Free Speech Rights Do Not Exist in the Private Sector

Internet platforms, especially dominant social media arenas, are now the populace’s principal venues for personal, community, business and political communication. With the growth of social media, platform users benefitted from massive reach and ignored the potential perils of oligarchies. Now we hear howls about some users being excluded from social media and accusations of violation of “free speech rights.”

Well, there is no such thing as free speech rights in the private sector. With some specific exceptions (such as your shouting “fire!” in a crowded theater when you know there is none, engaging in libel, or making serious threats) government is prohibited by the First Amendment of the U.S. Constitution from abridging your freedom of speech. The Constitution says nothing about private individuals or entities choosing not to propagate speech they do not like for whatever reason. So, if you are banned from a social media platform, at present you are probably out of luck. On June 17, 2019, the U.S. Supreme Court may have cemented this state of affairs.

MNN v. Halleck

Manhattan Community Access Corp., also known as Manhattan Neighborhood Network (MNN), is a non-profit public-access television network serving New York City. As a community media center, it offers media production, education, and distributions services for Manhattan residents and community organizations. MNN is the entity New York City chose to operate the public access channels on Time Warner’s cable system in Manhattan. Its website says that MNN’s purpose is,

…to ensure the ability of Manhattan residents to exercise their First Amendment rights through moving image media to create opportunities for communication, education, artistic expression and other non-commercial uses of video facilities on an open and equitable basis.

DeeDee Halleck and Jesus Papoleto Melendez, Manhattan residents and participants in MNN’ activities, produced a film called The 1% Visits El Barrio; Whose Community? The 1% refers to the politicians, government agency representatives, and corporate officials who were invited to the grand opening of the Barrio Firehouse (a former firehouse on East 104 Street that MNN converted into television studios), to the exclusion of “the 99%” Papolete Melendez says he represents. The film did air on MNN, but was removed, and Melendez barred from using MNN’s facilities, due to viewers’ complaints over inappropriate content in the film, according to MNN.

MNN Halleck Case
Video by Dee-Dee Halleck and Jesus Melendez that resulted in the MNN v. Halleck lawsuit

Halleck and Melendez were not pleased, and filed a lawsuit, against MNN, claiming the network violated their free speech protections under the First Amendment of the U.S. Constitution. The District Court dismissed the claim on the grounds that MNN is not government but a private entity. The Second Circuit State Court of Appeals reversed the lower-court decision saying MNN was a “state actor,” since it was designated by New York City as the community access network.

The U.S. Supreme Court heard arguments on Manhattan Community Access Corporation et al v. Dee-Dee Halleck et al in February 2019, and issued its decision on June 17, 2019. Justices Kavanaugh (delivering the majority opinion), Roberts, Thomas, Alito, and Gorsuch did not view MNN as a state actor subject to First Amendment responsibilities. Justices Sotomayor (delivering the dissenting opinion), Ginsburg, Breyer, and Kagan did not agree.

Justice Kavanaugh indicated in his remarks that this decision applies only to the case at hand. However, his concluding statement contains broader implications.

It is sometimes said that the bigger the government, the smaller the individual. Consistent with the text of the Constitution, the state-action doctrine enforces a critical boundary between the government and the individual, and thereby protects a robust sphere of individual liberty. Expanding the state-action doctrine beyond its traditional boundaries would expand governmental control while restricting individual liberty and private enterprise. We decline to do so in this case.

MNN is a private entity that operates public access channels on a cable system. Operating public access channels on a cable system is not a traditional, exclusive public function. A private entity such as MNN who opens its property for speech by others is not transformed by that fact alone into a state actor. Under the text of the Constitution and our precedents, MNN is not a state actor subject to the First Amendment.

Justice Sotomayor and her colleagues in their dissenting opinion argued that although MNN is indeed private, government rents it. The situation would be akin to government renting a billboard to communicate with passersby, then excluding from that billboard messages it did not like. The billboard is private, but the communicator is not.

This is a case about an organization appointed by the government to administer a constitutional public forum. (It is not, as the Court suggests, about a private property owner that simply opened up its property to others.) New York City (the City) secured a property interest in public-access television channels when it granted a cable franchise to a cable company. State regulations require those public-access channels to be made open to the public on terms that render them a public forum. The City contracted out the administration of that forum to a private organization, petitioner Manhattan Community Access Corporation (MNN). By accepting that agency relationship, MNN stepped into the City’s shoes and thus qualifies as a state actor, subject to the First Amendment like any other.

The Conservative/Liberal Divide

As often happens “conservative” justices and “liberal” justices disagreed, as indicated in their decisions. Commentators disagreed as well.

Property and free speech rights both scored a big victory at the Supreme Court this week, when the Court decided Manhattan Community Access Corp. v. Halleck. Although the facts of this case focus narrowly on public access television networks, the Supreme Court’s decision has significant implications for all property owners, the internet, and social media more specifically.  The Pacific Legal Foundation, June 17, 2019.

The Court is unconvinced by the fact that the private company running New York’s public access channel was specifically selected and is heavily regulated by the city government. And while the dissent, authored by Justice Sotomayor, disagrees with the majority about whether the facts of the case reflect a government property interest in the forum at issue, it largely signs onto the idea that property rights precede political rights.  MerionWest, June 23, 2019.

The First Amendment only limits governmental actors—federal, state, and local—but there are good reasons why this should be changed. Certain powerful private entities—particularly social networking sites such as Facebook, Twitter, and others—can limit, control, and censor speech as much or more than governmental entities. A society that cares for the protection of free expression needs to recognize that the time has come to extend the reach of the First Amendment to cover these powerful, private entities that have ushered in a revolution in terms of communication capabilities.”  David L. Hudson, Jr, In the Age of Social Media, Expand the Reach of the First Amendment,” The American Bar Association.

Interestingly, there appears to be fans of free speech for owners of social media platforms and fans of free speech for non-owner users of such platforms. Also, what are “political rights?” Further, the U.S. Constitution Bill of Rights serves only to protect individual liberties against tyrannical behavior by government; therefore, it seems awkward to call for extending the reach of the First Amendment to private entities regardless of how big or powerful such entities become.

So what to do?

The Just Vote No Blog likes the Court’s decision and Justice Kavanaugh’s suggestion that the bigger the government the smaller the individual, and thus a narrow definition of “state actor” serves the cause of liberty. If some of us are harmed by social media curbing our ability to reach community and customers, well, that is the price we must all pay for ignoring the growth of enticing behemoths. Competition is a good antidote to institutional transgressions, but there cannot be competition in an age of gigantic oligarchies.

Perhaps in a post-MNN vs. Halleck world folks that hold views different from those preferred by the dominant social media players need to imagine new ways of outreach. Efforts toward enforcing existing but largely ignored antitrust laws would also help in the blossoming of a wider variety of platforms.