By Lisa Soronen
May a private entity running a public access channel ban speakers based on the content of their speech—something a government entity running a similar channel could not do?
Yes, the Supreme Court held in a 5-4 opinion in Manhattan Community Access Corporation v. Halleck. Why? Because the First Amendment doesn’t apply to private entities in this instance.
The Cable Communications Policy Act of 1984 authorizes states and local governments to require cable operators to set aside channels on their cable systems for public access. Under New York law, the cable operator operates the public access channels unless the local government chooses to do so or designates a private entity to do so.
New York City designated a private nonprofit, Manhattan Neighborhood Network (MNN), to operate the public access channels in Manhattan. MNN suspended two producers from its facilities and services after MNN ran a film they produced about MNN’s alleged neglect of the East Harlem community. The producers claimed 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 First Amendment only prohibits government, as opposed to private entities, abridgement of speech. In an opinion written by Justice Brett Kavanaugh, the Supreme Court held that private operators of public access cable channels aren’t state actors subject to the First Amendment. While the majority acknowledged that private entities may qualify as state actors in limited circumstances—including when the private entity performs a traditional, exclusive public function—the court concluded that exception doesn’t apply in this case.
“[A] private entity may qualify as a state actor when it exercises ‘powers traditionally exclusively reserved to the State.’ 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.”
According to the court, operating public access channels has not been “traditionally and exclusively” performed by the 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.”
The more liberal justices (Ruth Bader Ginsburg, Stephen Breyer and Elena Kagan) joined a dissenting opinion written by Justice Sonia Sotomayor. They concluded the First Amendment should apply in this case because MNN is acting as an agent of New York City. “New York City opened up a public forum on public access channels in which it has a property interest. It asked MNN to run that public forum, and MNN accepted the job. That makes MNN subject to the First Amendment, just as if the City had decided to run the public forum itself.”
Lisa Soronen is executive director of the State and Local Legal Center and a regular contributor to the NCSL Blog on judicial issues.