The January 16, 2019 and April 8, 2020 Trending Law Blog posts discussed cases in which the central issue was whether private entities (i.e., the operator of a public access television station and YouTube, respectively) could be deemed “state actors” — persons acting on behalf of a governmental body – for purposes of the First Amendment. In both cases, the courts held that the First Amendment does not prohibit the private abridgement of speech. On May 27, 2020, the United States Court of Appeals for the District of Columbia Circuit reached a similar decision in Freedom Watch, Inc., et al. v. Google Inc., et al.
In Freedom Watch, the plaintiffs, a conservative political interest group and political activist, alleged, among other things, that Google, Facebook, Twitter, and Apple “conspired to suppress conservative political views and violated the First Amendment.” The court of appeals rejected this claim, finding the plaintiffs did not adequately allege that the defendants could violate the First Amendment. The court stated:
In general, the First Amendment “prohibits only governmental abridgement of speech.” Manhattan Cmty. Access Corp. v. Halleck,139 S.Ct. 1921, 1928 (2019). Freedom Watch contends that, because the [Defendants] provide an important forum for speech, they are engaged in state action. But, under Halleck, “a private entity who provides a forum for speech is not transformed by that fact alone into a state actor.” Id. at 1930. Freedom Watch fails to point to additional facts indicating that these [Defendants] are engaged in state action and thus fails to state a viable First Amendment claim.
Although the court of appeals did not elaborate on what additional facts could have been alleged to establish that a private entity can be deemed a state actor for purposes of the First Amendment, the court did implicitly suggest that such facts could be alleged.
It remains to be seen when a court might hold that private entities can be sued for First Amendment violations, but, for now at least, that day has not yet arrived.
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For any question relating to this article, please contact Robert B. Nussbaum, Esq. at Saiber LLC.
Rob Nussbaum has lectured numerous times on legal issues and social media and how social media and other electronic evidence may be admitted into evidence at trial. He concentrates his practice in general commercial litigation and appears regularly in New Jersey federal and state courts.
For any questions relating to whether your website or social media presence can be used against you as a basis for personal jurisdiction, please contact Robert B. Nussbaum, Esq. at Saiber LLC.
The January 16, 2019 post – 
The June 14, 2018 post “
On March 26, 2019, the United States Court of Appeals for the Second Circuit heard oral argument in Knight First Amendment Inst. at Columbia University v. Trump, No. 18-1691 (2d Cir.), a case which will decide whether President Donald Trump can block people from seeing what he posts on Twitter. (See 
In 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).
The U.S. Supreme Court referred to its decision in Packingham v. North Carolina, 137 S. Ct. 1730 (2017) as one of the first cases “this Court has taken to address the relationship between the First Amendment and the modern internet.” In the case, the Court, citing the First Amendment’s Free Speech Clause, struck down as unconstitutional a North Carolina statute that made it a felony for a registered sex offender to use social media websites such as Facebook and Twitter. The Court also made several significant statements about social media and free speech.