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

Monday, June 17, 2019 - 3:00pm

In Manhattan Community Access Corp. v. Halleck, the Supreme Court issued a 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.  The Chamber filed a brief at the merits stage supporting this reasoning.  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.