As Public Forums Move Online So Does the First Amendment

By
Katie Fallow
March 01, 2019

Earlier this week, the Supreme Court heard argument in a case that, on its face, appears to have nothing to do with free speech on the Internet. However, a broad ruling by the Court could have dire implications for the extent to which the First Amendment protects against censorship on government-run social media accounts and other government-operated online public forums. Based on the Justices’ questions, it is anybody’s guess which way they will rule. Given how much our communication with public officials has moved online in recent years, this is a case to watch. 

The lawsuit, Manhattan Community Access Corporation 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.