U.S. Supreme Court

Case Status


Docket Number


2018 Term


Questions Presented

1. Whether the Second Circuit erred in rejecting this Court’s state actor tests and instead creating a per se rule that private operators of public access channels are state actors subject to constitutional liability.

2. Whether the Second Circuit erred in holding— contrary to the Sixth and D.C. Circuits—that private entities operating public access television stations are state actors for constitutional purposes where the state has no control over the private entity’s board or operations.

Case Updates

Supreme Court agrees with U.S. Chamber that operating a public forum for speech does not make a private company a state actor, even where those operations are licensed or heavily regulated by the state

June 17, 2019

The Supreme Court issued a favorable decision holding that a private company does not qualify as a state actor subject to the First Amendment’s Free Speech Clause simply because it is otherwise heavily regulated or it operates a public forum for speech. This decision will help social-media platforms such as YouTube, Twitter, and Facebook avoid First Amendment liability and will help ensure that private businesses are not forced to associate with ideas and speakers they find objectionable.

The Supreme Court opinion emphasized that the First Amendment prohibits only governmental, not private, abridgment of speech. Although private companies sometimes qualify as state actors subject to the Constitution, when they exercise traditionally governmental functions, the Court explained that operating a public forum for speech is not a traditional governmental function. Certainly it is not an exclusive governmental function. The Court also reasoned that neither a governmental license nor extensive regulation transform a private company into a state actor. As a result, MNN does not qualify as a state actor subject to the First Amendment’s restrictions.

U.S. Chamber files amicus brief urging U.S. Supreme Court to hold that a company’s decision to open its private property for speech by the public does not make it a state actor subject to First Amendment scrutiny

December 11, 2018

Click here to view the Chamber’s brief.

Catherine E. Stetson, Colleen E. Roh Sinzdak, Benjamin A. Field of Hogan Lovells US LLP served as co-counsel for the U.S. Chamber of Commerce on behalf of the U.S. Chamber Litigation Center.

Case Documents