Court Rejects First Amendment Claim Against Facebook et al

In Brock v. Zuckerberg et al, No. 20-cv-7513, 2021 WL 2650070 (S.D.N.Y. 2021) (Liman, J.), the court dismissed plaintiff’s claims asserting that defendants Facebook, Inc. (as well as Mark Zuckerberg, Sheryl Sandberg, among others) violated his constitutional rights to free speech and due process by allegedly removing and blocking his Facebook posts.

This decision is instructive as to the frequently-asserted claim that certain social media platforms are the “new town square” and, as such, are “state actors” constrained by the First Amendment to the U.S. Constitution.

Here, the court sides with the defendants.

In dismissing plaintiff’s claims “with prejudice,” the court explained:

Because the United States Constitution regulates only the Government, not private parties, a litigant claiming that his constitutional rights have been violated must first establish that the challenged conduct constitutes state action.” Fabrikant v. French, 691 F.3d 193, 206 (2d Cir. 2012) (quoting Flagg v. Yonkers Sav. & Loan Ass’n, 396 F.3d 178, 186 (2d Cir. 2005)); see also Hudgens v. N.L.R.B., 424 U.S. 507, 513 (1976) (“[T]he constitutional guarantee of free speech is a guarantee only against abridgment by government.”); Rodriguez v. Winski, 973 F. Supp. 2d 411, 419 (S.D.N.Y. 2013) (“It is axiomatic that the First Amendment protects the rights to speak, publish, and assemble against abridgement only by the government.”).

The actions of a private corporation only constitute state action “(i) when the private entity performs a traditional, exclusive public function; (ii) when the government compels the private entity to take a particular action or (iii) when the government acts jointly with the private entity.” Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921, 1928 (2019) (internal quotations and citations omitted). Notably, “merely hosting speech by others is not a traditional, exclusive public function and does not alone transform private entities into state actors subject to First Amendment constraints.” Id. at 1930. Therefore, private companies which maintain public online forums may “exercise editorial discretion over the speech and speakers in [such] forum[s].” Id.

Though the Second Circuit has not addressed the question of whether a social media provider is a state actor for First Amendment purposes, other circuits that have confronted the issue have unanimously held platforms like Facebook are not state actors. For example, the D.C. Circuit recently held that Facebook, Google, Twitter, and Apple were not state actors; the court then affirmed the dismissal of First Amendment claims against the companies. Freedom Watch, Inc. v. Google Inc., 816 F. App’x 497, 499 (D.C. Cir. 2020) (noting the mere provision of “an important forum for speech” did not transform online platforms into state actors). In a similar case involving YouTube, the Ninth Circuit held that “the state action doctrine preclude[d] constitutional scrutiny of YouTube’s content moderation pursuant to its Terms of Service and Community Guidelines.” Prager Univ. v. Google LLC, 951 F.3d 991, 999 (9th Cir. 2020). Other courts throughout the country have also declined to treat Facebook as a state actor and have upheld the company’s ability to remove content. See, e.g., Ebeid v. Facebook, Inc., 2019 WL 2059662 at *6 (N.D. Cal. May 9, 2019); Zimmerman v. Facebook, Inc., 2020 WL 5877863 at *2 (N.D. Cal. Oct. 2, 2020).

Plaintiff’s claims based on the First Amendment, as well as on the Fifth, Sixth, and Fourteenth Amendments, therefore fail at the threshold because Facebook is not a state actor. Plaintiff contends that Facebook’s status as a “state actor” is “immaterial” because Facebook is performing a function “traditionally” performed by the government. Dkt. No. 33 ¶¶ 8-12. The relevant function that Facebook provides is an online platform for speech. Plaintiff also analogizes Facebook’s provision of an online messaging service to the government’s traditional provision of mail services through the United States Postal Service. Id. ¶¶ 10-11. However, “[i]t is ‘not enough’ that the relevant function is something that a government has ‘exercised … in the past, or still does’ or ‘that the function serves the public good.’ ” Prager Univ., 951 F.3d at 998 (quoting Halleck, 139 S. Ct. at 1928-29). The government must have performed the function in question exclusively as well. Halleck, 139 S. Ct. at 1929. Facilitating the exchange of communication or hosting a platform for discussion are not activities “that only governmental entities have traditionally performed.” Prager Univ., 951 F.3d at 998 (quoting Halleck, 139 S. Ct. at 1930). Thus, Plaintiff may not “avoid the state action question” by claiming that Facebook is serving a public function. Id. at 999.

Plaintiff’s other arguments regarding Facebook’s status as a “new town square,” Dkt. No. 33 ¶ 12, have been similarly addressed and dismissed by other courts. See e.g., Zimmerman, 2020 WL 5877863, at *2 (holding the operation of a “digital town square” did not make Facebook a state actor). The Supreme Court held in Marsh v. State of Alabama, 326 U.S. 501, 506 (1946) that citizens in a company-owned town were guaranteed constitutional protections against the deprivation of their First Amendment rights by the company, but courts have refused to extend Marsh’s holding to social media cases. See, e.g., Prager Univ., 951 F.3d at 998 (noting Marsh was “unequivocally confined … to the unique and rare context of company town[s] and other situations where the private actor perform[s] the full spectrum of municipal powers”) (internal citations and quotation marks omitted). Finally, Facebook’s status as a publicly held company does not make the company a state actor for the purposes of constitutional violations. See Freedom Watch, 816 F. App’x at 499 (dismissing First Amendment claims against Google, Facebook, Twitter, and Apple, which are all publicly traded companies).

The court also dismissed plaintiff’s claims arising under Section 230 of the Communications Decency Act, 47 U.S.C. § 230.

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