
First Amendment doesn’t apply to private operator running public-access channels - howard941
https://www.theverge.com/2019/6/17/18682099/supreme-court-ruling-first-amendment-social-media-public-forum
======
jakelazaroff
It's a catchy headline, but doesn't accurately reflect what happened. The
question was whether a private cable operator that _runs public-access
channels on behalf of a municipality_ is acting as a private platform, or as a
"state actor".

The court ruled that it is indeed acting as a private platform, and therefore
"not subject to First Amendment constraints on its editorial discretion".

~~~
lithos
Worth mentioning that public access channels are normally something like your
local version of PBS. For Brits maybe something like BBC but at much smaller
regional scale.

In many cases they are extensively funded by tax payers.

___

And the fact that these were channels pretty much in existence due to
taxpayers. Made them a great target to turn more places into a public forum,
in hopes of it also having a ruling that affects social media.

Which is why people were worried about it affecting social media.

~~~
pmoriarty
_" public access channels are normally something like your local version of
PBS. For Brits maybe something like BBC but at much smaller regional scale."_

I don't think that's accurate at all. Public access channels are TV stations
which will broadcast content created by any member of the community. I don't
know how they are now, but decades ago in NYC all sorts of bizarre shit got
broadcast on public access, from weird conspiracy theories to borderline
pornographic material to awful performance art project some NYU or SVA student
slapped together. The main thing all the content had in common was that it was
ultra-low-budget, since it was usually created by a single person on a cheap
video camera.

It was absolutely nothing even remotely like the BBC or PBS, which are both
organizations with significant funding and a highly professional staff of
people working for them. Most importantly, the BBC and PBS create their own
content, while on public access channels the content is created by members of
the community. Usually, on public access there's some kind of signup roster
where you as a community member put your name in a free slot, and when your
time comes you get to play your video. Some public access stations might let
community members use their studios or their equipment, but for the most part
you're on your own.

The closest thing I could compare it to would be youtube, but without any
advertising or search or choice of what to watch. As a viewer, you just had to
watch whatever video a random community member played at the time you turned
your TV to that station. 99.9% of the time, the content was absolutely bottom
of the barrel amateur garbage which probably had close to zero viewers.
Frankly, I'm surprised these stations still exist, as these days most people
probably get their random user-generated videos from youtube.

------
enitihas
It looks like US supreme court is as clearly divided as the US political
parties. A large number of US supreme court critical decisions are 5-4
decisions. And a large majority of them have clear partisan divides. If only
Obama had his chance to appoint Scalia's successor, the US supreme court might
have been very different.

~~~
hackeraccount
[https://www.washingtonpost.com/news/posteverything/wp/2018/0...](https://www.washingtonpost.com/news/posteverything/wp/2018/06/28/those-5-4-decisions-
on-the-supreme-court-9-0-is-far-more-common/?utm_term=.6efc49b027e0)

"since 2000 a unanimous decision has been more likely than any other result —
averaging 36 percent of all decisions. Even when the court did not reach a
unanimous judgment, the justices often secured overwhelming majorities, with
7-to-2 or 8-to-1 judgments making up about 15 percent of decisions. The 5-to-4
decisions, by comparison, occurred in 19 percent of cases"

~~~
enitihas
I am not saying 5-4 is the most likely result, just that even 19% of decisions
being 5-4 is huge.

~~~
tomatotomato37
There's only 5 combinations of yes/no votes you can get with 9 indistinct
entities, so 20% isn't unusual at all

~~~
jakelazaroff
True, although if you consider each entity distinct there are 512 combinations
and the one split along partisan lines is probably vastly overrepresented
among other 5-4 possibilities.

------
ghaff
The clear conservative/liberal decision split is interesting. I can
rationalize why it is that way in retrospect. (Private companies, even non-
profits doing a job for the government, have a right to curtail the use of
their resources for most reasons.) But I'm not sure I'd have necessarily
predicted it.

It's probably worth noting that the EFF filed an amicus brief essentially
arguing against (as I understand it) a broad definition of state actors
because of the benefits of having both moderated and unmoderated platforms.
So, presumably, this ruling was more in line with their argument than the
dissent.

~~~
ApolloFortyNine
If the title was something along the lines of "Agreeing with the EFF, Supreme
court rules First Amendment doesn't apply to private platforms" I think you
would see very different responses.

People here usually have a lot of respect for the EFF (rightfully so), but I
think people in these comments are focusing more on what 5 judges voted than
the issue at hand.

------
hprotagonist
The issue the majority ruled on was whether the private party in this case had
"stepped into the government's shoes."

5 Justices said it had not. That doesn't surprise me very much.

~~~
ortusdux
Specifically, at question was whether or not a private non-profit, appointed
by the state to operate in place of a public org, was bound by the same 1st
amendment requirements.

It does bring up some interesting questions. Could a governor outsource
specific depts and free them from 1st amendment concerns?

~~~
d0100
> Could a governor outsource specific depts and free them from 1st amendment
> concerns?

At face-value it seems so, which is scary.

~~~
howard941
Can't avoid taking it at face value - the city outsourced its public channel
to a private operator which was enough to lead five Justices on another trip
down the garden path to fencing limits on government to government actors in
an orthodox sense. These 5-4 splits are scary and dangerous.

~~~
gwright
I think this situation is somewhat different from your characterization. It
isn't really a "public channel" that somehow belongs to the city/state. It is
privately provided service that is just mandated as a side-effect of granting
the private company a cable franchise.

But I'm struggling to come up with a good analogy that involves private
infrastructure that exists only due to government action with a 1st-amendment
component.

------
xg15
Maybe this is too simple, but this seems like an easy way to get rid of the
first amendment: Just privatize everything!

------
cjslep
This lets those with the most money set up non profits and use taxpayer
dollars to fulfill political agendas on public access channels and permit
firing employees that object to the new propaganda making machine so long as
at least one viewer objects to that employees work?

Sign me up and call me Sinclair.

~~~
ghaff
If your goal is to exert broad political influence, I'm guessing that public
access cable channels are probably not your most effective route.

------
DINKDINK
It wasn't clear to me, after a quick skim, if the public-access channel had
received state funding and therefore was effectively the state but outsourced.
I would assume it had, which in my eyes doesn't mean it's a 'private platform'
but more a privately operative public platform.

------
geggam
I wonder if being public traded cant be used as a tool to say the company isnt
private ?

~~~
Zimahl
Publicly traded doesn't mean owned by the gov't or a gov't entity. The 1st
Amendment of the Constitution says the gov't can't infringe on free speech.
Just like you can restrict speech within your own house, a company - private
or public - can do the same. Neither can be told by the gov't that certain
speech is not allowed.

~~~
geggam
Yes and no, the 1st amendment says the govt does not have the power to
infringe on your preexisting right to free speech.

I am not sure where the govt thinks it can give corporations that power since
the corporate entity is a fictitious person created by the govt.

Free speech is a right, the right to travel is a right corporations cannot
prevent you from doing either. Arguably the internet is public property.

The line blurs when you offer the public access to your computers but no one
has the right to curb your speech. Corporations might have the right to delete
data but then they arguably lose the safe haven of simply being a service
provider.

------
DiseasedBadger
These are governments. Governments are corporations. The distinction between
then is completely imaginary, and need only be propounded where it serves a
purpose.

There is no intrinsic justification for the bill of rights. There is no reason
why we can't enshrine protection from corporations.

~~~
sdinsn
> Governments are corporations

No, they aren't.

