It’s not every day a Woodstocker gets to attend the oral arguments for a case bearing her name at the Supreme Court of the United States. But so it goes for Dee Dee Halleck, the video and public access television pioneer who has taken a case up through the nation’s legal system that not only questions the extent of public forums as a bastion of our first amendment, but the very ways in which privatization of public interests and management is affecting our democracy.
Manhattan Community Access Corp. v. Halleck, which presents oral arguments before the U.S. Supreme Court on February 25, appears to be a limited case at first glance. The court will be deciding, according to its own docket, “Whether the U.S. Court of Appeals in the 2nd Circuit erred in rejecting the Supreme 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; and (2) whether the U.S. Court of Appeals for the 2nd Circuit erred in holding — contrary to the U.S. Courts of Appeals for the 6th and District of Columbia 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.”
The ACLU summarized the case in layman’s terms by noting that private institutions are barred from censoring speech when they take on a governmental role, and the underlying question is when a private institution should be considered a governmental stand-in.
“For decades, various state and local governments have required cable companies to set aside channels for public use,” the ACLU has written in a statement to the court. “These channels have become tools for creative exploration and provide artists, educators, and activists a platform to speak directly to their communities. They’re a home for everything from talk shows to music videos to stream-of-consciousness rants on any subject you can think of.”
They go on to point out that the nonprofit Manhattan Neighborhood Network, which barred a piece produced by Halleck and fellow artist/activist Jesus Papoleto Melendez several years back, “operates the public access channels for the borough. By law, it must broadcast all legal content that it gets in the order received.”
Halleck and Melendez sued MNN after they were suspended by the station, which they said was an infringement on their first amendment.
“It is well established that the government cannot censor protected speech, a principle especially important when that speech criticizes the government. But, in general, a private TV network can run or not run whatever content it likes,” the ACLU brief continues. “So which rule does MNN fall under? New York City has implemented its very specific vision for public access channels through MNN. Because the city’s first-come, first-served policy leaves MNN no room to decide what to broadcast, or even in what order to broadcast videos, it has made the network a virtual arm of the government. That means that the First Amendment applies to MNN, and it cannot pick and choose videos based on what’s in them.”
Other amicus briefs have been piling in on Halleck’s side…from broadcast associations, the U.S. Chamber of Commerce, and the libertarian-leaning Cato Institute among others.
“The Court should decline the invitation to adopt a rigid rule that the public forum doctrine is inapplicable unless the government holds a formal property interest in the space at issue. Adopting that rule would require the Court to overrule or significantly narrow longstanding precedent, would allow government actors to easily evade the First Amendment’s restrictions in spaces that are central to public discourse, and would be difficult or impossible for courts to apply online, where property rights are often ill-defined,” wrote the Knight First Amendment Institute at Columbia University of Halleck’s case. “The public forum doctrine has long served to safeguard government-established expressive spaces against government censorship and distortion. The Court has recognized that the principles underlying the doctrine apply not only to parks and sidewalks but also to other spaces that the government intentionally opens up to the public for expressive activity. Thus, the Court has protected speech against government censorship in designated public forums as well as in traditional ones…These government-controlled digital forums are critical to public discourse, but they reside or rely on communications networks that are, as a general matter, privately owned.”
The ACLU took that same argument on Halleck and Melendez’s behalf one step further, into an area that worries many these days of anti-tax fervor.
“The government can’t shirk its constitutional responsibilities by delegating power to private entities. Nor can it avoid its constitutional obligations by creating rules or entering contracts that leave a private entity with essentially no decisions to make at all,” it wrote. “The First Amendment would mean little if the government could simply avoid it by outsourcing its power to private entities to decide what is worthy of public discourse and what must be silenced.”
More next week after those oral arguments down in Washington.