A lawyer for two content providers banned by a New York City public-access television network for alleged threatening behavior received a cool reception from Supreme Court justices Feb. 25, when he contended the network was legally required to broadcast content his clients generate because the city government licensed the channel.
At issue is whether a public TV channel operator designated by a government is a “state actor,” meaning a person acting on behalf of a governmental authority. State actors are subject to regulation under the First Amendment, in some cases even if they have an indirect relationship with a government.
An appeals court previously ruled in favor of the content-makers, finding the channel on which they appeared was “the electronic version of the public square.”
The case is Manhattan Community Access Corp. v. Halleck. The nonprofit corporation runs the Manhattan Neighborhood Network (MNN), which says its “vision is to empower local voices and diverse views.”
It runs “two state-of-the-art media production and education facilities in Manhattan,” as well as public-access TV channels, which reach about 600,000 cable subscribers.
Although the case doesn’t arise from the world of social media, it’s of keen interest to many observers because they believe if the court rules in favor of the content providers, it might spur copycat lawsuits aimed to declare social-media platforms public forums, subject to the speech protections of the First Amendment. This would limit social-media companies’ ability to decide which content to allow.
The case comes as oligopolistic social-media providers such as Twitter, Facebook, and Google come under increasing attack for viewpoint-based discrimination against users and, in particular, conservatives.
Critics say the long-running, aggressive crackdown on political expression intensified dramatically after Democrat Hillary Clinton, whom the social-media giants strongly favored, was unexpectedly defeated by Republican Donald Trump in the 2016 presidential election.
Facebook and Twitter have leveraged claims of Russian meddling in U.S. elections to justify clamping down on free expression, and have purged and undermined the pages and accounts of those who support the president.
Trump himself has spoken out on the growing problem of social-media censorship.
During oral arguments, Paul W. Hughes, the lawyer for the content creators, radical academic DeeDee Halleck and poet Jesus Melendez, told justices that MNN “is a public forum because New York has generally opened property that it controls for speech. New York has a general access policy. That’s … its first-come, first-served policy. And I think the critical feature here, which petitioners cannot dispute, is that MNN lacks discretion not to—that they cannot decline to run content that is protected by the First Amendment.”
Chief Justice John Roberts challenged this assertion, pointing out the two parties don’t agree on all the facts of the case. Importantly, they don’t agree on the key issue of whether the company has the right to curate content, he said.
Hughes said the city government reserved for itself a property interest in the public access channels, when it gave the cable operator access to public rights-of-way that are “critical to them constructing their system.”
“In exchange, the city obtained the rights to have control over a select number of 18 channels,” he said.
Responding to Justice Elena Kagan, Hughes said it was the franchise agreement specifically that gave the government a property right.
“In many cities in New York, like Buffalo and Scarsdale and others, the cities have retained that property interest and operate, administer that property interest themselves.”
Justice Brett Kavanaugh asked, “If a utility gets rights-of-way from the local government, does that ... make the utility a state actor?”
Hughes said it would not because a utility doesn’t take on “delegated sovereign authority in exercise of something that is carefully tied to a constitutional obligation.”
Justice Samuel Alito said Hughes’s theory of the case seemed farfetched.
“It seems strange to me to say that if the policy is first-come, first-served, no editorial discretion, therefore, no viewpoint discrimination, the First Amendment applies. But if there’s discretion and the administrator has the authority to engage in viewpoint discrimination, the First Amendment doesn’t apply. It seems exactly backwards.”
Halleck and Melendez said MNN suspended them for criticizing the network, but MNN said the duo appeared in a video that contained “harassing and threatening language directed toward MNN staff during a long diatribe.”
Halleck is a retired academic and activist.
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