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First Amendment doesn’t apply to private operator running public-access channels (theverge.com)
92 points by howard941 35 days ago | hide | past | web | favorite | 39 comments

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".

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.

"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.

IANAL (and haven't read the opinions) but it seems as if the general situation with public access channels could have allowed for a very narrowly crafted opinion that said the provider was a state actor in this very particular case. But it is a potentially slippery slope.

ADDED: SCOTUSblog has a writeup. In general, the split decision seems mostly a disagreement over which rather specific facts apply. https://www.scotusblog.com/2019/06/opinion-analysis-court-ho...

Note that PBS is mostly funded by donations and public access channels are a different thing - usually part of the cable franchise agreement with the local city.

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".

In the case of public access cable channels, they are just one alternative out of many for the information they cover. The question of whether an entity is a state actor is somewhat peripheral to the question of Free Speech in the world of 2019.

What if the latest and greatest media technology was the printing press, and only one company made printing presses that were worth a damn, and they never sold but only leased their presses, and they only leased them to Republicans? OctoPressCo wouldn't be a state actor. However, they would be exercising power of such magnitude that it doesn't make a difference. All the while, OctoPressCo and its supporters would be saying, there's still Free Speech. You can always just distribute manually hand-written newspapers, pamphlets, and books!

Viral spread and discovery through social media are a game changing media technology. The people who control a small number of mega-corporations want to grant this power preferentially to a certain political party, while choking it off from big swathes of the population and entire demographics they deem less worthy.

That's not democratic, it's oligarchic. It's also going against the spirit of Free Speech!

It's also going against the spirit of free speech to force people to promote speech they don't want to.

If the issue is that a few companies largely control the avenues of discourse, let's just fix the problem at the root and break up those companies. After all, even if they were principled defenders of free speech, we'd still be consigning ourselves to living under essentially benevolent dictators.

While this is a tempting argument to make, the problem is that "just" is not an accurate way to describe the task of breaking up large companies. It takes monumental effort and money to do so. There is no "just" breaking up monoliths.

Ok, I've put your phrasing in the title above, though that pushed out the Supreme Court.

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.


"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"

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

I don't think that's huge, considering that questions with clear-cut answers shouldn't make it to the Supreme Court.

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

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.

It'd still be just 5-4, but the other way. It doesn't fix the 5-4 decisions, it just changes them to be the decision you agree with.

It doesn't fix those. That's why I said the court would be different, not better or worse.

"If only" implies the speaker longs for whatever thing to happen or have happened, that such thing would be better.

These last batch of rulings have had unlikely or unusual combinations of both liberals and conservatives.

The case for gerrymandering was decided by Ginsburg, Thomas, Sotomayor, Kagan, and Gorsuch.

Here's two more cases not along traditional partisan lines:


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.

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.

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.

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?

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

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

And how about other amendments?

It's very scary if the court is arguing that the government can hire a private company to provide a service or perform a task and that private company is not bound by the constitutional responsibilities that the government would've been bound by had it provided the same service or performed the same task.

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.

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.

Not the same question but "if the government doesnt like what the outsourced department is saying, they can replace them." Indirectly they could control speech.

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

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.

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

Did MMN get taxpayer funds? It sounded as though NYC merely gave them rights to a channel.

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.

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

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.

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.

There is, however the concept of Privately Owned Public Spaces, which this is very close to, and given the government outsourced existence of the Public Access Channel, I'd be inclined to favor.


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.

> Governments are corporations

No, they aren't.

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