SCOTUS Ruling Could Let Tech Platforms Avoid First Amendment Constraints


Professor Abner Greene provided input on a recent ruling by the Supreme Court detailed in The National Law Journal. The ruling redefines when private companies can be treated like government entities under the First Amendment and may lessen restraints on how tech companies handle free speech issues.

Ruling in Manhattan Community Access Corp. v. Halleck, the high court decided that in most instances, private companies cannot be regarded as “state actors” that can be penalized for violating free speech rights.

Kavanaugh said that the way to determine whether a private company takes on the attributes of a “state actor” is to what extent it uses “powers traditionally exclusively reserved to the State.” That narrow definition may let tech companies off the hook when it comes to restraints on how they handle free speech issues. Kavanaugh did not mention any companies by name in the decision.

Fordham University School of Law professor Abner Greene, a First Amendment expert, said Monday, “If you are Facebook, you are going to say this decision is good.” Practically speaking, Greene said Facebook “can have carte blanche to allow hate speech or delete hate speech” because of its status as a private actor. Facebook in March announced a ban on “praise, support and representation of white nationalism” on its pages and on Instagram, the photo-sharing site.

Greene noted that critics of Facebook and other platforms have suggested that they be considered public forums akin to government entities and therefore subject to First Amendment rules that forbid discrimination based on content. Facebook and other tech companies may still be subject to other kinds of regulation such as antitrust, he added.

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