Thursday, June 20, 2019

Supreme Court issues narrow "state action" free speech ruling

The Supreme Court has ruled that a documentary filmmaker cannot sue a community access organization under the First Amendment, determining that the defendant is not a governmental actor and therefore cannot be held liable for any constitutional violation.

The case is Manhattan Community Access Corp. v. Halleck, issued on June 17. Cable television systems regularly feature public access programming, where members of the community can put on their own productions. The State of New York requires that channels be set aside for that purpose. The Manhattan Neighborhood Network was responsible for operating the public access channels in Manhattan. When the defendant suspended Halleck from using the public access channels after people complained about her film about MNN's neglect of the Harlem community, she sued in the Southern District, which ruled against her. The Second Circuit reversed and ruled in Halleck's favor. Halleck's victory is now gone. (Halleck is a former client of mine by the way; we sued the City of Kingston in 2008 over a different free speech violation).

The 5-4 majority notes that the First Amendment only regulates governmental behavior. Private entities cannot be sued under the First Amendment. How do we know when an entity is public or private? The Court notes that private entities are held to constitutional standards when they take on a traditional governmental function. Those functions are few and far between and include running elections. Most private entitles are not "state actors," including running nursing homes, electrical service. In a nutshell, conservatives like limited state action in these cases, and liberals like broad state action. Operating public access channels on a cable system is not a traditional governmental function, Justice Kavanaugh writes for the majority, so Halleck loses the case.

In dissent, Justice Sotomayor views this case from an entirely different angle, stating that the government appointed a private organization to administer a constitutional public forum, which cannot discriminate against speech based on viewpoint. Her is how Sotomayor sums it up:

This is a case about an organization appointed by the government to administer a constitutional public forum. (It is not, as the Court suggests, about a private property owner that simply opened up its property to others.) New York City (the City) secured a property interest in public-access television channels when it granted a cable franchise to a cable company. State regulations require those public-access channels to be made open to the public on terms that render them a public forum. The City contracted out the administration of that forum to a private organization, petitioner Manhattan Community Access Corporation (MNN). By accepting that agency relationship, MNN stepped into the City’s shoes and thus qualifies as a state actor, subject to the First Amendment like any other.

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