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. Public access channels are defined in the regulation as channels “designated for non-commercial use by the public on a first-come, first‑served . . . basis.” Id. The franchise agreement between NYC and Time Warner identified a private not-for-profit corporation, Petitioner Manhattan Neighborhood Network (“MNN”), to oversee and administer the public access channels. Id. at 5–6.
Respondents, Deedee Halleck and Jesus Papoleto Melendez (“Halleck and Melendez”), produced public access programming in Manhattan. Id. at 6. In July 2012, MNN inaugurated a community media center in Manhattan. Id. Halleck and Melendez conducted interviews of invitees and filmed the event, later submitting a video to MNN entitled “The 1% Visits the Barrio” (“1% video”). Id. at 6–7. The video presented the view that MNN was only catering to the programming needs of certain elite sections of the community. Id.
Subsequently, MNN’s programming director suspended Halleck from airing videos on MNN’s public access channels for a period of three months. Id. at 7–8. MNN’s executive director suspended Melendez indefinitely from MNN services and facilities and suspended Halleck from MNN services and facilities for a period of one year. Id. at 8. Even after Halleck’s suspension ended, she was not permitted to air the 1% video on public access channels. Id. Halleck and Melendez allege that they were suspended because of the viewpoints they expressed in the 1% video, while MNN and its employees contend that Halleck and Melendez were suspended because the 1% video violated MNN’s program content restrictions regarding harassment and intimidation of its staff. Id. at 7–8.
Following this, Halleck and Melendez sued MNN, three MNN employees involved in approving their suspension, and NYC in the United States District Court for the Southern District of New York. Id. at 3. Halleck and Melendez alleged, among other things, a claim under 42 U.S.C. § 1983 for a violation of their First Amendment free speech rights. Id. The district court dismissed the claims against MNN and its employees, holding that MNN was a private entity whose conduct did not constitute governmental action and that public access channels were not a public forum where First Amendment protections applied. Id. at 8–9. The district court also dismissed the claims against NYC because MNN’s actions were not made pursuant to any NYC municipal policies, which is a requirement in order for municipalities to be liable for a constitutional tort. Id at 10–11.
On appeal, the Court of Appeals for the Second Circuit affirmed the dismissal of the claim against NYC and reversed the dismissal of the claims against MNN and its employees, holding that public access TV channels in Manhattan were public forums and that the employees of MNN were state actors whose acts violated the First Amendment free speech rights of Halleck and Melendez. Id. at 3–4. MNN appealed, and on October 12, 2018, the Supreme Court of the United States granted certiorari. Orders and Proceedings, 17-1702.
DETERMINING WHETHER A PUBLIC FORUM EXISTS
MNN argues that the Second Circuit contradicted Supreme Court precedent by first determining that MNN’s public access channels were constitutional public forums and then finding that MNN was a state actor. See Brief for Petitioner, Manhattan Community Access Corp. at 21–22. MNN asserts that the Second Circuit erroneously skipped the state action inquiry, conflicting with Supreme Court precedent indicating that it should be applied first. Id. at 23. Further, MNN notes that the Sixth and D.C. Circuits considered the same issue, and both applied the state action analysis first, concluding that private parties that operate public access channels do not constitute state actors. Id. at 26.
Additionally, MNN maintains that district courts across the country also follow the same structure of analysis, ordinarily conducting the state action inquiry first. Id. at 27. Even when courts deemed public access channels constitutional public forums, MNN contends that courts only determined this after having conducted a state action test and on evidence that the government had direct control of the public access channel. Id. at 28. MNN argues that public access channels cannot be considered constitutional public forums because it is neither government‑owned or government‑controlled property, and therefore, not subject to constitutional restrictions. Id. at 31. According to MNN, the Supreme Court precedent that Halleck and Melendez cite is inapposite because it dealt with government-owned property, and the particular dicta in Cornelius v. NAACP Legal Defense & Educ. Fund only mentioned the issue of private property dedicated to public use in passing and without engaging in a more substantive analysis. Id. at 31.
Further, MNN asserts that the only Supreme Court case to hold that First Amendment protections applied to privately-owned and controlled property, Marsh v. Alabama, is limited to its unique facts in which a private corporation had taken on the role of building and running a town, which was an exclusively government function. Id. at 32–33. MNN also maintains that the Second Circuit’s opinion creates a per se rule that would make almost all public access channels constitutional public forums and that such a rule would violate all state actor test precedent requiring a precedent state action. Id. at 35–37.
Halleck and Melendez counter that New York’s free, first-come, first-served system for its public access channels was a conscious choice to create a public forum that should be respected by the courts. See Brief for Respondents, Halleck and Melendez, at 21, 30. Thus, Halleck and Melendez argue that the structure of New York’s laws was designed to open the state’s public access channels to members of the public without allowing MNN to filter the content that aired on the public access channels. Id. at 27–28. Halleck and Melendez point out that MNN previously admitted that the New York statute precluded them from engaging in viewpoint‑based discrimination or preventing content that was critical of them from airing. Id. at 27. Halleck and Melendez assert that these qualities indicated that public access channels are a public forum. Id. at 27.
Additionally, Halleck and Melendez maintain that there is no support for the proposition that public access channels are privately-owned and controlled forums. Id. at 33. Rather, Halleck and Melendez contend that the City retains total discretion to remove and replace MNN as administrator, and thus, own the rights involved here. Id. at 33. Halleck and Melendez note that the City had the option to run the public access channels itself or to assign the task to a third party—if it had decided to run the channels itself, they would clearly be public forums. Id. at 35–36. Halleck and Melendez argue that the City’s choice to delegate its administrative function to MNN does not affect the court’s analysis because the City did not transfer ownership rights of the public access channels to MNN. Id. at 36. Moreover, Halleck and Melendez assert that the City’s retention of its ownership rights distinguishes this case from Denver Area v. FCC, where the Court’s decision rested in part on the conflict between the cable operators’ right to control its content and the programmers’ right to use the cable system to broadcast its content. Id. at 38. Even if the Court finds that MNN owns some rights related to the public access channels, or alternatively, if the cable operators do, Halleck and Melendez maintain that MNN’s arguments should still fail because MNN’s rights—and the cable operators’—should be subjected to an easement favoring the public, which would prevent them from exercising editorial control. Id. at 40–42.
THE PUBLIC FUNCTION TEST AND STATE ACTION ANALYSIS
MNN argues that none of the state actor tests that the Supreme Court utilizes would lead to the conclusion that MNN was a state actor subject to constitutional claims. See Brief for Petitioner, at 38. First, MNN asserts that it would not be a state actor under the Lebron test because the government did not have the requisite control over the corporation’s board of directors—MNN did not have the power to nominate a majority of the board of directors. Id. at 38–41. MNN also maintains that it is not a state actor under the public function test—which the Second Circuit’s concurrence misapplied—because providing public access channels is not a function that the government traditionally and exclusively performs, which is a very narrow and strict inquiry. Id. at 41–44.
Further, MNN contends that the City has never controlled Manhattan’s public access channels and that even if the City failed to designate a private non-profit entity to operate the channel, the responsibility would still fall to the cable franchisee. Id. at 44–45. MNN argues that this demonstrates a great deal of separation, supporting their contention that running public access channels are not a traditional or exclusive government function. Id. Additionally, MNN asserts that it is not a state actor under the compulsion and coercive test because there is no evidence that the City was involved in the decision to reprimand Halleck and Melendez, and this cannot be inferred from the existence of New York’s general regulatory scheme. Id. at 46–47. Similarly, MNN maintains that it would not be a state actor under the “symbiotic relationship” test because MNN does not have the requisite funding and regulatory dependence on the government that has previously been required to establish such a relationship. Id. at 48–50.
Halleck and Melendez counter that administering a public forum constitutes a public function, meaning that constitutional protections apply. See Brief for Respondents, at 51. Further, Halleck and Melendez argue that the government cannot circumvent the First Amendment’s requirements simply by delegating a public function to a private organization, as the City has here. Id. at 53. Halleck and Melendez assert that Supreme Court precedent supports the proposition that the administration of a public forum is a traditional and exclusive state function. Id. at 54, 56. More specifically, Halleck and Melendez maintain that only a state has the power to create a public forum and administer a public, as this power is tied to the state’s sovereign authority, absent the state delegating such authority to a private party. Id. at 55. Halleck and Melendez note that lower courts also agree with the proposition that the administration of a public forum constitutes a public function. Id. at 56.
Additionally, Halleck and Melendez contend that the “direct and indispensable participation” test demonstrates that state action is present in this case because NYC created MNN, appointed its initial board, and designated MNN as administrator of the public access channels. Id. at 57–58. Finally, Halleck and Melendez also argue that New York law eliminates all of MNN’s editorial discretion and decision-making powers. Id. at 58–59.
CONSEQUENTIAL EFFECTS ON CABLE OPERATORS AND SOCIAL MEDIA PLATFORMS
The Chicago Access Corporation (“CAC”), in support of MNN, asserts that not permitting MNN and other public access channel operators to exercise editorial discretion will hinder the ability of these channels to enhance the viewing experience of their audience by ensuring that the programs they air are appropriate. Brief of Amicus Curiae Chicago Access Corporation, in Support of Petitioner at 25. The CAC warns that imposing First Amendment restrictions on MNN and other public access channel operators would expose decisions they made about when and where to air programs to potential lawsuits, and this threat of costly litigation would deter their channels from functioning effectively. Id. at 25–26. The Cato Institute (“Cato”), in support of MNN, argues that imposing the First Amendment restrictions on private parties, like MNN, could have consequences that endanger other platforms, including social media and other digital platforms. Brief of Amicus Curiae Cato Institute, in Support of Petitioner at 21. Cato maintains that creating constitutional liability for these actors could potentially stifle their innovative process and threaten their business model, which thrives on allowing users to individualize content relevant to them—by implication, this process excludes a vast array of speech. Id. at 23–24.
The American Civil Liberties Union and other non-profit organizations that work to protect First Amendment rights (“ACLU”), in support of Halleck and Melendez, rebuff the arguments that a determination by the Court that public access channels are public forums would have any consequences for social media companies. Brief of Amicus Curiae American Civil Liberties Union et al., in Support of Respondents at 29. The ACLU asserts that it is only because MNN owes its very existence to federal, state, and local law, which dictate that it shall have no editorial control over the content aired, that makes MNN a state actor. Id. at 27–28. Moreover, the ACLU maintains that social media platforms are not created by government fiat and will continue to retain their ability to exercise editorial discretion over content hosted on their platforms—merely allowing public use of their forums will not transform them into public forums. Id. at 29–30. The Knight First Amendment Institute at Columbia (“Knight First Amendment Institute”), in support of Halleck and Melendez, contends that not applying First Amendment restrictions to digital‑age speech forums would allow government controlled pages on these forums to block and censor speakers who were critical of government policies, as well as manipulate speech on these forums, thus compromising public discourse. Brief of Amicus Curiae Knight First Amendment Institute at Columbia, in Support of Respondents at 19–20.
PROTECTING THE MARKETPLACE OF IDEAS
The Chamber of Commerce of the United States of America (“Chamber”), in support of neither party, argues that placing restrictions on the editorial powers of private entities would force them to publish views they and their customers are opposed to, which may ultimately cause them reputational and monetary losses. Brief of Amicus Curiae Chamber of Commerce of United States of America, in Support of Neither Party at 14–16. The Chamber describes a catastrophic future where companies may hesitate to even operate spaces for speech comparable to public fora, thus causing the “marketplace of ideas” that the First Amendment was designed to protect, to shrink. Id. at 16–17. The Internet Association, in support of neither party, warns that upholding the Second Circuit’s reasoning would place restrictions on websites and other digital platforms from removing content—even on grounds such as hate speech, profanity, and cyberbullying. Brief of Amicus Curiae Internet Association, in Support of Neither Party at 16–17.
The New York County Lawyers (“NYCL”), in support of Halleck and Melendez, contend that limiting First Amendment protections in the way that MNN is advocating for, only to public forums under state control, will have the effect of inhibiting free speech. Brief of Amicus Curiae New York County Lawyers, in Support of Respondents at 29. The NYCL argues that if courts recognized non-traditional forums, such as public access channels where state entities partner with private entities, as public forums, this will create more speech. Id. Further, the NYCL contends that this increase in speech will result in diverse viewpoints because more state and local governments will be encouraged to expand public access programming. Id. The Knight First Amendment Institute advocates for extending First Amendment protections to public forums under state control in order to recognize that such spaces are indispensable to public discourse and are often the spaces where speech that is crucial to democracy happens. Brief of Knight at 17.
- S.M., The Supreme Court Takes a Public-Access TV Case, The Economist (Oct. 17, 2018).
- Alison Frankel, A Supreme Court Case has Internet Companies Running Scared, Reuters (Dec. 13, 2018).