these government-controlled digital spaces, even when they are established on privately owned platforms.”

The brief urges the Court to reaffirm its public forum doctrine, which recognizes that expressive spaces either owned or controlled by the government are subject to the First Amendment. Today, the government has moved online, regularly hosting virtual town halls and using social media such as Facebook and Twitter to explain policies and invite and enable the public to post comments and questions in response. These government-controlled forums are new and important venues for First Amendment-protected expression.

Earlier this month, in a case argued by the Knight Institute, the U.S. Court of Appeals for the Fourth Circuit ruled—in the first appeals court decision of its kind—that the First Amendment applies to government-run social media accounts. In May 2018, a federal trial court in New York held in Knight Institute v. Trump that President Trump’s blocking of critics from his Twitter account violated the First Amendment. The Trump administration has appealed that decision, and the case is currently pending before the U.S. Court of Appeals for the Second Circuit.

Read the brief here.

For more information, contact Lorraine Kenny, Communications Director, the Knight Institute at lorraine.kenny@knightcolumbia.org. 

About the Knight First Amendment Institute at Columbia University

The Knight First Amendment Institute is a non-partisan, not-for-profit organization established by Columbia University and the John S. and James L. Knight Foundation to defend the freedoms of speech and press in the digital age through strategic litigation, research, and public education. Its aim is to promote a system of free expression that is open and inclusive, that broadens and elevates public discourse, and that fosters creativity, accountability, and effective self-government.