As I wrote in my post about it, this seemed like a stretch as well, since the state's role in creating MNN was a key factor here, and that was not at all true with social media platforms. I also thought that the Supreme Court would likely rule narrowly and avoid the issue of social media platforms altogether -- though, given the political climate, I feared that the Supreme Court would say something stupid on this and create a new mess. Instead, the ruling, which came out earlier this week, went in the opposite direction. 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. And, for all the so-called "conservatives" who have been the most vocal in promoting the theory that social media sites are public fora governed by the 1st Amendment, it might surprise them to find that it was the so-called "conservative Justices" who decided this one, with Kavanaugh writing the opinion, joined by Roberts, Thomas, Alito and Gorsuch -- and Sotomayor writing the dissent, joined by Ginsburg, Breyer and Kagan.
Indeed, hysterically, it appears that a key argument made by the majority to argue against a finding of a public forum is one from one of the "conservatives" currently suing a platform. Stay tuned for that tidbit. But first, the decision itself. I was wrong in expecting the court to uphold the 2nd Circuit's ruling (and my fear was that they would apply it in a way that was too broad). But Kavanaugh and the majority make it clear that they see public forum doctrine to be very, very, very limited. And it doesn't apply to a public access TV network, even one created by the state.
Under the state-action doctrine as it has been articulated and applied by our precedents, we conclude that operation of public access channels on a cable system is not a traditional, exclusive public function. Moreover, a private en y such as MNN who opens its property for speech by others is not transformed by that fact alone into a state actor. In operating the public access channels, MNN is a private actor, not a state actor, and MNN therefore is not subject to First Amendment constraints on its editorial discretion.
The key to Kavanaugh's ruling is that to make a private en y a public forum, it needs to take over "powers traditionally exclusively reserved to the State." The "exclusively" part is what the majority focuses on.
It is not enough that the federal, state, or local government exercised the function in the past, or still does. And it is not enough that the function serves the public good or the public interest in some way. Rather, to qualify as a traditional, exclusive public function within the meaning of our state-action precedents, the government must have traditionally and exclusively performed the function.
The Court has stressed that “very few” functions fall into that category.... Under the Court’s cases, those functions include, for example, running elections and operating a company town.... The Court has ruled that a variety of functions do not fall into that category, including, for example: running sports associations and leagues, administering insurance payments, operating nursing homes, providing special education, representing indigent criminal defendants, resolving private disputes, and supplying electricity.
And, the majority says, running a TV station also does not qualify.
The relevant function in this case is operation of public access channels on a cable system. That function has not traditionally and exclusively been performed by government.
And that's pretty much the ballgame for those arguing for a public forum designation even for this public access channel created by the state. However, Kavanaugh does go further in highlighting why it would be ludicrous to argue that social media sites, for example, would qualify and be subject to the 1st Amendment. As the opinion notes, just hosting a forum for speech does not magically turn you into a government actor hosting a "public forum." And then Kavanaugh goes even further, directly saying that a private en y can moderate all they'd like:
By contrast, when a private en y provides a forum for speech, the private en y is not ordinarily constrained by the First Amendment because the private en y is not a state actor. The private en y may thus exercise editorial discretion over the speech and speakers in the forum. This Court so ruled in its 1976 decision in Hudgens v. NLRB. There, the Court held that a shopping center owner is not a state actor subject to First Amendment requirements such as the public forum doctrine....
The Hudgens decision reflects a commonsense principle: Providing some kind of forum for speech is not an activity that only governmental en ies have traditionally performed. Therefore, a private en y who provides a forum for speech is not transformed by that fact alone into a state actor. After all, private property owners and private lessees often open their property for speech. Grocery stores put up community bulletin boards. Comedy clubs host open mic nights. As Judge Jacobs persuasively explained, it “is not at all a near-exclusive function of the state to provide the forums for public expression, politics, information, or entertainment.”
And just to drive the point home:
In short, merely hosting speech by others is not a traditional, exclusive public function and does not alone transform private en ies into state actors subject to First Amendment constraints.
If the rule were otherwise, all private property owners and private lessees who open their property for speech would be subject to First Amendment constraints and would lose the ability to exercise what they deem to be appropriate editorial discretion within that open forum. Private property owners and private lessees would face the unappetizing choice of allowing all comers or closing the platform altogether. “The Cons ution by no means requires such an attenuated doctrine of dedication of private property to public use.” ... Benjamin Franklin did not have to operate his newspaper as “a stagecoach, with seats for everyone.” ... That principle still holds true. As the Court said in Hudgens, to hold that private property owners providing a forum for speech are constrained by the First Amendment would be “to create a court-made law wholly disregarding the cons utional basis on which private ownership of property rests in this country.” ... The Cons ution does not disable private property owners and private lessees from exercising editorial discretion over speech and speakers on their property
Reply With Quote
conservatives want to be victims so badly, it’s pathetic.
Why won't twitter and amazon let us organize more coups? 
at conservatives whining over Twitter and tiktok like some teenage girls
