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Monday, June 17, 2019

No state action in administering public-access cable channels (Updated)

In Manhattan Community Access Corp. v. Halleck, SCOTUS held that the private non-profit corporation designated by New York City to manage state-required public-access cable channels was not a state actor, so not subject to First Amendment limitations in banning a speaker from the channels. Justice Kavanaugh wrote for the Chief, Thomas, Alito, and Gorsuch; Justice Sotomayor dissented for four.

The opinions seemed to look at different facts triggering different analyses.

The majority applied the public-function cases, which hold that a private actor only performs a public function if it is traditionally and exclusively performed by government; "operation of public access channels on a cable system" has not been exclusively performed by government. The majority rejected a more general description of the function as managing a public forum; merely hosting speech does not create state action. And the city's designation of the corporation to operate the channels was equivalent to granting a license or to regulating the private entity, neither of which is sufficient.

The dissent argued that this was not a case of public regulation of a private entity, but of government delegation of a constitutional obligation to an entity created (with government assistance) for purposes of assuming that obligation. The city retained an interest in transmitting certain content (whatever goes on the public-access channels) over the privately owned cable or in regulating the transmission of content over that cable; Sotomayor analogized the cable to a privately owned billboard where the government contracted to access to space on the billboard in exchange for allowing the private company to place it. Given this property interest and the nature of the space as a forum for speech, the case was controlled not by the regulated-entity cases, but by the cases in which government delegated a constitutional obligation to a private entity. Managing a designated public forum is akin to providing medical care for prisoners--government is not required to designate public forums or imprison people; having done so, it incurs constitutional obligations in how it does so; and private persons assume those responsibilities when government delegates its constitutional responsibilities. The distinction is between a private entity entering the marketplace to do a job and the government hiring a private agent to perform its tasks; in the latter situation,the question is not whether the task is traditional and exclusive, but whether the government had an obligation to perform that function.

The majority attempted to narrow its decision, emphasizing that this was not a case of a delegated constitutional obligation, of the city maintaining a property interest in the channels, or of the city managing the channels itself. But the majority did not address or hint at the case the dissent believed this case to be--the government opening a public forum, then delegating management to a private entity (created for that purpose). It also is worth watching whether some municipalities in New York cease managing the P/A channels and delegate to private entities.

In an event, this decision should, for the moment, take care of people complaining about being banned from Twitter and YouTube. Update: Ken White of Popehat has a Twitter thread on why the arguments in favor of regulating platforms have no support on the Court--all nine Justices accept the starting proposition that a private actor who opens private space for speech does not become a state actor.

Posted by Howard Wasserman on June 17, 2019 at 04:51 PM in Civil Procedure, First Amendment, Howard Wasserman | Permalink


Enrique Armijo,

Just a better citation from the ruling,illustrating ,that regulation is not the issue( but rather as stated, traditional function made by government typically)here:

In Jackson v. Metropolitan Edison Co., the leading case on point, the Court stated that the “fact that a business is subject to state regulation does not by itself convert its action into that of the State.” 419 U. S., at 350. In that case, the Court held that “a heavily regulated, privately owned utility, enjoying at least a partial monopoly in the providing of electrical service within its territory,” was not a state actor.


Posted by: El roam | Jun 18, 2019 4:53:59 PM

Enrique Armijo,

good illustration indeed. But, pay attention, the majority and the minority, agree that regulation per se, alone, is not the sole issue. Banks for example, are heavily regulated, but they are not state actors. The same for clinics or physicians and so forth...... Here I quote the dissenting:

MNN is not a private entity that simply ventured into the marketplace. It occupies its role because it was asked to do so by the City, which secured the public-access channels in exchange for giving up public rights of way, opened those channels up (as required by the State) as a public forum, and then deputized MNN to administer them.

And more concretely to the point, continuing the citation:

That distinguishes MNN from a private entity that simply sets up shop against a regulatory backdrop. To say that MNN is nothing more than a private organization regulated by the government is like saying that a waiter at a restaurant is an independent food seller who just happens to be highly regulated by the restaurant’s owners.

End of quotation:

So, a waiter at a restaurant, is surly " regulated " by the owner. But, that has nothing to do with defining his status in this regard. By the way, this is part of the problem. Because in other judiciary or rules in other states in the world, there is such status of, let's say: Hybrid corporation. A corporation, which is heavily regulated, designated for serving public ( in critical domains at least ) and it has some burden, at least partly, as public authority. In such, the main test is not whether the corporation or body is fulfilling traditional governmental functions, but, public function per se, and critical one, like banks for example.


Posted by: El roam | Jun 18, 2019 4:18:30 PM

El roam's point is a good one - I use a similar example I use in my own work, i.e., if my town hired a private contractor to pick up my neighborhood's trash, and one week that contractor refused to pick up my trash because I was Hispanic but picked up all my white neighbors' trash, would I have an equal protection claim against the contractor. And it's not hard to think of many more hypos involving much more serious concerns than trash bins that have been out for too long. This is what the dissenters in Halleck are worried about, with good reason. It's not just a First Amendment issue.

And as Howard notes, the majority never responds to this concern. All they say is that the constitution might follow the agreement between the government and the contractor if the contract is for something only the government does, but that is not the case here. And instead of dealing with that fundamental concern, the majority responds to and rebuts several other arguments that the dissent does not make, such as the argument that the non-profit is a state actor because it is heavily regulated by the state.

Posted by: Enrique Armijo | Jun 18, 2019 3:05:35 PM

Important indeed. But it seems we have here confusion or mixture of issues:

The issue, is not really first amendment. The issue is whether delegating public assets or rights to a private entity, and for public services ( whether traditionally or not ) can make or create obligation on the private entity, running it, not to discriminate generally speaking, and anyway, in terms of the first amendment also. Because:

It is hard to legally assume , that such private entity, can't discriminate ( no debate here concerning the discrimination per se ) yet, when it comes to first amendment, it can simply. One may argue, that it can't discriminate, because, the mandate or obligation granted to it, is by public authority. Funded by public money. So, the city itself, had the duty, to create contractual obligation, that would at first place, eliminate, any sort of discrimination while using public money and assets ( whether first amendment or other ).

Yet, one may argue, that the Q is back to the issue:

And it is whether, the public authority, has legal or constitutional obligation, not to discriminate, and anyway, to delegate such obligation, to private contractor.


Posted by: El roam | Jun 17, 2019 6:18:20 PM

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