From left, Justice Robert Miller of the Appellate Division, Second Department; contest winner William Lohier, a student at Stuyvesant High School; and Judge Paul Feinman of the Court of Appeals. (Photo: Kimberly Kueny/ALM)

Editor's Note: William Lohier, a student at Stuyvesant High School, is the winner of the annual essay contest sponsored by the Association of New York State Supreme Court Justices and the New York Law Journal.

When my Instagram post was taken down, flagged for violating Instagram's “community norms” I was surprised. The post, outlining a racist incident at my school did not have any seemingly objectionable content. Furthermore, I, internet savvy Gen-Zer that I am, was shocked that Instagram, a platform with over one billion users that outwardly functions in many ways as a public forum, was able to censor speech in the first place.

Freedom of speech is a right guaranteed by the Constitution and is essential to a functioning democracy. The specific First Amendment protections private citizens are entitled to in public or government regulated forums have been carefully conceived to balance the country's interest in maintaining a free society with a wide range of ideas with national security and safety concerns. While the Supreme Court has established limits to First Amendment protections, most notably in schools (see Hazelwood School District v. Kuhlmeier, 484 U.S. 360 (1988)), private forums, such as social media platforms like Instagram, remain the primary area in which constitutional limits to free speech can exist.

The judiciary's ability to ensure First Amendment protections lies, at least in part, in its jurisdiction in determining whether a specific forum is public or private. In the wake of numerous technological advances, the responsibility has fallen to the judiciary to dictate which forms of communication and speech are protected in newly invented forums. This was made evident in the Supreme Court's 1997 decision Reno v. ACLU which extended First Amendment protections to online speech, determining that laws at the time censoring internet communications were an “unacceptably heavy burden on protected speech,” Reno v. ACLU, 521 U.S. 844 (1997).

Today, private online forums such as social media platforms like Facebook, Instagram and Twitter, serve an increasingly public function. Facebook's base of billions of users dwarfs the population of the entire United States and young people are steadily turning to social media not only for entertainment but for news, information and to disseminate ideas. In fact, in Packingham v. North Carolina, 582 U.S. (2017), former Supreme Court Justice Anthony Kennedy referred to social media as a “modern public square.” Forums like public parks in which public discourse would be constitutionally protected have been progressively supplanted by private online forums in which speech is not entitled to the same protections.

It is essential that our government recognize the public function many of these social media platforms serve and, in keeping with the idea that free public discourse is a necessary component of democracy, begin to extend First Amendment protections to speech delivered in these forums that are public in all but name. Take my Instagram post for example. Shedding light on a racist incident would be constitutionally protected in any public forum, however, on Instagram an impersonal algorithm has the ability to censor my contribution, broadly citing “objectionable content.” This ultimately demonstrates that First Amendment protections of free speech lag far behind technological advancements and the shift to social media as a hub for disseminating information. The fact that social media companies are allowed to censor carte blanche all speech on forums that have become some of the largest marketplaces for ideas, new and media poses a severe to our freedom of speech.

So how do we ensure constitutional protections extend to private online forums that are far more accessible and either supplanting or at the very least supplementing government forums? The 2nd Circuit's decision in Manhattan Community Access Corp. v. Halleck provides a feasible path to protecting speech delivered in these forums. The case, recently granted certiorari, seemingly has little to do with social media but rather questions whether a privately operated public access television network can legally censor speech delivered under its auspices. However, should the court rule such censorship unconstitutional, it could provide a roadmap by which the federal government, in granting social media companies certain publicly accessible forums, can extend First Amendment protections to speech delivered within these forums.

While it is unlikely any significant change will be made in the near future regarding free speech in online forums, cases like Halleck present an interesting view into a future in which the most popular modern form of communication is entitled to the same protections previously reserved only for public settings. As for my Instagram post, I appealed the violation and after Instagram's all-seeing algorithm revisited the post, it magically re-appeared on my wall. It is one of my most-liked posts to date.