June 17, 2019

The Supreme Court rules that the cable company's public access channel is not a state actor.

Here's Manhattan Community Access Corp. v. Halleck, released moments ago. It's 5-4, written by Justice Kavanaugh, and the split is where you'll guess without looking.

From SCOTUSblog:
This was a case in which the public-access channel was sued after it suspended two people who produced a film that was critical of the channel from access to the channel's facilities and services.

Justice Kavanaugh emphasizes that the First Amendment's prohibitions apply only to state (governmental) actors and concludes that the threshold requirement of state action is missing here.

Kavanaugh writes that the producers' main argument is that the channel was exercising a "traditional, exclusive public function when it operates the public access channels on Time Warner's cable system in Manhattan." "We disagree," he says.

At first blush, it is the opposite lineup some might expect -- the conservatives finding that the First Amendment has no application, with the liberals voting the other way -- given talk about conservatives "weaponizing" the First Amendment to limit control regulation of communications businesses. (On the other hand, the end result here is limiting suits against a communications enterprise).
From the end of the majority opinion:
MNN is a private entity that operates public access channels on a cable system. Operating public access channels on a cable system is not a traditional, exclusive public function. 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.
From Justice Sotomayor's dissenting opinion (joined by Ginsburg, Breyer, and Kagan):
The majority is surely correct that “when a private entity provides a forum for speech, the private entity is not ordinarily constrained by the First Amendment.” That is because the majority is not talking about constitutional forums—it is talking about spaces where private entities have simply invited others to come speak. A comedy club can decide to open its doors as wide as it wants, but it cannot appoint itself as a government agent. The difference is between providing a service of one’s own accord and being asked by the government to administer a constitutional responsibility (indeed, here, existing to do so) on the government’s behalf.

To see more clearly the difference between the cases on which the majority fixates and the present case, leave aside the majority’s private comedy club. Imagine instead that a state college runs a comedy showcase each year, renting out a local theater and, pursuant to state regulations mandating open access to certain kinds of student activities, allowing students to sign up to perform on a first-come, first-served basis. Cf. Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819 (1995). After a few years, the college decides that it is tired of running the show, so it hires a performing-arts nonprofit to do the job. The nonprofit prefers humor that makes fun of a certain political party, so it allows only student acts that share its views to participate. Does the majority believe that the nonprofit is indistinguishable, for purposes of state action, from a private comedy club opened by local entrepreneurs?

23 comments:

narayanan said...

Justice Kavanaugh emphasizes that the First Amendment's prohibitions apply only to state (governmental) actors and concludes that the threshold requirement of state action is missing here.

Kavanaugh writes that the producers' main argument is that the channel was exercising a "traditional, exclusive public function when it operates the public access channels on Time Warner's cable system in Manhattan." "We disagree," he says.

All have heard - Fruit of the poisonous tree - a legal metaphor

Isn't the channel - Spawn of the State? (aka SATAN in some circles)

BarrySanders20 said...

Facebook and Twitter have smile emojis

Nobody said...

They have to be popping champagne in Silicon Valley.

Seeing Red said...

Federal action requires public access channels doesn’t it?

Gary Snodgrass said...

Is the state paying MNN for the channel? If not, then your college analogy doesn't work. If it is paying for the channel then the supreme court is wrong.

Gahrie said...

I thought public access channels were mandated by government for the express purpose of allowing the public to exercise their First Amendment rights. I disagree with the Conservatives on this one.

Birkel said...

This is much too complicated for quick and dirty analysis.

Gahrie said...

Is the state paying MNN for the channel? If not, then your college analogy doesn't work. If it is paying for the channel then the supreme court is wrong.

In most places public access channels are mandated by government, partly as an exchange that grants the cable company a monopoly.

Gahrie said...

When I sought permission to post on my local public access channel, I had to go through training mandated by the city I live in.

Fernandistein said...

If it is paying for the channel then the supreme court is wrong.

44% of them are already wrong.

gilbar said...

But what does "from access" mean? Where they critical of the access? Was the film shown over the channel? But I'm probably just parsing it incorrectly.

I'm pretty sure that meant that either
weren't allowed to Air (pipe?) their film on the channel
or
they weren't allowed to make any MORE films on the channel (or, use it's studio, editor, etc

Big Mike said...

I think the majority is wrong, but I you'd never know it from Sotomayor's strained logic. She is not the wise Latina; she's the dumb one.

gilbar said...

i went down to San Marcos Tx, in January 2010; the public access had a continuous loop announcing
There was a winter storm coming in
Temperatures were predicted to GET DOWN TO 32 DEGREES!
You Should DRIP YOUR PIPES!
Stockpile 4 days of food and medicine
{and, what we northerners though Most Hilarious }
MITTENS ARE WARMER THAN GLOVES

Apparently
a) houses in there are SO Poorly Insulated that if the outside temp reaches 32, pipes will burst
b)people Needed to
...i) Be told that Mittens were warmer than gloves
..ii) keep their hands warm, if the temp dropped below 50 degrees

It was the most entertaining thing i'd EVER seen on public access

(it ended up with freezing rain, causing a 1/4 inch of inch; that took Nearly TWO HOURS to melt)


tim maguire said...

Twitter?
Facebook?

There is case law on situations where a private entity sets up a "public square"--ex., parks in planned developments. I believe content neutral principles are applied.

That is my go to analogy for Twitter and Facebook (whose regulation I support). The difference here seems slight, but could potentially be found in the expense MNN incurs in hosting a public access show. Does the entity using the time pay for it? Or does MNN eat the cost? (And if MNN does absorb the cost, do they receive tax or other incentives for doing so?)

tim maguire said...

Big Mike said...
I think the majority is wrong, but I you'd never know it from Sotomayor's strained logic.


Agreed--I think they are wrong too, but Sotomayor's analogy is terrible.

Michael K said...

a) houses in there are SO Poorly Insulated that if the outside temp reaches 32, pipes will burst

Two longtime friends had a beautiful home in Chevy Chase. The house directly across the street was owned by the Director of the FDA.

When temperatures in that suburb of DC got below freezing, they had to open all their kitchen cabinets lest the pipes freeze.

mccullough said...

Seems more like the government requiring a private land owner to build a park as part of a development. The government can pass rules about the park as a forum. But when it doesn’t it is still the landowners land.

This problem is easily solved. Have the government require a public forum with no discrimination based on viewpoint.

Do the same for Facebook and Twitter.

The government can require private actors engaged in commerce to provide for free speech. But when it doesn’t, it’s up to the owner

rhhardin said...

I think the effort is to avoid tangling up the precedents any more than they already are. An early mistake leaves you having to come up with new bizarre tests to avoid precedenting-in an outright contradiction, done by means of exploding the test tree.

rhhardin said...

The way to get private owners to let everybody on is make them vulnerable to libel suits if they viewpoint discrimination. Then they're publishers rather than a bulletin board.

Yancey Ward said...

It would have been illuminating if the plaintiff had been someone like James O'Keefe. Do you think the liberal wing would have been willing to dissent? Would the conservative wing have argued for their majority decision in that case?

Sure, this case is on point with regards to how the court might view the actions of Twitter and Facebook, but there the originating plaintiffs will not have the political leanings of Halleck in this one.

narciso said...

No next question:

https://www.powerlineblog.com/archives/2019/06/left-blacklists-sarah-sanders.php

narciso said...

or kashuv's delisting from harvard, or American bridge, blacklisting sanders from corporate employment,

Tina Trent said...

How is this about deplatforming for political content?

Having investigated abuses of the public access station in Atlanta for my councilwoman, I'm confused as to how the system is organized in this case. In most places the studios, salaries, and equipment are entirely government-funded. Sometimes they're run through a city DOE. Typically there are boards appointed by council members. The cable service only provides the "bandwidth." And they're required to do so by the public entity.

I declined a seat on the Atlanta board to clean it up because rival rap gangs were shooting each other in the studio parking lot and broadcasting child porn with adolescent strippers from the politically-connected Chocolate City club. Of all the things not worth dying for, public access television is pretty high on the list, much as The Uncle Floyd Show enriched my youth.