Monday, June 17, 2019
SCT: Private Entities Designated By Local Government To Operate Public Access Channels Are Not State Actors
The Supreme Court, voting 5-4, has reversed the Second Circuit in Manhattan Community Access Corp., v. Halleck. In the case, petitioner Manhattan Neighborhood Network (MNN) argued that it is not a state actor and is not required to allow the producers of a film critical of it to gain access to the public access channels it carries, even though New York City designated it as the operator of public access channels on the Time Warner cable system that serves Manhattan.
Justice Kavanaugh, for the majority (Kavanaugh, Roberts, Thomas, Alito, and Gorsuch) wrote that MNN is not a state actor. "[I]s operation of public access channels on a cable system a traditional, exclusive public function? If so then the First Amendment would restrict MNN's exercise of editorial discretion over the speech and speakers on the public access channels....[W]e conclude that operation of public access channels on a cable system is not a traditional, exclusive public fuction. Moreover, a private entity such aws MNN who opens its property for speech by others is not transformed by that fact alone into a state actor." He continues, "[M]erely 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. If the rule were otherwise, all private property owners and private lessees who open their property for speech would be subject to First Amendment constraints and would lose the ability to exercise what they deem to be appropriate editorial discretion within that open forum. Private property owners and private lessees would face the unappetizing choice of allowing all comers or closing the platform altogether."
Justice Sotomayor dissented, writing in part, "The channels are clearly a public forum: The City has a property interest in them, and New York regulations require that access to those channels be kept open to all. And because the City (1) had a duty to provide that public forum once it granted a cable franchise and (2) had a duty to abide by the First Amendment once it provided that forum, those obligations did not evaporate when the City delegated the administration of that forum to a private entity. Just as the City would have been subject to the First Amendment had it chosen to run the forum itself, MNN assumed the same responsibility when it accepted the delegation."