Justice Kavanaugh, Technology, and the Future of Free Speech
The following post by CFJ director of public policy Ashley Baker was published on The Federalist Society blog:
In a case closely watched for its potential impact on the debate about tech companies' moderation of online content, the Supreme Court ruled 5-4 on whether a private corporation operating a government-mandated public-access cable channel is a “state actor” – that is, acting in a traditionally governmental role – and therefore subject to First Amendment constraints.
Manhattan Community Access Corp. v. Halleck involved a privately owned nonprofit corporation designated by New York City to operate a public-access channel on a cable system owned by Time Warner. The case arose when Manhattan Community Access Corp. (known as “MNN”) banned two individuals from airing programs on the channel. Halleck and Melendez then sued MNN on First Amendment grounds.
The United States Court of Appeals for the Second Circuit ruled for the content contributors, but the High Court reversed, holding that MNN is not subject to the First Amendment. Writing for the majority, Justice Brett Kavanaugh noted that operation of a public-access channel is not a traditionally governmental function – both public and private entities have historically operated such channels – and providing an open forum for public expression does not turn a private corporation into a vessel of the state.
The Supreme Court's decision comes as the public debate about free speech heats up, with lawmakers and the general public upset about social media practices and conservatives wary of what they see as discriminatory censorship of online content by Facebook, Twitter, Google, and the like.
There are important differences between the roles of these tech giants and MNN, but analysis of this case has nonetheless spilled over into the debate over online content moderation. Tech companies' concerns were allayed for now when the Court found that MNN was not constrained by the First Amendment.
That the majority opinion was authored by newly-confirmed Justice Kavanaugh is significant because some have speculated, based on his record as a lower court judge, that he will fill Justice Anthony Kennedy’s shoes on the issue of free speech. During Kennedy's three decades on the Court, he authored many of its First Amendment decisions and considered himself a fierce protector of free speech...