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First Amendment Constraints Don't Apply To Private Platforms, Supreme Court Affirms (theverge.com) 337

In a case that could have potential implications for social media, the Supreme Court has ruled that a nonprofit running public access channels isn't bound by governmental constraints on speech. "The case, which the conservative wing of the court decided in a split 5-4 ruling, centered around a Manhattan-based nonprofit tasked by New York City with operating public access channels in the area," reports The Verge. "The organization disciplined two producers after a film led to complaints, which the producers argued was a violation of their First Amendment speech rights. The case turned on whether the nonprofit was a 'state actor' running a platform governed by First Amendment constraints." From the report: In a decision written by Justice Brett Kavanaugh, the conservative justices ruled that the First Amendment constraints didn't apply to the nonprofit, which they considered a private entity. Providing a forum for speech wasn't enough to become a government actor, the justices ruled. Nowhere is the internet or social media discussed in the ruling, but the idea that the decision could be used to penalize social media companies was raised by groups like the Electronic Frontier Foundation. The groups argued that too broad of a decision could prevent other private entities like YouTube and Twitter from managing their platforms by imposing new constraints them. The Internet Association, a trade group, said last year that such a decision could mean the internet "will become less attractive, less safe and less welcoming to the average user." But today's decision seems to assuage those concerns. The liberal justices on the court, in a dissenting ruling, argued instead that the terms under which the nonprofit ran the channels for the city should have bound it to First Amendment constraints. The nonprofit, Justice Sonia Sotomayor wrote, "stepped into the City's shoes and thus qualifies as a state actor, subject to the First Amendment like any other."
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First Amendment Constraints Don't Apply To Private Platforms, Supreme Court Affirms

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  • by alzoron ( 210577 ) on Monday June 17, 2019 @05:49PM (#58778656) Journal

    I would argue that even though the private company itself isn't violating the first amendment that the government is by using that company to provide services.

    • Precisely. It's an interesting growth of the Government since the mid 1960s - the rise of the Administrative State, and the sluffing off of responsibilities. First with the Senators/Congressmen shirking their duties and allowing bureaucrats to define the actual rules and regulations related to laws (the heart of the matter), and now with entrenched bureaucracies shirking their duties to others, without worrying about whether or not they achieve the stated Constitutional rules. John Marini has several goo
  • It will have to be by the collusion and monopoly laws.
    And i bet there is quite a big collusion case to be made, given even payment processors are involved, so you can't even start to make a competitor with free speech.

    • And i bet there is quite a big collusion case to be made, given even payment processors are involved, so you can't even start to make a competitor with free speech.

      This load of shit gets trotted out constantly. The reality is, there are plenty of varyingly filthy places on the internet, where one can be as homophobic, hateful, bigoted, and racist as they want. 4chan comes to mind.

      The problem is, these people aren't satisfied being confined to their little cesspools and want to spew their vitriol on Facebook/Twitter/Google's dime. Sorry, it doesn't work like that. And if you believe it does, I'd like to visit your home and use it to host my "Any Democrat 2020" part

      • by Z80a ( 971949 )

        I'm talking about the several cases where people tried to create competing platforms, just to have the monetization shut down by things such as mastercard.
        There is a massive collusion in that tiny space in california, and while they're doing "nazi hunting" now, they might just expand the definition of nazi to mean "everyone trying to compete with us".
        Give megacorporations power like those, and watch they use those powers, even against you, specially against you.

  • by drnb ( 2434720 ) on Monday June 17, 2019 @05:57PM (#58778708)
    Fine, if the 1st amendment does not apply to private non-government entries, and those entities do engage in censorship or limiting free speech, then remove their telecommunications common carrier status (or is it some other status) that shields them from liability regarding what is posted to their systems.

    You can't argue on the one hand that we are not liable because we do not exercise editorial control and then on the other hand silence individuals because your organization does not like their message. If they want liability their editorial control needs to be limited to the legally defined exceptions to the first amendment. Incitement to imminent and reasonably expected violence, etc. Note this is actual violence, not the "violence" of someone's feelings got hurt.
    • by phantomfive ( 622387 ) on Monday June 17, 2019 @06:07PM (#58778756) Journal

      Fine, if the 1st amendment does not apply to private non-government entries, and those entities do engage in censorship or limiting free speech, then remove their telecommunications common carrier status (or is it some other status) that shields them from liability regarding what is posted to their systems.

      They weren't running a forum where anyone could post. An analogy here would be to an editor at a newspaper firing a junior reporter. The newspaper has free speech, but that doesn't mean the reporter can publish whatever he/she wishes.

      Common carrier states (or some other status) is a separate issue.

      • by drnb ( 2434720 )

        Fine, if the 1st amendment does not apply to private non-government entries, and those entities do engage in censorship or limiting free speech, then remove their telecommunications common carrier status (or is it some other status) that shields them from liability regarding what is posted to their systems.

        They weren't running a forum where anyone could post. An analogy here would be to an editor at a newspaper firing a junior reporter. The newspaper has free speech, but that doesn't mean the reporter can publish whatever he/she wishes. Common carrier states (or some other status) is a separate issue.

        I am making a larger point since this decision can establish precedent beyond the narrow scope of this organization.

    • by DRJlaw ( 946416 ) on Monday June 17, 2019 @06:11PM (#58778786)

      Fine, if the 1st amendment does not apply to private non-government entries, and those entities do engage in censorship or limiting free speech, then remove their telecommunications common carrier status (or is it some other status) that shields them from liability regarding what is posted to their systems.

      Done. They're not common carriers. The vast majority of private entities, including social media companies, never were common carriers.

      You can't argue on the one hand that we are not liable because we do not exercise editorial control and then on the other hand silence individuals because your organization does not like their message.

      Yes you can. The communications decency act [eff.org] says that you cannot treat a private entity on the internet (an "information service provider") as if they were the speaker of information that is submitted and displayed entirely at the direction of a user (an "information content provider"). "This legal protection can still hold even if a blogger is aware of the objectionable content or makes editorial judgments."

      It's been that way on TV [hollywoodreporter.com], in newspapers [hollywoodreporter.com], and billboards [ajc.com], so what is your basis for saying that you can't argue that only in connection with the Internet?

      If they want liability their editorial control needs to be limited to the legally defined exceptions to the first amendment.

      That's not the law. And that law's not going to change any time soon.

    • then remove their telecommunications common carrier status

      Err laws do not work like that. Being a common carrier or not doesn't somehow magically make you "the government", you know that pesky little thing the 1st amendment is actually restricted to. I mean the first 5 words are "Congress shall make no law".

      • by drnb ( 2434720 )

        then remove their telecommunications common carrier status

        Err laws do not work like that. Being a common carrier or not doesn't somehow magically make you "the government", you know that pesky little thing the 1st amendment is actually restricted to. I mean the first 5 words are "Congress shall make no law".

        No, but asking the government for immunity from liability does open the door to being restricted. Quid pro quo.

    • by Xenx ( 2211586 )
      Non-physical violence is a real thing. There are real scarring effects for the people involved. Effects that are just as bad, potentially worse, as physical violence. Lets assume, for arguments sake, you accept that non-physical violence is real. But, you believe that there is a difference between non-physical violence and "someone's feelings got hurt." That argument might sound reasonable. Lets make that same comparison in terms of physical violence. Do you see a difference between someone hitting someone
      • by drnb ( 2434720 )
        There is no threshold for a physical attack. Assault is assault in court.

        Where to put the line, between "sticks and stones" and "words", between "opinion" and "slander", etc. We have a lengthy legal tradition that has drawn some good lines.
        • by Xenx ( 2211586 )
          As I mentioned before, there are non-physical forms of violence. Physical violence isn't the only recognized form of violence. There is legal precedent for it, there are dictionary definitions that support it, and the WHO specifically recognizes psychological violence.
          • Which is fine, but it cannot be a "workaround" for the First Amendment.

            • by Xenx ( 2211586 )
              In theory, it wouldn't be a workaround. It would be working as intended in a more enlightened society. One where we realize you can't be an asshole to people to the point where it fucks them over mentally.

              Now, again... I'm merely talking about this because it's a real problem. Serious harm can and is done to others under the guise of free speech. People need to think about these issues. The US government was set up in such a way that it can be updated as needed by the people. I'm not saying it's definite
      • This is why sjws get mocked for being completely untethered from what words actually mean. Yes, words can traumatize someone, though I'd argue that's because of a failure of their schools and parents in the vast majority of cases, but that doesn't make it violence. That's just not what that word means. And the entire movement to call it that is a disingenuous attempt to shut down speech that's merely offensive and clearly not traumatizing to reasonable people. Speech can't be rape either, and nonphysical vi
        • by Xenx ( 2211586 )
          Just because you don't want to recognize it as violence, doesn't mean it isn't recognized as violence by society. There is both legal precedent that backs up non physical methods of violence, and dictionary definitions that allow for violence that isn't physical. Even WHO recognizes psychological violence.
      • by Z80a ( 971949 )

        I'm pretty sure physical violence can do a lot more damage to someone than words.
        You know, breaking limbs, putting the person on a wheelchair forever, all sorts of terrible brain damages, and the old terrifying just plain killing.

    • by cob666 ( 656740 )
      The first amendment right to freedom speech has NOTHING to do with common carrier status. What you are referring to is most likely the safe-harbor provisions of the DMCA. But again, has NOTHING to do with the first amendment. Content providers, social media and forums are not beholden to the first amendment, they are generally not held liable for content or posts provided by subscribers or third party providers and yet, they have every right to filter or remove content and to dictate WHAT content is allo
      • by drnb ( 2434720 )
        You are misunderstanding my point, which is when you go to the government for money or a favor they are free to add conditions, such as the condition to respect free speech in a 1st amendment fashion. Immunity from liability for free speech, quid pro quo.

        Of course the bill or rights do not apply directly, but quid pro quo opens the door for essentially similar protections.
        • by DRJlaw ( 946416 )

          You are misunderstanding my point, which is when you go to the government for money or a favor they are free to add conditions, such as the condition to respect free speech in a 1st amendment fashion. Immunity from liability for free speech, quid pro quo.

          The fun part is that you think that there is "the government," that these sites have to individually ask the Federal government for money, and that the states and localities that they do ask for specific tax breaks give a hoot about "the condition to respec

  • For a cake shop (Score:5, Insightful)

    by Jarwulf ( 530523 ) on Monday June 17, 2019 @06:03PM (#58778732)
    That is privately owned and only 1 out of 1000s in the area that can serve you just as well. Then the government should give you a wide latitude on who you want to serve. OTOH if you are a monopoly/oligopoly that has in practice near total control over a platform which is essential to advance and communicate on a private, professional, and political level in today's world and has gobbled up billions in public funding....not so much.
    • by DRJlaw ( 946416 )

      OTOH if you are a monopoly/oligopoly that has in practice near total control over a platform which is essential to advance and communicate on a private, professional, and political level in today's world and has gobbled up billions in public funding....not so much.

      Name one and support your argument for it. Facebook is essential and has gobbled up billions in public funding? Youtube? Puh-lease.

        • by DRJlaw ( 946416 )

          I somehow missed the part where you retroactively changed the conditions to "or."

          But then again you want to retroactively add conditions to local and state deals, so at least you're consistent.

          • by Jarwulf ( 530523 )
            Try to start a business or run for office or become an opinion leader without the internet these days and see how far you get. Bet you it'll be a bit more inconvenient to driving to the next cake store. (discounting the fact the drivers behind cake shop complaints largely are not random inconvenienced customers but seasoned activists who actually seek out renegade cake shops to target)
            • by DRJlaw ( 946416 )

              OTOH if you are a monopoly/oligopoly that has in practice near total control over a platform which is essential to advance and communicate on a private, professional, and political level in today's world and has gobbled up billions in public funding....not so much.

              Try to start a business or run for office or become an opinion leader without the internet these days and see how far you get. Bet you it'll be a bit more inconvenient to driving to the next cake store. (discounting the fact the drivers behind cak

              • by Jarwulf ( 530523 )
                The content delivery/social media portion of the internet IS an oligopoly in the sense that they all act in concert toward a common ideological direction. It essentially IS the internet for a large portion of the population. (I don't know why you're singling out Facebook when I meant the cartel itself). Its time for you to start ponying up evidence. You keep denying it. Name 1 major corporation or modern thought or political leader in the West who does not use directly or through their employees a Google/F
                • by DRJlaw ( 946416 )

                  The content delivery/social media portion of the internet IS an oligopoly in the sense that they all act in concert toward a common ideological direction. It essentially IS the internet for a large portion of the population. (I don't know why you're singling out Facebook when I meant the cartel itself).

                  The entire content delivery/social media portion of the internet Is an oligopoly and have a common ideologial direction?

                  Name 1 major corporation or modern thought or political leader in the West who does not

              • by Jarwulf ( 530523 )
                Hannity is the only political commentator host in America according to DRJ
                • by DRJlaw ( 946416 )

                  Hannity is the only political commentator host in America according to DRJ

                  The content delivery/social media portion of the internet IS an oligopoly in the sense that they all act in concert toward a common ideological direction

                  So sayeth Fox News, and Brietbart, and Gab, and 4chan, and...

                • by DRJlaw ( 946416 )

                  Don't forget Limbaugh [washingtonpost.com]! Not-very-openly rejecting anti-free-trade advertising until 2016, when suddenly he was forced to accept Trumpism or become irrelevant.

    • OTOH if you are a monopoly/oligopoly that has in practice near total control over a platform which is essential to advance and communicate on a private, professional, and political level

      If you are a monopoly/oligopoly then you should be broken up per antitrust laws.

  • by schwit1 ( 797399 ) on Monday June 17, 2019 @06:18PM (#58778832)

    The ruling says the government can make an end-run around its constitutional limits just by outsourcing the job to a third party.

    • There are strict federal laws that exist to prevent precisely what you are suggesting.

    • by Chromal ( 56550 ) on Monday June 17, 2019 @07:09PM (#58779122)
      That was my fear upon first read as well, something like, "Fascism is a public-private collusion to undermine civil liberties." In that light, how is this different than the government rationale that a reasonable expectation of a private citizen's Forth Amendment protections does not extend out into "the cloud" where metadata and data about one's activities, movement, social graph, communications, etc. are all stored without explicit consent and beyond reach or control and generally available without a warrant or notification to the government and indeed to third (or "second") parties. Why wouldn't this ruling, at least applied broadly by yokel governments elsewhere, risk a further erosion of civil liberty. "That's not a public square for speech because we sold the square last year and are now leasing from its new private ownership for the public's enjoyment." When Constitutional absolutes seem to be sidestepped, it seems like another slip down the slope of civil rights regression.
    • Comment removed based on user account deletion
    • by AmiMoJo ( 196126 )

      The ruling (linked in the summary) actually addresses that point.

      The producers argued that the exclusive contract with the government made it a state actor, but the court noted that a contract, exclusivity or granted monopoly is not enough to grant the state actor designation.

      In fact the only applicable test is if the company is providing a service that is both traditionally and exclusively provided by government, which excludes almost everything.

  • ... to figure out.

    Constitutional amendments simply reiterate the obvious back to the government.

    For instance, the 2A, "shall not infringe," applies to the federal government. States can do a hell of a lot with that kind of latitude.

    The 1st amendment forbids the government from suppressing free speech.

    Libraries can demand essentially NO speech because a library is not the federal government.

    The question posed here is simply, "is the non-profit the same as the federal government?"

    Apparently it is, and isn't i

  • What the fsck? (Score:5, Insightful)

    by rsilvergun ( 571051 ) on Monday June 17, 2019 @07:04PM (#58779100)
    It's a public access network. Literally the gov't just outsourced a gov't run public access system. It's one thing for YouTube to get a pass because they're a private company, but does this mean that all the gov't has to do is outsource something and they're free and clear from any 1st amendment violations

    Also, this was a 5-4 decision thanks to Trump's nominees. I know this is gonna catch me some flak but what the hell, I got Karma to burn: Are all you Free Speech Warriors gonna be there for the next election to vote against Trump over this? Or are you all just talk? If you are I guess that's Ok, You are Free Speech Warriors after all.
    • by AHuxley ( 892839 )
      Re "because they're a private company"
      The fun part is about to begin.
      Social media was not responsible for every comment, image, cartoon, link, review, quote due to been utility like in the past.
      As a publisher that owns everything all users did, the social media brand is now responsible?
  • This Supreme Court ruling is bad news for Burning Man: the Bureau of land management has said that they may hire private security firms to do warrantless searches on persons and vehicles at all entry points to the event. If the security companies find contraband, they will be directed to report those to police . I have done some research, and there seems to be no Supreme Court rulings that exactly apply to this, until now. I was able to findrulings from two state Supreme Courts, one in Hawaii and one in Il

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