Monday, February 12, 2018

Public access channel in NYC is a public forum under the First Amendment

The Court of Appeals holds that a public access non-profit elevision channel in New York City is a public forum for purposes of the First Amendment, which means it can be sued for suspending individuals involved in public access TV programming from using the corporation's facilities.

The case is Halleck v. Manhattan Community Access Corp., decided on February 9. The public forum doctrine is among the most complicated issues in constitutional law. If an entity is a public forum, the First Amendment places great restrictions on how the entity can regulate speech, especially political speech. We normally associate public forums with public entities, like the lawn in front of City Hall or a public square. But in this case, the defendant is a non-profit TV entity that is not quite a governmental organization.

A public service commission regulation in New York requires a cable TV system with a capacity for 36 or more channels to designate at least one full-time channel for public access use. Manhattan Community Access got the cable franchise in New York City.  Plaintiffs were suspended from the public access channel because of disapproval of the content of a TV program that Halleck had submitted to defendant's programming department. At first glance, you would think plaintiffs could not sue the community access channel because it is a private entity, and the constitution does not regulate private entities. But the Court of Appeals (Newman and Lohier, with Jacobs in dissent) says the channel is a state actor for First Amendment purposes, and therefore may be sued.

The majority parses a lengthy Supreme Court ruling, Denver Areas Educ. Telecomm. Consortium v. FCC, 518 U.S. 727 (1996). That case produced six separate opinions. The Second Circuit adopts the reasoning from Justices Kennedy and Ginsburg, who said "A public access channel is a public forum" as "they provide groups and individuals who generally have not had access to the electronic media with the opportunity to become sources of information in the electronic marketplace of ideas." They added that "public access channels are public fora created by local or state governments in the cable franchise."

The Second Circuit concludes that "because facilities or locations deemed to be public forums are usually operated by governments, determining that a particular facility or location is a public forum usually suffices to render the challenged action taken there to be state action subject to First Amendment limitations."  But for plaintiffs to proceed in this case (it was dismissed for failure to state a claim), they must show the individuals behind the censorship decision "have a sufficient connection to governmental authority to be deemed state actors." They do. The Manhattan Borough President designated Manhattan Community Access Corp. to run the public access channels, so the employees of that corporation are not "interlopers in a public forum" but instead "are exercising precisely the authority to administer such a forum conferred on them by a senior municipal official."

The complex nature of this case is reflected in the concurring opinion by Judge Lohier and Judge Jacob's dissent, as well as the flurry of district court rulings that have reached conflicting results. But for now, the law is settled in the Second Circuit on this issue. The case is remanded for discovery.

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