The First Amendment applies only to state actors—it doesn’t apply private organizations like Walmart or the NFL—but it can be difficult to determine whether an entity is sufficiently controlled or influenced by a government (city, state, or federal) to be considered a state actor. The district court ruled that MNN was not a state actor, but the Second Circuit disagreed, ruling that MNN was a state actor by applying a strange “public‐function” test. The panel majority concluded that a “public access channel is the electronic version of the public square,” found some connections to the government, and concluded MNN was a state actor. In so doing, the Second Circuit put too little emphasis on whether there was meaningful state control over the editorial decisions of MNN.
Cato filed an amicus brief in support of certiorari, and the Supreme Court took the case. Now, on the merits, Cato has again filed a brief that emphasizes the importance of having a clear line between state actors and private actors. A free society needs strong protections for free speech in the public sphere, including protections against viewpoint discrimination, content restrictions, and other forms of censorship. But it’s also vital to have strong protections for private actors to speak, not speak, or to censor speech that does not comport with their views or values when that speech is performed on private property. By limiting the First Amendment to government actors, we maintain a broad ecology of free expression where individuals aren’t subject to constitutional liability because they choose to use their property to promote ideas that conform with their values.
The Second Circuit opinion shifts the focus of the state‐actor requirement away from determining whether there was evidence of meaningful state control over a private party’s editorial decisions. In a time when many people are advocating for First Amendment constraints on social media companies like Facebook, it’s important that the Court put the “state” back in the state‐actor requirement. Ultimately, clarifying the lines between the government and private actors helps create a more vigorous system of free expression.
