The US Supreme Court heard oral arguments in Manhattan Community Access Corp. v. Halleck on Monday to decide whether a private nonprofit public-access television channel can be sued for violations of the First Amendment.
The case originates from a 2016 lawsuit brought by two public-access television producers against MNN, the operator of the public-access TV channels in Manhattan at the time. In 2012 the two producers, DeeDee Halleck and Jesus Melendez, created a video that was highly critical of MNN. The video aired once but was banned immediately after airing.
Halleck and Melendez sued MNN and its employees, alleging a violation of their First Amendment rights. The district court case was initially dismissed for failure to state a valid claim under § 1983, on the grounds that MNN was “not operating a public forum.” However, on appeal the US Court of Appeals for the Circuit permitted it to go forward, holding that although the complaint failed to allege an action by the city consistent with § 1983, “[a] public access channel is the electronic version of the public square,” and therefore could fall under First Amendment protections. In other words, by virtue of MNN’s connection with local Manhattan government through a contract to operate public-access channels MNN could be deemed a “state actor.”
Arguing for MNN on Monday, attorney Michael De Leeuw urged the justices to “preserve the lines between government action and private conduct” stressing that “MNN is a private, nonprofit company.” Citing multiple tests for state action, De Leeuw argued that MNN’s action was “not fairly attributable to the state.” Justice Elena Kagan likened MNN’s management of the television channels to a property right, granted to MNN by the local government, in which the local government reserved the right “to decide what programming should be” aired. In response De Leeuw argued that no sort of easement or contract exists for this type of property, stating, “what the contracts don’t do is that they don’t give the city the right to choose what content is going to be on the public access channels.”
On behalf of Halleck and Melendez, attorney Paul Hughes argued that “MNN is performing the state function of administering a public forum.” Notably, Justice Brett Kavanaugh questioned Hughes in regard to Supreme Court precedent which holds that for an act to be considered a public function it must “traditionally exclusively been a public function.” Hughes offered a two-part test: (1) it should be determined whether the function is the kind that “requires a delegation of state sovereign authority;” and if so, whether it’s the kind of thing that states exclusively can do;” and (2) whether the act in question “is this the kind of function that has express constitutional obligations attached to it.”
The justices had not indicated which way they will come down on this issue. A decision is expected by the end of June.
