__ U.S. __ (2019), 17-1702, Manhattan Community Access Corp. v. Halleck

Docket Nº:17-1702
Citation:__ U.S. __, 139 S.Ct. 1921
Opinion Judge:KAVANAUGH Justice.
Party Name:MANHATTAN COMMUNITY ACCESS CORPORATION, et al., Petitioners v. Deedee HALLECK, et al.
Attorney:Robert T. Perry, Brooklyn, NY, Eugene Volokh, UCLA School of Law, Los Angeles, CA, Eugene R. Fidell, Yale Law School Supreme Court Clinic, New Haven, CT, Paul W. Hughes, Michael B. Kimberly, Andrew J. Pincus, Charles A. Rothfeld, Mayer Brown LLP, Washington, DC, for Respondents. Michael B. de Lee...
Judge Panel:KAVANAUGH, J., delivered the opinion of the Court, in which ROBERTS, C. J., and THOMAS, ALITO, and GORSUCH, JJ., joined. SOTOMAYOR, J., filed a dissenting opinion, in which GINSBURG, BREYER, and KAGAN, JJ., joined. Justice SOTOMAYOR, with whom Justice GINSBURG, Justice BREYER, and Justice KAGAN j...
Case Date:June 17, 2019
Court:United States Supreme Court
 
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Page __

__ U.S. __ (2019)

139 S.Ct. 1921

MANHATTAN COMMUNITY ACCESS CORPORATION, et al., Petitioners

v.

Deedee HALLECK, et al.

No. 17-1702

United States Supreme Court

June 17, 2019

Argued February 25, 2019

Syllabus

[*]

New York state law requires cable operators to set aside channels on their cable systems for public access. Those channels are operated by the cable operator unless the local government chooses to itself operate the channels or designates a private entity to operate the channels. New York City (the City) has designated a private nonprofit corporation, petitioner Manhattan Neighborhood Network (MNN), to operate the public access channels on Time Warner’s cable system in Manhattan. Respondents DeeDee Halleck and Jesus Papoleto Melendez produced a film critical of MNN to be aired on MNN’s public access channels. MNN televised the film. MNN later suspended Halleck and Melendez from all MNN services and facilities. The producers sued, claiming that MNN violated their First Amendment free-speech rights when it restricted their access to the public access channels because of the content of their film. The District Court dismissed the claim on the ground that MNN is not a state actor and therefore is not subject to First Amendment constraints on its editorial discretion. Reversing in relevant part, the Second Circuit concluded that MNN is a state actor subject to First Amendment constraints.

Held : MNN is not a state actor subject to the First Amendment. Pp. 1928 - 1934.

(a) The Free Speech Clause of the First Amendment prohibits only governmental, not private, abridgment of speech. See, e.g., Denver Area Ed. Telecommunications Consortium, Inc. v. FCC, 518 U.S. 727, 737, 116 S.Ct. 2374, 135 L.Ed.2d 888. This Court’s state-action doctrine distinguishes the government from individuals and private entities. Pp. 1928 - 1933.

(1) A private entity may qualify as a state actor when, as relevant here, the entity exercises "powers traditionally exclusively reserved to the State." Jackson v. Metropolitan Edison Co., 419 U.S. 345, 352, 95 S.Ct. 449, 42 L.Ed.2d 477. The Court has stressed that "very few" functions fall into that category. Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 158, 98 S.Ct. 1729, 56 L.Ed.2d 185. The relevant function in this case— operation of public access channels on a cable system— has not traditionally and exclusively been performed by government. Since the 1970s, a variety of private and public actors have operated public access channels. Early Manhattan public access channels were operated by private cable operators with some help from private nonprofit organizations. That practice continued until the early 1990s, when MNN began to operate the channels. Operating public access channels on a cable system is not a traditional, exclusive public function. Pp. 1928 - 1930.

(2) The producers contend that the relevant function here is more generally the operation of a public forum for speech, which, they claim, is a traditional, exclusive public function. But that analysis mistakenly ignores the threshold state-action question. Providing some kind of forum for speech is not an activity that only governmental entities have traditionally performed. Therefore, a private entity who provides a forum for speech is not transformed by that fact alone into a state actor. See Hudgens v. NLRB, 424 U.S. 507, 520-521, 96 S.Ct. 1029, 47 L.Ed.2d 196. Pp. 1929 - 1931.

(3) The producers note that the City has designated MNN to operate the public access channels on Time Warner’s cable system, and that the State heavily regulates MNN with respect to those channels. But the City’s designation is analogous to a government license, a government contract, or a government-granted monopoly, none of which converts a private entity into a state actor— unless the private entity is performing a traditional, exclusive public function. See, e.g., San Francisco Arts & Athletics, Inc. v. United States Olympic Comm., 483 U.S. 522, 543-544, 107 S.Ct. 2971, 97 L.Ed.2d 427. And the fact that MNN is subject to the State’s extensive regulation "does not by itself convert its action into that of the State." Jackson, 419 U.S. at 350, 95 S.Ct. 449. Pp. 1931 - 1933.

(b) The producers alternatively contend that the public access channels are actually the City’s property and that MNN is essentially managing government property on the City’s behalf. But the City does not own or lease the public access channels and does not possess any formal easement or other property interest in the channels. It does not matter that a provision in the franchise agreements between the City and Time Warner allowed the City to designate a private entity to operate the public access channels on Time Warner’s cable system. Nothing in the agreements suggests that the City possesses any property interest in the cable system or in the public access channels on that system. Pp. 1933 - 1934.

882 F.3d 300, reversed in part and remanded.

KAVANAUGH, J., delivered the opinion of the Court, in which ROBERTS, C. J., and THOMAS, ALITO, and GORSUCH, JJ., joined. SOTOMAYOR, J., filed a dissenting opinion, in which GINSBURG, BREYER, and KAGAN, JJ., joined.

[139 S.Ct. 1924] Robert T. Perry, Brooklyn, NY, Eugene Volokh, UCLA School of Law, Los Angeles, CA, Eugene R. Fidell, Yale Law School Supreme Court Clinic, New Haven, CT, Paul W. Hughes, Michael B. Kimberly, Andrew J. Pincus, Charles A. Rothfeld, Mayer Brown LLP, Washington, DC, for Respondents.

Michael B. de Leeuw, Tamar S. Wise, Stuart A. Shorenstein, Jesse R. Loffler, Cozen O’Connor, New York, NY, for Petitioners.

OPINION

KAVANAUGH Justice.

[139 S.Ct. 1926] The Free Speech Clause of the First Amendment constrains governmental actors and protects private actors. To draw the line between governmental and private, this Court applies what is known as the state-action doctrine. Under that doctrine, as relevant here, a private entity may be considered a state actor when it exercises a function "traditionally exclusively reserved to the State." Jackson v. Metropolitan Edison Co., 419 U.S. 345, 352, 95 S.Ct. 449, 42 L.Ed.2d 477 (1974).

This state-action case concerns the public access channels on Time Warner’s cable system in Manhattan. Public access channels are available for private citizens to use. The public access channels on Time Warner’s cable system in Manhattan are operated by a private nonprofit corporation known as MNN. The question here is whether MNN— even though it is a private entity— nonetheless is a state actor when it operates the public access channels. In other words, is 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.

Under the state-action doctrine as it has been articulated and applied by our precedents, we conclude that operation of public access channels on a cable system is not a traditional, exclusive public function. Moreover, a private entity such as MNN who opens its property for speech by others is not transformed by that fact alone into a state actor. In operating the public access channels, MNN is a private actor, not a state actor, and MNN therefore is not subject to First Amendment constraints on its editorial discretion. We reverse in relevant part the judgment of the Second Circuit, and we remand the case for further proceedings consistent with this opinion.

I

A

Since the 1970s, public access channels have been a regular feature on cable television systems throughout the United States. In the 1970s, Federal Communications Commission regulations required certain cable operators to set aside channels on their cable systems for public access. In 1979, however, this Court ruled that the FCC lacked statutory authority to impose that mandate. See FCC v. Midwest Video Corp., 440 U.S. 689, 99 S.Ct. 1435, 59 L.Ed.2d 692 (1979). A few years later, Congress passed and President Reagan signed the Cable Communications Policy Act of 1984. 98 Stat. 2779. The Act authorized state and local governments to require cable operators to set aside channels on their cable systems for public access. 47 U.S.C. § 531(b).

The New York State Public Service Commission regulates cable franchising in New York State and requires cable operators in the State to set aside channels on their cable systems for public access. 16 N.Y. Codes, Rules & Regs. § § 895.1(f), 895.4(b) (2018). State law requires that use of the public access channels be free of charge and first-come, first-served. § § 895.4(c)(4) and (6). Under state law, the cable operator operates the public access [139 S.Ct. 1927] channels unless the local government in the area chooses to itself operate...

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