The Supreme Court rejected a similar argument in 2019. In an opinion by Justice Brett Kavanaugh — one of Trump’s nominees — the court found that the First Amendment didn’t apply to the operator of public access channels that had suspended producers over content. Kavanaugh wrote that opening up a media platform to the public did not transform a private company into a state actor. He cited a line of cases upholding the right of private entities that function as spaces for public speech to “exercise editorial discretion” and warned that trying to apply the First Amendment would run up against the constitutional protections that private property owners enjoy.
In the two years since the 2019 decision in Manhattan Community Access Corp. v. Halleck came down, lower courts have applied its reasoning specifically to reject First Amendment claims filed by conservatives against social media platforms. Those included a February 2020 decision from the US Court of Appeals for the 9th Circuit rejecting claims by Prager University, a conservative content company, against YouTube and a May 2020 decision from the DC Circuit tossing claims brought by far-right activist Laura Loomer against Twitter and Facebook.
Less than a week ago, a federal district judge in Tallahassee blocked a Florida law that had strong support from Republicans that would have allowed the state to fine social media platforms that removed candidates leading up to an election. In the opinion, the judge noted that although it wasn’t always “settled” how the First Amendment should apply to social media companies, one thing that was clear was that these platforms weren’t violating the First Amendment when they moderated content — and he cited the Supreme Court’s decision in Halleck.