On its face, the Supreme Court’s 5-4 decision in Manhattan Community Access v. Halleck resolved a narrow question about whether a nonprofit public access channel operator was a state actor subject to First Amendment constraints.  But the Court’s opinion may have invited a more critical inquiry into the role that the government plays in regulating access to cable systems.

The history of this case starts in 1984, when Congress granted state and local governments the authority to require cable operators to set aside cable channels for public access.  The New York Public Service Commission utilized this authority and required Time Warner—now Charter—to set aside channels on its cable system in New York City for public access.  In turn, New York City delegated operation of the public access channels to a nonprofit called Manhattan Neighborhood Network (MNN).  Under New York state law, these public access channels must be made available to the public “on a first-come, first-served, nondiscriminatory basis.”

The specific dispute before the Court arose when two producers submitted content pertaining to MNN’s “alleged neglect of the East Harlem community.”  MNN aired the film, which triggered viewer complaints, and, after another dispute between MNN and the producers, MNN suspended the producers from all MNN services and facilities.  The producers then brought suit in federal court, alleging violations of their First Amendment rights.

The question before the Court was narrow:  was MNN—a private entity contracted by the state to manage public access channels—subject to First Amendment scrutiny?

Justice Kavanuagh, writing for the majority, answered in the negative.  Starting from the uncontested premise that the First Amendment applies to only state action, Justice Kavanaugh explained that MNN was not subject to the First Amendment because it was a purely private entity.  Acknowledging that private entities can be considered state actors where they perform traditional state functions, the Court found these circumstances absent in this case because operation of public access channels on a cable system “has not traditionally and exclusively been performed by the government.”

The Court also found that New York City’s decision to heavily regulate and contract with MNN did not transform the private party into a state actor because “[i]f those facts sufficed to transform a private entity into a state actor, a large swath of private entities in America would suddenly be turned into state actors and be subject to a variety of constitutional constraints on their activities.”  Finding that MNN was purely private, the majority reasoned that MNN was incapable of providing a public forum—thus eliminating the producers’ last theory of liability.

Writing for the four-Justice dissent, Justice Sotomayor pushed back on the majority’s state action conclusion.  The dissent argued that New York City had a property interest in its “exclusive right to send its own signal over Time Warner’s infrastructure . . .”  By using that property interest to deliberately provide access to the channel to the public on a first-come, first-served, nondiscriminatory basis, New York City created a public forum.  And “[w]hen MNN took on the responsibility of administering the forum, it stood in the City’s shoes and became a state actor . . .”  Accordingly, the dissent would have held that the First Amendment claim against MNN was cognizable.

In response to the property interest theory espoused by the dissent, the majority replied:  “The short answer to that argument is that the public access channels are not the property of New York City.”  In the majority’s view, the public access channels were owned by Time Warner and operated by MNN—a purely private setup that granted no ownership rights to New York City in the process.

Moving forward, the case may have created more questions than the narrow one it answered.

The majority cabined the reach of its decision, noting that:

[A] local government may decide to itself operate the public access channels on a local cable system (as many local governments in New York State and around the country already do), or could take appropriate steps to obtain a property interest in the public access channels.  Depending on the circumstances, the First Amendment might then constrain the local government’s operation of the public access channels.  We decide only the case before us in light of the record before us.

And beyond raising questions as to whether numerous other operators of public access channels are constrained by the First Amendment, the majority raises an even more cryptic possibility in a footnote:  “A distinct question not raised here is the degree to which the First Amendment protects the private entities such as Time Warner or MNN from government legislation or regulation requiring those private entities to open their property for speech by others.”

This question about compelled speech comes on the heels of a Federal Communications Commission (FCC or Commission) order last month to revise the Commission’s leased access requirements for cable systems, which found that recent technological developments have created “substantial doubt” about whether the leased access rules comported with the First Amendment.

Thus, despite the Supreme Court ruling, questions about the intersection between the First Amendment and cable programming are likely to continue both at the FCC and in the courts.

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