Tucker Higgins | CNBC | Source URL
The Supreme Court has agreed to hear a case that could determine whether users can challenge social media companies on free speech grounds.
The case, Manhattan Community Access Corp. v. Halleck, No. 17-702, centers on whether a private operator of a public access television network is considered a state actor, which can be sued for First Amendment violations.
The case could have broader implications for social media and other media outlets. In particular, a broad ruling from the high court could open the country's largest technology companies up to First Amendment lawsuits.
That could shape the ability of companies like Facebook, Twitter and Alphabet's Google to control the content on their platforms as lawmakers clamor for more regulation and activists on the left and right spar over issues related to censorship and harassment.
The Supreme Court accepted the case on Friday. It is the first case taken by a reconstituted high court after Justice Brett Kavanaugh's confirmation earlier this month.
On its face, the case has nothing to do with social media at all. Rather, the facts of the case concern public access television, and two producers who claim they were punished for expressing their political views. The producers, DeeDee Halleck and Jesus Melendez, say that Manhattan Neighborhood Network suspended them for expressing views that were critical of the network.
In making the argument to the justices that the case was worthy of review, attorneys for MNN said the court could use the case to resolve a lingering dispute over the power of social media companies to regulate the content on their platforms.
While the First Amendment is meant to protect citizens against government attempts to limit speech, there are certain situations in which private companies can be subject to First Amendment liability. Attorneys for MNN have made the case that social media companies are clearly not government actors. But in raising the question, they have provided the Supreme Court an opportunity to weigh in.
"We stand at a moment when the very issue at the heart of this case—the interplay between private entities, nontraditional media, and the First Amendment—has been playing out in the courts, in other branches of government, and in the media itself," attorneys for MNN wrote in their final plea to the justices to take up the case.
A ruling against MNN on the broad question it has asked the court to consider could open social media companies to First Amendment suits, which would force them to limit the actions they take to control the content on their platforms.
The court could also rule more narrowly against MNN in a way that does not impact the companies.
The case is likely to get extra attention as it moves forward given Republican lawmakers' increasing attacks against social media companies for perceived partisanship. Those attacks have raised the specter that the court, which has served as a bulwark for conservative expression, could step in.
Some observers have expressed caution, saying that the justices are unlikely to rule in a way that could substantially impact social media companies.
Michael Pachter, a former tax attorney who covers Twitter as an analyst at Wedbush Securities, said he thought it was "extremely unlikely" that the court will issue a ruling that hamstrings social media companies, particularly given the court's deference to business interests.
If the court does place serious limits on how the companies can restrict the speech on their platforms, he said, it would make the networks more hostile, alienating their users and advertisers.
"[Twitter] is an uncivil place as it is," Pachter said. "But it will become less civil."
Courts in California and New Jersey have weighed in on the issue, finding that social media companies don't constitute state actors subject to First Amendment liability. A federal judge in New York ruled in May that the First Amendment protected users interacting with parts of Twitter, including the president's feed. But that ruling did not apply to Twitter as a whole.
The Supreme Court addressed a related issue in June 2017. In Packingham v. North Carolina, No. 15-1194, the court struck down a state law that prohibited sex offenders from accessing social media sites. In his opinion for the court, Justice Anthony Kennedy, who retired over the summer, referred to social media sites as a "modern public square." But the court's decision left important questions about what exactly that meant up in the air.
Conservatives allege censorship
While the justices tend to describe themselves as being apolitical, the court of Chief Justice John Roberts has shown a distinct preference for speech cases that concern conservative ideology, according to an empirical analysis conducted by researchers affiliated with Washington University in St. Louis and the University of Michigan.
The analysis found that the justices on the court appointed by Republican presidents sided with conservative speech nearly 70 percent of the time.
"More than any other modern Court, the Roberts Court has trained its sights on speech promoting conservative values," the authors found.
Polls show that both Democrats and Republicans believe that social media companies censor their users, however, the issue swings heavily conservative. Eighty-five percent of Republicans believe that social media companies censor speech the companies find objectionable, compared with 62 percent of Democrats, according to a June survey conducted by the Pew Research Center.
The survey also found that 4 in 10 Americans believe that the companies favor liberal speech, versus just 1 in 10 who believes the companies favor conservative speech.
In August, President Donald Trump blasted Google for allegedly suppressing conservative speech. In a post on Twitter, Trump wrote that "they are controlling what we can & cannot see. This is a very serious situation-will be addressed!"
Rep. Devin Nunes, R-Calif., the conservative chairman of the House Intelligence Committee, in July accused Twitter of censorship and threatened legal action against the company.
Perhaps most dramatically, Facebook, YouTube, Apple and the music platform Spotify removed content from right-wing conspiracy theorist and provocateur Alex Jones in August, accusing the talk show host of violating their terms of service. Indeed, MNN cited Jones's removal in a legal brief, saying it was an example of the heightened attention to the issue of First Amendment rights online.
The major social media companies, which either did not respond or declined to comment to CNBC, have said they do not censor speech based on political ideology.
In August, as the uproar from conservatives reached a fever pitch, Twitter CEO Jack Dorsey called into the radio show hosted by conservative commentator Sean Hannity.
"We do not shadow ban according to political ideology or viewpoint or content. Period," Dorsey said at the time.
For its part, Google released a statement saying that its search feature "is not used to set a political agenda and we don't bias our results toward any political ideology."
During an April hearing before the Senate's Commerce and Judiciary Committees, Facebook CEO Mark Zuckerberg was grilled by Sen. Ted Cruz, R-Texas, about whether Facebook considered itself a "neutral public forum."
"There are a great many Americans who I think are deeply concerned that that Facebook and other tech companies are engaged in a pervasive pattern of bias and political censorship," Cruz said.
In response, Zuckerberg said that Facebook is a "platform for all ideas."