Supreme Court: Public Access TV Not Bound by First Amendment

Supreme Court Associate Justice Brett Kavanaugh in Washington on Dec. 3, 2018. (Jabin Botsford - Pool/Getty Images)

WASHINGTON—A closely divided Supreme Court dismissed a claim June 17 that a New York City public-access television network could be sued for allegedly violating the free-speech protections of the First Amendment.

The 5-to-4 opinion on Manhattan Community Access Corp. v. Halleck, written by Justice Brett Kavanaugh, held that Manhattan Neighborhood Network (MNN) was not bound by the First Amendment because it was not a “state actor.” Joining the opinion were Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch.

At issue was whether the TV channel operator licensed by a government should be considered a state actor, meaning a person or entity acting on behalf of a governmental authority. State actors are subject to regulation under the First Amendment, in some cases even if they have only an indirect relationship with a government.

The 2nd Circuit Court of Appeals previously found that even though MNN was a private entity, it functioned as a “public forum” and ruled in favor of content-makers banned from the network, finding that the channel on which they appeared was “the electronic version of the public square.”

But Kavanaugh rejected that line of reasoning, writing, “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. ... Grocery stores put up community bulletin boards. Comedy clubs host open mic nights.”

Merely “hosting speech by others is not a traditional, exclusive public function and does not alone transform private entities into state actors subject to First Amendment constraints,” Kavanaugh wrote. “If the rule were otherwise ... private property owners and private lessees would face the unappetizing choice of allowing all comers or closing the platform altogether.”

The case had been of keen interest to many observers because they believed that if the court ruled in favor of the content providers, it might spur copycat lawsuits aimed at declaring social-media platforms as public forums, subject to the speech protections of the First Amendment. This would limit social-media companies’ ability to decide what content to allow.

The case came as oligopolistic social-media providers and popular websites such as Twitter, Facebook, Instagram, YouTube, and Google have come under increasing attack for viewpoint-based discrimination against users—particularly, conservatives.

President Donald Trump has spoken out on the growing problem of social-media censorship.

“Google & others are suppressing voices of Conservatives and hiding information and news that is good,” Trump wrote in an Aug. 28, 2018, tweet. “They are controlling what we can & cannot see. This is a very serious situation-will be addressed!”

A dissenting opinion was written by Justice Sonia Sotomayor. Justices Ruth Bader Ginsburg, Stephen Breyer, and Elena Kagan joined in the opinion.

“This is a case about an organization appointed by the government to administer a constitutional public forum,“ Sotomayor wrote. ”It is not, as the Court suggests, about a private property owner that simply opened up its property to others.”