After the recent ruling in the Supreme Court, it will be hard to argue that social media platforms are public forums tied to First Amendment requirements.
The case appeared before The United States District Court for the Southern District of New York, who dismissed it in 2016 on the grounds that public access systems like MNN were state actors who could not regulate free speech. The Supreme Court reversed this decision, however, claiming that MNN does not traditionally and exclusively perform the functions of a government entity, and thus deemed it a private actor who is permitted to regulate speech on its channels with editorial discretion.
“…When a private entity provides a forum for speech, the private entity is not ordinarily constrained by the First Amendment because the private entity is not a state actor,” wrote justice Brett Kavanaugh in the decision. “The private entity may thus exercise editorial discretion over the speech and speakers in the forum.”
While the case deals directly with television, it sets a precedent for social media companies. Under this ruling, Facebook, Twitter, and other social platforms would not qualify as a state actor as they do not traditionally and exclusively perform a public function. Thus, they are free to regulate speech on their platforms.
“While the ruling itself doesn’t directly apply to social media, the Supreme Court actually reversed the 2nd Circuit ruling that declared MNN a public forum, and very strongly hinted that it’s ridiculous to think social media platforms could be considered public forums,” wrote Mike Masnick in an opinion piece on TechDirt.