Cert Granted in Manhattan Community Access Corp v Halleck
The Supreme Court has been slow to add new cases to its docket, likely waiting for newly-confirmed Justice Brett Kavanaugh to come up to speed. On October 12, 2018, the justices did grant one new petition. The case, Manhattan Community Access Corp v
Facts of Manhattan Community Access Corp v Halleck
The primary issue
in the case is whether the First Amendment applies to employees of a non‐profit
corporation, designated by the Manhattan Borough President to oversee public
access TV channels, who are alleged to have suspended individuals involved in
public access TV programming from using the corporation’s facilities. The issue
has divided the federal courts of appeal.
Cable operators must obtain franchises from
local governments to lay the
cable or optical fibers needed to reach subscribers. Cable franchise agreements
in New York City require private cable operators to set aside public access
channels, which are then operated by private nonprofit entities. The City
awarded cable franchises in Manhattan to Time Warner Entertainment Company,
L.P. (Time Warner). Section 8.1.1 of the franchise agreements provides that
Time Warner must set aside certain cable channels for public access and that
these channels must be operated by an “independent, not- for-profit membership
corporation” designated by the Manhattan Borough President. Almost 30 years ago, the Manhattan
Borough President designated Manhattan
Neighborhood Network (MNN) to
operate the public access channels set aside in Manhattan.
Deedee Halleck and Jesus Papoleto Melendez alleged that MNN, and three of its employees, violated their First Amendment rights by suspending them from using MNN’s public access channels because of disapproval of the content of a TV program that Halleck had submitted to MNN’s programming department for airing on MNN’s public access channel. The district court dismissed the First Amendment claims against MNN, finding that the plaintiffs had failed to establish that MNN was a state actor subject to constitutional liability under 42 U.S.C. § 1983. In reaching its decision, the district court acknowledged that the circuit courts that had previously considered the issue (
A divided Second Circuit reversed. It held:
[W]here,as here, federal law authorizes setting aside channels for public access to be‘the electronic marketplace of ideas,’ state regulation requires cableoperators to provide at least one public access channel, a municipal contract requiresa cable operator to provide four such channels, and a municipal official hasdesignated a private corporation to run those channels, those channels arepublic forums.
After determining that public
access channels are public fora, the majority then noted that, “whether the
First Amendment applies to the individuals who have taken the challenged
actions in a public forum depends on whether they have a sufficient connection
to governmental authority to be deemed state actors.” It went on to conclude that the necessary connection between MNN
and the City “is established in this case by the fact that the Manhattan
Borough President designated MNN to run the public access channels.”
Issues Before the Court inManhattan Community Access Corp v Halleck
The Supreme Court
has agreed to consider the following questions:
1. Whether the
Second Circuit erred in rejecting this Court’s state actor tests and instead
creating a per se rule that private operators of public access channels are
state actors subject to constitutional liability.
2. Whether the
Second Circuit erred in holding — contrary to the Sixth and D.C. Circuits —
that private entities operating public access television stations are state
actors for constitutional purposes where the state has no control over the
private entity’s board or operations.
Oral arguments have
not yet been scheduled. However, a decision is expected by June 2019.
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- Establishment ClauseFree Exercise Clause
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Preamble to the Bill of Rights
Congress of the United States begun and held at the City of New-York, on Wednesday the fourth of March, one thousand seven hundred and eighty nine.
THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.