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Manhattan Community Access Corp. v. Halleck

Issues

Should private entities operating public access television channels be considered state actors per se for constitutional purposes subject to First Amendment limitations on governmental action, even when the state does not control the private entity’s board or operations?

The Supreme Court will determine whether the Second Circuit erred in creating a per se rule that private operators of public access channels are state actors subject to constitutional liability and holding that this is true even where the state does not control the private operator’s board or operations. Petitioners, Manhattan Community Access Corporation et al., also known as Manhattan Neighborhood Network (“MNN”), argue that the Second Circuit violated Supreme Court precedent by determining the constitutional forum question before the state actor issue. MNN also asserts that the public access channels at issue, properly examined under that precedent, would not warrant constitutional protections. Respondents, DeeDee Halleck and Jesus Papoleto Melendez (“Halleck and Melendez”) counter that New York City made the legislative decision to remove MNN’s editorial discretion, thereby designating the public access channels as a public forum warranting constitutional protection. Halleck and Melendez also contend that administering a public forum constitutes a public function, meaning that constitutional protections apply. From a policy perspective, this case is important because it may have implications for the editorial discretion of other private entities—such as YouTube and Twitter—that host expressive spaces open to the public, including government officials.

Questions as Framed for the Court by the Parties

(1) Whether the U.S. Court of Appeals in the 2nd Circuit erred in rejecting the Supreme Court’s state actor tests and instead creating a per se rule that private operators of public access channels are state actors subject to constitutional liability; and (2) whether the U.S. Court of Appeals for the 2nd Circuit erred in holding—contrary to the U.S. Courts of Appeals for the 6th and District of Columbia Circuits—that private entities operating public access television stations are state actors for constitutional purposes where the state has no control over the private entity’s board or operations.

New York City (“NYC”) awarded Time Warner Entertainment Company, L.P. (“Time Warner”) cable franchises for Manhattan and required Time Warner to provide four public access channels for public use, in accordance with New York State regulations. Halleck v. Manhattan Community Access Corporation at 5.

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Shurtleff v. City of Boston

Issues

Whether the City of Boston violated the First Amendment by denying a private party’s application to fly a Christian flag on a flagpole in front of Boston City Hall when the City had approved all 284 previous flag-raising applications; whether the flagpole is a designated public forum for the purposes of the First Amendment; and whether designating a private party’s flag in a public forum government speech inappropriately expands the definition of government speech.

In this case, the Supreme Court must decide whether the City of Boston violated the First Amendment by refusing to fly a flag bearing a Latin cross on a flagpole in front of City Hall. Boston allowed private parties to apply for permission to raise and display their flags on one of three flag poles in front of City Hall. Before Boston rejected Petitioner Harold Shurtleff’s application to fly a flag bearing a Latin cross, it had approved every one of the 284 applications it received. Shurtleff argues that Boston designated the flagpole as a public forum for private speech and committed unconstitutional viewpoint discrimination by refusing to fly Shurtleff’s flag because it bore a Christian symbol. Boston responds that, because the flags flown in front of City Hall are government speech, not private speech, Boston could evaluate flag-raising applications with reference to content and viewpoint, without running afoul of the First Amendment. Interested parties on either side of the case warn of potential chilling effects on private speech, as well as the risk of hostility from the government or from private parties.

Questions as Framed for the Court by the Parties

(1) Whether the United States Court of Appeals for the First Circuit’s failure to apply the Supreme Court’s forum doctrine to the First Amendment challenge of a private religious organization that was denied access to briefly display its flag on a city flagpole, pursuant to a city policy expressly designating the flagpole a public forum open to all applicants, with hundreds of approvals and no denials, conflicts with the Supreme Court’s precedents holding that speech restrictions based on religious viewpoint or content violate the First Amendment or are otherwise subject to strict scrutiny and that the establishment clause is not a defense to censorship of private speech in a public forum open to all comers;

(2) whether the First Circuit’s classifying as government speech the brief display of a private religious organization’s flag on a city flagpole, pursuant to a city policy expressly designating the flagpole a public forum open to all applicants, with hundreds of approvals and no denials, unconstitutionally expands the government speech doctrine, in direct conflict with the court’s decisions in Matal v. Tam, Walker v. Texas Division, Sons of Confederate Veterans, Inc. and Pleasant Grove City v. Summum; and

(3) whether the First Circuit’s finding that the requirement for perfunctory city approval of a proposed brief display of a private religious organization’s flag on a city flagpole, pursuant to a city policy expressly designating the flagpole a public forum open to all applicants with hundreds of approvals and no denials, transforms the religious organization’s private speech into government speech, conflicts with the Supreme Court’s precedent in Matal v. Tam, and circuit court precedents in New Hope Family Services, Inc. v. Poole, Wandering Dago, Inc. v. Destito, Eagle Point Education Association v. Jackson County School District and Robb v. Hungerbeeler.

The City of Boston (“Boston”) owns and operates three flagpoles in City Hall Plaza, all of which stand conspicuously in front of the seat of its municipal government. Shurtleff v. City of Boston, at 82. The first flagpole flies the United States and POW/MIA flags, the second flies the Commonwealth of Massachusetts flag, and the third typically flies Boston’s flag. Id.

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