Will Social Media Websites Become State Actors?

Image of censored stampIn Schulman v. Facebook.com, 2017 U.S. Dist. LEXIS 183110 (D.N.J. 2017), a federal district court in New Jersey dismissed a plaintiff’s lawsuit claiming that various media defendants censored his political speech on Facebook in violation of his constitutional rights.  The court held that “All of Plaintiff’s constitutional claims against all Defendants fail as a matter of law because Plaintiff fails to allege that Defendants are state actors” and the U.S. Constitution “only applies to governmental actors – and does not apply to private parties.”  A federal court in California reached a similar decision in Prager Univ. v. Google, LLC, 2018 U.S. Dist. LEXIS 51000 (N.D. Cal. 2018).

Whether Facebook, YouTube and other social media websites can censor their users will now be taken up by the Supreme Court of the United States which has agreed to hear an appeal in Manhattan Community Access Corp., v. Halleck, a case in which the U.S. Court of Appeals for the Second Circuit held that a private operator of a public access television station is a state actor subject to constitutional liability. The Supreme Court granted certiorari in the case on October 12, 2018 and oral argument has been scheduled for February 25, 2019.

If affirmed, the decision in the Halleck case involving public access TV could open other privately-owned entities, i.e., social media sites, to First Amendment challenges by users who claim their posts are improperly censored by social media websites – private companies –  merely because they provide a forum for public speech.

It will be interesting to see if the Supreme Court takes a broad and bold step that could potentially open the flood gates for lawsuits to be filed against social media sites or if the Court limits its decision just to the facts of Halleck.

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         For any questions relating to this article, please contact Robert B. Nussbaum, Esq. at Saiber LLC.