The Supreme Court recently clarified the state-action doctrine in Manhattan Community Access Corp. v. Halleck. The result has made it all the more important for content creators to understand the types of entities hosting their content.
The plaintiffs in Halleck alleged that MNN, the private nonprofit that manages the New York City public access channels, violated their First Amendment rights by restricting them from using the channels based on the content of their programs.
Justice Kavanaugh, writing for the majority, disagreed, essentially saying “no way.” Since public access channels began in the 1970s, they have been run by a combination of private and public entities. Because running a public access channel is “not a traditional, exclusive public function,” the Court concluded, MNN is not a state actor, regardless of whether it provides a public forum for speech or whether it is subject to regulation. As a private entity, MNN is free to exert editorial control over the content it airs, without the constraints of the First Amendment.
The Court also rejected the plaintiffs’ alternative argument, adopted by Justice Sotomayor in the dissent (“way”), that MNN “is in essence simply managing government property on behalf of New York City,” and is therefore performing a public function. The problem, according to the majority, is that New York City doesn’t own the channels—a private entity does. The fact that the City was legally required to obtain public access channels and fulfilled that requirement through a franchise agreement with a private entity does not give the City a property interest in the channels. Because there is no traditional, exclusive public function, MNN is not a state actor.
Although the majority purported to confine its opinion to the specific characteristics of New York’s public access channel regime, Halleck has broader implications beyond the Big Apple. The Court has given private entities a little more security in making editorial decisions, but it has also narrowed the protection of the First Amendment for unpopular speech, both for the speaker and the publisher. As a practical matter, the degree of First Amendment protection for public access channels could now vary dramatically based on how the local government elects to meet its responsibilities to provide these channels. And to the extent the Court continues to find that public forums run by private entities are not subject to First Amendment constraints, this has further implications for challenges to editorial decisions of private entities running other public platforms, some of which have come under scrutiny for a perceived lack of content control. Exactly how broadly lower courts interpret the decision in Halleck remains to be seen. Until then, party on!
