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Manhattan Community Access Corp. v. Halleck

United States Supreme Court

June 17, 2019

MANHATTAN COMMUNITY ACCESS CORPORATION, ET AL., PETITIONERS
v.
DEEDEE HALLECK, ET AL.

          Argued February 25, 2019

          ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT No. 17-1702.

         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 MNNs 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. 5- 16.

(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. This Court's state-action doctrine distinguishes the government from individuals and private entities. Pp. 5-14.
(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. The Court has stressed that "very few" functions fall into that category. Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 158. 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. 6-8.
(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. Pp. 8-10.
(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. 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. Pp. 11-14.
(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. 14-15.
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 GlNSBURG, BREYER, and KAGAN, JJ., joined.

          OPINION

          KAVANAUGH JUSTICE

         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 (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 (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 channels unless the local government in the area chooses to itself operate the channels or designates a private entity to operate the channels. §895.4(c)(1).

         Time Warner (now known as Charter) operates a cable system in Manhattan. Under state law, Time Warner must set aside some channels on its cable system for public access. New York City (the City) has designated a private nonprofit corporation named Manhattan Neighborhood Network, commonly referred to as MNN, to operate Time Warner's public access channels in Manhattan. This case involves a complaint against MNN regarding its management of the public access channels.

         B

         Because this case comes to us on a motion to dismiss, we accept the allegations in the complaint as true. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

         DeeDee Halleck and Jesus Papoleto Melendez produced public access programming in Manhattan. They made a film about MNN's alleged neglect of the East Harlem community. Halleck submitted the film to MNN for airing on MNN's public access channels, and MNN later televised the film. Afterwards, MNN fielded multiple complaints about the film's content. In response, MNN temporarily suspended Halleck from using the public access channels.

         Halleck and Melendez soon became embroiled in another dispute with MNN staff. In the wake of that dispute, MNN ultimately suspended Halleck and Melendez from all MNN services and facilities.

         Halleck and Melendez then sued MNN, among other parties, in Federal District Court. The two producers claimed that MNN violated their First Amendment free-speech rights when MNN restricted their access to the public access channels because of the content of their film.

         MNN moved to dismiss the producers' First Amendment claim on the ground that MNN is not a state actor and therefore is not subject to First Amendment restrictions on its editorial discretion. The District Court agreed with MNN and dismissed the producers' First Amendment claim.

         The Second Circuit reversed in relevant part. 882 F.3d 300, 308 (2018). In the majority opinion authored by Judge Newman and joined by Judge Lohier, the court stated that the public access channels in Manhattan are a public forum for purposes of the First Amendment. Reasoning that "public forums are usually operated by governments," the court concluded that MNN is a state actor subject to First Amendment constraints. Id., at 306-307. Judge Lohier added a concurring opinion, explaining that MNN also qualifies as a state actor for the independent reason that "New York City delegated to MNN the traditionally public function of administering and regulating speech in the public forum of Manhattan's public access channels." Id., at 309.

         Judge Jacobs dissented in relevant part, opining that MNN is not a state actor. He reasoned that a private entity's operation of an open forum for speakers does not render the host entity a state actor. Judge Jacobs further stated that the operation of public access channels is not a traditional, exclusive public function.

         We granted certiorari to resolve disagreement among the Courts of Appeals on the question whether private operators of public access cable channels are state actors subject to the First Amendment. 586 U.S. ___ (2018). Compare 882 F.3d 300 (case below), with Wilcher v. Akron, 498 F.3d 516 (CA6 2007); and Alliance for Community Media v. FCC, 56 F.3d 105 (CADC 1995).

         II

         Ratified in 1791, the First Amendment provides in relevant part that "Congress shall make no law . . . abridging the freedom of speech." Ratified in 1868, the Fourteenth Amendment makes the First Amendment's Free Speech Clause applicable against the States: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law . . . ." §1. The text and original meaning of those Amendments, as well as this Court's longstanding precedents, establish that the Free Speech Clause prohibits only governmental abridgment of speech. The Free Speech Clause does not prohibit private abridgment of speech. See, e.g., Denver Area Ed. Telecommunications Consortium, Inc. v. FCC, 518 U.S. 727, 737 (1996) (plurality opinion); Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., 515 U.S. 557, 566 (1995); Hudgens v. NLRB, 424 U.S. 507, 513 (1976); cf. Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 256 (1974).

         In accord with the text and structure of the Constitution, this Court's state-action doctrine distinguishes the government from individuals and private entities. See Brentwood Academy v. Tennessee Secondary School Athletic Assn., 531 U.S. 288, 295-296 (2001). By enforcing that constitutional boundary between the governmental and the private, the state-action doctrine protects a robust sphere of individual liberty.

         Here, the producers claim that MNN, a private entity, restricted their access to MNN's public access channels because of the content of the producers' film. The producers have advanced a First Amendment claim against MNN. The threshold problem with that First Amendment claim is a fundamental one: MNN is a private entity.

         Relying on this Court's state-action precedents, the producers assert that MNN is nonetheless a state actor subject to First Amendment constraints on its editorial discretion. Under this Court's cases, a private entity can qualify as a state actor in a few limited circumstances- including, for example, (i) when the private entity performs a traditional, exclusive public function, see, e.g., Jackson, 419 U.S., at 352-354; (ii) when the government compels the private entity to take a particular action, see, e.g., Blum v. Yaretsky, Abl U.S. 991, 1004-1005 (1982); or (iii) when the government acts jointly with the private entity, see, e.g., Lugar v. Edmondson Oil Co., 457 U.S. 922, 941-942 (1982).

         The producers' primary argument here falls into the first category: The producers contend that MNN exercises a traditional, exclusive public function when it operates the public access channels on Time Warner's cable system in Manhattan. We disagree.

         A

         Under the Court's cases, a private entity may qualify as a state actor when it exercises "powers traditionally exclusively reserved to the State." Jackson, 419 U.S., at 352. It is not enough that the federal, state, or local government exercised the function in the past, or still does. And it is not enough that the function serves the public good or the public interest in some way. Rather, to qualify as a traditional, exclusive public function within the meaning of our state-action precedents, the government must have traditionally and exclusively performed the function. See RendellJ3aker v. Kohn, 457 U.S. 830, 842 (1982); Jackson, 419 U.S., at 352-353; Evans v. Newton, 382 U.S. 296, 300 (1966).

         The Court has stressed that "very few" functions fall into that category. Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 158 (1978). Under the Court's cases, those functions include, for example, running elections and operating a company town. See Terry v. Adams, 345 U.S. 461, 468-470 (1953) (elections); Marsh v. Alabama, 326 U.S. 501, 505-509 (1946) (company town); Smith v. Allwright, 321 U.S. 649, 662-666 (1944) (elections); Nixon v. Condon, 286 U.S. 73, 84-89 (1932) (elections).[1] The Court has ruled that a variety of functions do not fall into that category, including, for example: running sports associations and leagues, administering insurance payments, operating nursing homes, providing special education, representing indigent criminal defendants, resolving private disputes, and supplying electricity. See American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 55-57 (1999) (insurance payments); National Collegiate Athletic Assn. v. Tarkanian, 488 U.S. 179, 197, n. 18 (1988) (college sports); San Francisco Arts & Athletics, Inc. v. United States Olympic Comm., 483 U.S. 522, 544-545 (1987) (amateur sports); Blum, 457 U.S., at 1011-1012 (nursing home); Rendell-Baker, 457 U.S., at 842 (special education); Polk County v. Dodson, 454 U.S. 312, 318-319 (1981) (public defender); Flagg Bros., 436 U.S., at 157-163 (private dispute resolution); Jackson, 419 U.S., at 352-354 (electric service).

         The relevant function in this case is operation of public access channels on a cable system. That function has not traditionally and exclusively been performed by government.

         Since the 1970s, when public access channels became a regular feature on cable systems, a variety of private and public actors have operated public access channels, including: private cable operators; private nonprofit organizations; municipalities; and other public and private community organizations such as churches, schools, and libraries. See Denver Area, 518 U.S., at 761-762 (plurality opinion); R. Oringel & S. Buske, The Access Manager's Handbook: A Guide for Managing Community Television 14-17 (1987).

         The history of public access channels in Manhattan further illustrates the point. In 1971, public access channels first started operating in Manhattan. See D. Brenner, M. Price, & M. Meyerson, Cable Television and Other Nonbroadcast Video §6:29, p. 6-47 (2018). Those early Manhattan public access channels were operated in large part by private cable operators, with some help from private nonprofit organizations. See G. Gillespie, Public Access Cable Television in the United States and Canada 37-38 (1975); Janes, History and Structure of Public Access Television, 39 J. Film & Video, No. 3, pp. 15-17 (1987). Those private cable operators continued to operate the public access channels until the early 1990s, when MNN (also a private entity) began to operate the public access channels.

         In short, operating public access channels on a cable system is not a traditional, exclusive public function within the meaning of this Court's cases.

         B

         To avoid that conclusion, the producers widen the lens and contend that the relevant function here is not simply the operation of public access channels on a cable system, but rather is more generally the operation of a public forum for speech. And according to the producers, ...


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