Halleck v. Manhattan Cmty. Access Corp.

• Decision Date: 09 February 2018
• Docket Number: Docket No. 16-4155,August Term 2016
• Citation: 882 F.3d 300
• Parties: Deedee HALLECK, Jesus Papoleto Melendez, Plaintiffs–Appellants, v. MANHATTAN COMMUNITY ACCESS CORPORATION, Daniel Coughlin, Jeanette Santiago, Cory Bryce, City of New York, Defendants–Appellees.
• Court: U.S. Court of Appeals — Second Circuit

882 F.3d 300

Deedee HALLECK, Jesus Papoleto Melendez, Plaintiffs–Appellants,

v.MANHATTAN COMMUNITY ACCESS CORPORATION, Daniel Coughlin, Jeanette Santiago, Cory Bryce, City of New York, Defendants–Appellees.

Docket No. 16-4155

August Term 2016

United States Court of Appeals, Second Circuit.

Argued June 19, 2017

Decided February 9, 2018

Robert T. Perry, Brooklyn, NY, for Plaintiffs–Appellants.

Michael B. de Leeuw, (Tamar S. Wise, on the brief), Cozen O'Connor, New York, NY, for Defendants–AppelleesManhattan Community Access Corporation, Daniel Coughlin, Jeanette Santiago and Cory Bryce.

Scott N. Shorr, Asst. Corp.Counsel, New York, NY (Zachary W. Carter, Corp.Counsel of the City of New York, Claude S. Platton, Asst. Corp.Counsel, New York, NY, on the brief), for Defendant–Appellee City of New York.

Before: NEWMAN, JACOBS, and LOHIER, Circuit Judges.

JON O. NEWMAN, Circuit Judge

This appeal presents the issue of whether the First Amendment's limitation on governmental restriction of free speech applies, in the circumstances of this case, to the operators of public access television channels.More specifically, the main issue is whether the Amendment applies to employees of a non-profit corporation, designated by the Manhattan Borough President to oversee public access TV channels, who are alleged to have suspended individuals involved in public access TV programming from using the corporation's facilities.This issue arises on an appeal by Deedee Halleck and Jesus Papoleto Melendez from the December 14, 2016, judgment of the District Court for the Southern District of New York(William H. Pauley III, District Judge).SeeHalleck v. City of New York , 224 F.Supp.3d 238(S.D.N.Y.2016).The judgment dismissed, for failure to state a valid claim, the Plaintiffs–Appellants' complaint against Manhattan Community Access Corporation("MCAC"); three of its employees, Daniel Coughlin, Jeanette Santiago, and Cory Bryce; and the City of New York(the "City").The complaint alleged violations of 42 U.S.C. § 1983;Article 1, Section 8 of the New York State Constitution ; and Article 7 of the New York State Public Officers Law.

We conclude that the public access TV channels in Manhattan are public forums and that MCAC's employees were sufficiently alleged to be state actors taking action barred by the First Amendment to prevent dismissal of the claims against MCAC and its employees, but not against the City.We therefore affirm in part, reverse in part, and remand.

Background

Statutory, regulatory, and contractual framework.The Cable Communications Policy Act of 1984 (the "Act") has special provisions for two categories of cable TV channels—leased channels and public, educational, or governmental channels."[T]o promote competition in the delivery of diverse sources of video programming,"47 U.S.C. § 532(a), the Act requires cable system operators to "designate channel capacity for commercial use by persons unaffiliated with the operator,"id.§ 532(b)(1).These are generally called "leased channels."SeeDenver Area Educational Telecommunications Consortium, Inc. v. FCC , 518 U.S. 727, 734, 116 S.Ct. 2374, 135 L.Ed.2d 888(1996)(" Denver Area ").

The Act also authorizes cable franchising authorities to require for franchise renewal "that channel capacity be designated for public, educational, or governmental use,"47 U.S.C. § 531(b), and to require "adequate assurance that the cable operator will provide adequate public, educational, and governmental access channel capacity, facilities, or financial support,"id.§ 541(a)(4)(B).These are what Justice Kennedy's opinion in Denver Area called "PEG access channels."518 U.S. at 781, 116 S.Ct. 2374.Public access channels, the P in PEG, are "available at low or no cost to members of the public, often on a first-come, first-served basis."Id. at 791, 116 S.Ct. 2374.¹

In New York, a Public Service Commission regulation requires a cable TV system with a capacity for 36 or more channels to "designate ... at least one full-time activated channel for public access use."N.Y. Comp. Codes R. & Regs. tit. 16, § 895.4(b)(1).The regulation defines a public access channel as a channel "designated for noncommercial use by the public on a first-come, first-served, nondiscriminatory basis."Id.§ 895.4(a)(1).

The City awarded cable franchises for Manhattan to Time Warner Entertainment Company, L.P.("Time Warner").First Amended Complaint ("FAC")¶ 30.The franchise agreement for Northern Manhattan provides that Time Warner will provide four public access channels.The agreement recites that the Manhattan Borough President has designated a not-for-profit, nonmembership corporation to serve as the Community Access Organization ("CAO") for the borough "under whose jurisdiction the Public Access Channels shall be placed for purposes of Article 8 of this Agreement," which applies to public, educational, and governmental services.That CAO is the Defendant–Appellee MCAC, known as Manhattan Neighborhood Network ("MNN").

Allegations of First Amendment violations.Plaintiffs–AppellantsDeedee Halleck and Jesus Papoleto Melendez alleged that MNN, three of its employees, and the City violated their First Amendment rights by suspending them from using MNN's public access channels because of disapproval of the content of a TV program that Halleck had submitted to MNN's programming department for airing on MNN's public access channel.This claim is based on the following factual allegations, which we accept as true for purposes of reviewing, de novo , the dismissal of the complaint.

Both Halleck and Melendez have been involved in producing public access programming in Manhattan.In July 2012, MNN held an event to mark the opening of the El Barrio Firehouse Community Media Center ("El Barrio Firehouse").Halleck and Melendez stood outside, interviewing invitees.In August or September 2012, Halleck submitted to MNN for airing on MNN's public access channels a video entitled "The 1% Visits the Barrio," based on video footage taken at the El Barrio Firehouse opening (the "1% video").The 1% video presented the Plaintiffs' view that MNN was "more interested in pleasing ‘the 1%’ than addressing the community programming needs of those living in East Harlem."FAC ¶ 83.MNN aired the 1% video on public access channels in October 2012.

In a letter dated October 11, 2012, defendantJeanette Santiago, MNN's Programming Director, informed Halleck that she was suspended for three months from airing programs over MNN's public access channels.Santiago stated that the 1% video violated MNN's program content restrictions barring "participation in harassment or aggravated threat toward staff and/or other producers."FAC ¶ 86.²The Plaintiffs allege that Halleck was suspended because the 1% video "presented the view that MNN was more interested in pleasing ‘the 1%’ than addressing the community programming needs of those living in East Harlem."FAC ¶ 97.

In a letter dated August 1, 2013, defendantDaniel Coughlin, MNN's executive director, suspended Melendez indefinitely from all MNN services and facilities.Coughlin claimed that at an encounter in July 2013 Melendez had "pushed him over."FAC ¶ 106.The Plaintiffs allege that Melendez was suspended because of the views he expressed in the 1% video.In a letter dated August 9, 2013, Coughlin suspended Halleck for one year from all MNN services and facilities, claiming receipt of complaints about the 1% video.Although Halleck's suspension has ended, she cannot air the 1% video on any public access channels in Manhattan.By letter dated April 24, 2015, defendantCory Brice,³ MNN's manager of production and facilitation, confirmed Melendez's indefinite suspension.

District Court opinion.With respect to the Plaintiffs' First Amendment claim against MNN, the District Court recognized that the claim, pursued under 42 U.S.C. § 1983, was viable only if MNN was a state actor because the First Amendment limits only governmental action.Acknowledging that MNN was a private entity, the Court first considered whether its actions might be subject to the First Amendment because " ‘[a]ctions of private entities can sometimes be regarded as governmental action for constitutional purposes.’ "Halleck , 224 F.Supp.3d at 243(quotingLebron v. National R.R. Passenger Corp. , 513 U.S. 374, 378, 115 S.Ct. 961, 130 L.Ed.2d 902(1995) ).The District Court noted that in Lebronthe Supreme Court had stated that " ‘where ... the Government creates a corporation by special law, for the furtherance of governmental objectives, and retains for itself permanent authority to appoint a majority of the directors of that corporation, the corporation is part of the Government for purposes of the First Amendment.’ "Id.(quotingLebron , 513 U.S. at 399, 115 S.Ct. 961 ).The District Court deemed Lebron inapplicable because the Manhattan Borough President had authority to appoint only two of the thirteen members of MNN's board.Seeid.

The District Court then considered whether the First Amendment might apply to MNN's actions on the theory that a public access channel is a public forum.SeePerry Education Assn. v. Perry Local Educators' Assn. , 460 U.S. 37, 45, 103 S.Ct. 948, 74 L.Ed.2d 794(1983)(recognizing traditional and designated public forums).Judge Pauley noted that Justices of the Supreme Court have taken different positions on the public forum issue, seeHalleck , 224 F.Supp.3d at 245(citing opinions of Justices Kennedy and Thomas with respect to public access channels and Justice Breyer with respect to leased channels), as have courts of appeals and district courts within the Second Circuit, seeid. at 244–46.

Deeming the issue a "close call,"id. at 246, Judge Pauley ruled that a public access channel is not a public forum for two reasons.First, he observed that " ‘[t]he ownership and operation of an entertainment facility are not powers traditionally exclusively reserved to the State, nor are they...