As we neared the end of the 2018-2019 Supreme Court term, I was watching with bated breath for the issuance of three opinions relevant to my work and, I assumed, to the interests of our CommLawBlog readers. The cases affected my interests in distinctly different ways:  from my “extracurricular” activities to the participation of clients in the proceedings to my penchant for the occasional, intentionally disruptive profanity work on trademark and First Amendment issues.  I’ve provided a teaser of the second (Food Marketing Institute v. Argus Leader) and third (Iancu v. Brunetti) in our CommLawClarified video series and we’ll be publishing actual blog posts about these soon.

This post, however, is about Manhattan Community Access Corp. v. Halleck, where the question is whether “the operation of public access channels on cable system a traditional, exclusive public function.” If so the First Amendment restricts the Manhattan Community Access Corporation (MCAC) exercise of editorial discretion over the speech and speakers on the public access channels.  My connection to this case is through my service for more than ten years as a board member for the Public Access Corporation of the District of Columbia (“DCTV”), which operates the public access television channels in D.C.  Make all the “Wayne’s World” jokes you want but I’m proud of what DCTV and other public access channels provide in terms of diverse programming, substantive, hands-on skills training across the city, and overall commitment to First Amendment principles (even as it wasn’t clear that the First Amendment strictly applied to DCTV and other public access channels – at least until this case was resolved, though I expect that overall commitment to continue).

The Court, in a 5-4 opinion written by Justice Kavanaugh, who was joined by the Court’s four traditionally conservative Justices (Roberts, Thomas, Alito, and Gorsuch), preserves editorial discretion for public access channels like MCAC and DCTV; for that, I am happy.  At the same time, it clearly protects larger, more corporate entities as well; in that regard, I simply hope that later opinions will heed Justice Kavanaugh’s warning that the decision be limited to the facts of this case.

And what are those facts?

Two individuals – DeeDee Halleck and Jesus Papoleto Melendez – who often produced programs shown on MCAC channels made a film about MCAC’s alleged neglect of the East Harlem Community.  MCAC televised the film (despite being the subject of heavy criticism in the film).  MCAC later received several complaints about the content, after which it temporarily suspended the producers from using public access; they were later permanently suspended after another dispute.

The producers sued MCAC, alleging that a suspension based on the content of their film constituted a violation of their First Amendment rights. MCAC moved to dismiss the lawsuit on the basis that it is not a “state actor” and, as such, is not strictly subject to the First Amendment.  The United States District Court for the Southern District of New York ruled that MCAC is not a state actor and granted the motion to dismiss. The United States Court of Appeals for the Second Circuit reversed this decision, holding that public access television channels are a “public forum” where the First Amendment applies.

Justice Kavanaugh’s decision relied closely on the historical regulatory scheme applicable to public access television as well as the modern set up of these specific MCAC channels.  In the 1970s the Federal Communications Commission (FCC) regulations required cable operators to set aside channels on their cable systems for public access. But, in 1979, the Supreme Court, in FCC v. Midwest Video Corp,  ruled that the FCC lacked the authority to impose that mandate. Congress, in response, included provisions in the Cable Communications Policy Act of 1984 which authorized state and local governments to require cable operators to set aside channels for public access.  New York did just that, requiring cable operators to set aside public access channels for use free of charge and on a first-come, first-served basis. Under New York’s regulatory scheme, the cable operator is in charge of the channel unless (1) the local government chooses to operate or (2) the local designates a private entity to operate the channel.  In Manhattan, public access channels on Time Warner Cable System are privately owned by MCAC.

Justice Kavanaugh held that, under these facts, MCAC is not a state actor and therefore, can restrict access to its channels and exert virtually unlimited discretion on programming decisions without running afoul of the First Amendment which, like most individual liberties guaranteed in the Bill of Rights, only offers protection against actions by the government.

A private entity may be considered a state actor only when (1) it exercises a function traditionally exclusively reserved to the State, (2) the government compels the private entity to take a particular action, or (3) when the government acts jointly with the private entity.

Justice Kavanaugh quickly ruled that neither the second nor third categories were in play here.  The government wasn’t compelling MCAC to suspend the producers and there was no obligation for the government to operate these channels in the first place, meaning the government was not acting jointly with MCAC. He, therefore, focused on whether MCAC’s public access channels are traditionally exclusively reserved to the state, concluding they are not.

It is not enough, Justice Kavanaugh held, that the government may have operated public access channels in the past or even that the public good or public interest are generally served. State action in this area is limited to those activities that are both traditional AND exclusive to the government, which is extremely narrow, things like running elections, operating prisons, having police forces, and  operating “company towns.” He provided a long list of activities falling outside the area of “traditional and exclusive” including running sports associations and leagues, administering insurance payments, operating nursing homes, providing special education, representing indigent criminal defendants, resolving private disputes,  and providing electricity.

Under this framework, even though public access has been a regular feature of cable channels since the 1970s, these channels have been operated by a variety of public and private actors. Justice Kavanaugh dismissed the producers’ argument that the proper analysis here is actually the “public forum” doctrine, which applies whenever space is traditionally used by the government for free speech activities, as a private entity does not transform into a state actor just because it provides a forum for speech. If that were the case, he noted, anyone who allows others to freely speak would become a state actor and lose the ability to control the speech on their property, “[t]he Constitution does not disable private property owners and private lessees from exercising editorial discretion over speech and speakers on their property.”

Nor does the fact that the city designated MCAC as the operator of these channels and regulates MCAC in several ways make MCAC a state actor.  Justice Kavanaugh likened the relationship between New York City and MCAC as akin to having a government license or contract (“[i]f being heavily regulated were to make a company a state actor, individual liberty and private enterprise would be significantly endangered.”).  Both Time Warner Cable and MCAC are private entities, with all facilities and equipment are owned by MCAC; none of the cable franchise agreements give the government a property interest in the channels (in fact, the opposite is true:  the city explicitly is prevented from holding such an interest in the channels under New York law).

As I noted above, Justice Kavanaugh cautioned against too broad a reading of his opinion, theorizing that a public access channel could be a state actor if  (1) the government operated the channel or (2) the government took other steps to obtain a property interest in the channel.

Justice Sotomayor – a proud native New Yorker it must be noted – wrote in dissent for the more liberal wing of the Court (she was joined in her opinion by Justices Ginsburg, Breyer, and Kagan).  She disagreed with the majority view that this case is simply about a private property owner opening up space to others; instead, she viewed MCAC as an organization appointed by the government to administer a constitutional public forum.

In Justice Sotomayor’s view, New York City does have a property interest in these channels, acquired when the city granted a cable franchise to Time Warner Cable and reinforced when state law required those channels to be open to the public on terms that render them a public forum. The city has merely contracted out oversight to a private entity because a private company cannot enter the local cable market without a franchise agreement issued by the state because it is using the public rights of way.  As a condition of getting this franchise agreement, the cable company must agree to set aside at least one channel for public access use, with the state requiring use on a first-come, first-served, nondiscriminatory basis. She also pointed to the fact that, historically, the initial seven board members of MCAC were chosen by the city and the city arranged for MCAC to be funded via franchise fees from cable operators.  As Justice Sotomayor sees it, “if this were a theater, there would be no question that the government’s long term lease would be sufficient to create a public forum.”

While this case has major ramifications for MCAC, DCTV, and other public access channels – many of whom will enjoy greater independence in their programming decisions – are there any greater lessons we can take from Justice Kavanaugh’s decision, especially in light of his admonition that it should be limited to the facts of this case?

Well, it certainly will expand the “state action” doctrine to some degree. Corporations will be loving this decision, especially the final paragraph, which reads:

It is sometimes said that the bigger the government, the smaller the individual.  Consistent with the text of the Constitution, the state-action doctrine enforces a critical boundary between the government and the individual, and thereby protects a robust sphere of individual liberty. Expanding the state-action doctrine beyond it’s traditional boundaries would expand governmental control while restricting individual liberty and private enterprise.

With this pro-corporation, anti-big government kicker, it’s not surprising to see the Court split along conservative and liberal lines.  In the First Amendment realm, social media platforms such as Facebook and Twitter will certainly cite this decision (even though I don’t think anyone has necessarily called them “state actors”) as further proof that they are to be the sole and final arbiters of what is or is not allowed on their sites. The issue to be watched is probably more outside this pure speech context: whether some even more traditional (but perhaps not exclusive) government functions that have been outsourced to private actors (like, perhaps prisons or detention centers) can operate even more freely of government intervention when restricting individual liberties.