Manhattan Community Access Corporation v. Halleck, et al., No. 17-1702. June 17, 2019.
Cable television companies are required by federal law to set aside some broadcast capacity to permit public access broadcasting. As in this case, local governments contract with the cable companies to operate these public access services. Here, New York City, which franchised Time Warner Cable Company, contracted with a private entity, Manhattan Neighborhood Network (MNN), to operate the community access programs. Film producers Halleck and Melendez sued MNN asserting that their termination after the broadcast of their critical documentary violated their First Amendment rights.
The Supreme Court has concluded that private community access operator MNN is not a “state actor” who has assumed traditionally exclusively public duties.
Public access broadcast channels came into being with a 1970 federal law requiring cable operators to set aside resources for such channels. That law was determined to have been deficient. In 1984 the federal government conferred upon state and local government the authority to require public access set aides.
Currently New York State requires set asides and permits cable operators to operate the public access channels themselves. Alternatively, the cable operators may allow local governments to operate the set asides or permit a private entity to do so.
In this case New York City entered into a franchise arrangement with Time Warner Cable Company which permitted the city to designate the public access channel operators. The city designated the non-profit Manhattan Neighborhood Network (MNN) to operate the public access channels.
The Supreme Court reordered the logic of the Second Circuit and reversed in part its decision, which had found that by operating a public forum, a traditionally exclusively governmental function, the Manhattan Neighborhood Network became a state actor answerable for First Amendment violations.
The Supreme Court has concluded that the public access operator is a private entity. Operation of public access channels in a cable system is not, the Court observed, a traditionally exclusively governmental function. Opening up a space for others’ speech will not transform a private entity into a state actor for First Amendment purposes. The city’s provision of a license to MNN will not make the private entity a state actor unless MNN exercised traditionally exclusively public functions. Regulation will not work the transformation from private to governmental entity either.
The Court does not agree with the argument that the public access channels are public property. The city does not have a property interest in the public access channels. Time Warner, the city’s franchisee, granted the city the opportunity to designate a private entity like MNN to operate the public access channels, but this did not disturb Time Warner’s ownership of the cable system.
The Court observed that other arrangements might yield other results. The Court expressed fear that the expansion of government control through application of the state actor doctrine here would diminish individual liberty and private enterprise.
Three justices dissented, offering the view that the case concerns a government’s appointment of an entity to operate a constitutional public forum. The dissent did not perceive the property to be private property opened up to others. The city has a property interest in the franchise granted to Time Warner. That franchise requires Time Warner to open the public access channels as a public forum. The city’s contract with MNN made MNN the city’s agent, stepping into the government’s shoes and becoming a state actor subject to the First Amendment.
The state requires the cable franchisees to provide open access public channels without editorial control of content. The city’s property interest in the franchise and the mandated open access requires that the operator be treated as a state actor. The city had an obligation to provide the public forums once a franchise was granted and was obligated to comply with the First Amendment once the forum was provided. These constitutional obligations could not be diminished or eradicated by delegation to a private administrator such as MNN.