, 14 tweets, 4 min read Read on Twitter
Lawsplainer: let's discuss this week's Supreme Court decision in Manhattan Community Access Corp. v. Halleck, a First Amendment case.

Does it impact the debate over how websites can/should moderate?

tldr: yes

/2 The Court decided Halleck 5-4, which is quite unusual for a First Amendment free speech case these days (though not for a Establishment Clause case). Kavanaugh wrote the opinion for Roberts, Alito, Thomas, and Gorsuch; Sotomayor wrote the dissent for everyone else.
/3 The issue at hand: New York law required cable companies to make available a public access channel for public use. Those public access channels are run by private companies. So are they "public", subject to the First Amendment, or "private," and not subject to it?
/4 This question goes to something called the "state action doctrine" -- only the "state" (the government) is restricted by the Constitution. Kavanaugh (in a classic display of answering the question by framing the issue) opens like this:
/5 Now, state action analysis is unbearably suspenseful, so I will turn to the end -- the 5-4 majority says that the public access channel here is a private entity and not engaged in state action, because running such a channel is not a "traditional, exclusive public function."
/6 What's interesting (to a huge law geek like me), and meaningful to the debate over whether and how websites should moderate, is how the majority got there, and how the dissent disagrees, and how they both treat some historic decisions constantly cited in the website debate.
/7 The majority identifies three areas where the Supreme Court has treated private actors as engaged in state action, and thus subject to the First Amendment:
/8 It was the first prong at issue in Halleck: is a public access channel a traditional exclusive public function?

Halleck's lawyers cited -- and critics of website moderation often cite -- Marsh v. Alabama, a 1946 case that treated a "company town" as a state actor.
/9 But the majority opinion blows past Marsh, putting it in a class of cases where "very few" functions like running elections or running a "company town" that can make a private entity treated as public.
/10 Significantly, the majority also flatly rejects the "if you make something that looks like a public form, it's a public forum for state action purposes." That was always a bad argument, and the Court unequivocally rejects it.
/11 In fact, the Court points out the flip side: making private entities into state actors destroys their ability to run their property the way they like. In a footnote, the majority noted that doing so could invade the First Amendment rights of the private actors.
/12 So. In the end, the majority says that running a public access cable channel is not a traditional and exclusive public function, so it's not state action when a private company does it. Treating private action as state action reduces liberty, the majority says.
/13 Now, the dissent strenuously objects, and it's 5-4. So doesn't that make this questionable law?

Sort of. It makes the precise holding tenuous -- but not a lot of the underlying concepts, which the dissent endorses.
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