The Supreme Court case that’s pitched public access television pioneer DeeDee Halleck, a long time Woodstocker, against the New York City-designated nonprofit that administers its public access channels was decided against her this week in a 5-4 decision, with the Court’s newest member Brett Kavanagh writing the majority opinion.
“New York City’s designation of MNN to operate the public access channels is analogous to a government license, a government contract, or a government-granted monopoly. But as the Court has long held, the fact that the government licenses, contracts with, or grants a monopoly to a private entity does not convert the private entity into a state actor — unless the private entity is performing a traditional, exclusive public function,” Kavanagh wrote in the decision he, Samuel Alito, Neil Gorsuch, John Roberts, and Clarence Thomas voted through. “Operating public access channels on a cable system is not a traditional, exclusive public function. A private entity such as MNN who opens its property for speech by others is not transformed by that fact alone into a state actor. Under the text of the Constitution and our precedents, MNN is not a state actor subject to the First Amendment. We reverse in relevant part the judgment of the Second Circuit, and we remand the case for further proceedings consistent with this opinion. It is so ordered.”
Justice Sonia Sotomayor wrote the dissent, signed on to by Stephen Breyer, Ruth Bader Ginsberg and Elena Kagan.
“The Court tells a very reasonable story about a case that is not before us. I write to address the one that is. This is a case about an organization appointed by the government to administer a constitutional public forum. (It is not, as the Court suggests, about a private property owner that simply opened up its property to others.) New York City (the City) secured a property interest in public-access television channels when it granted a cable franchise to a cable company. State regulations require those public-access channels to be made open to the public on terms that render them a public forum. The City contracted out the administration of that forum to a private organization, petitioner Manhattan Community Access Corporation (MNN). By accepting that agency relationship, MNN stepped into the City’s shoes and thus qualifies as a state actor, subject to the First Amendment like any other, she wrote. “The majority’s opinion erroneously fixates on a type of case that is not before us: one in which a private entity simply enters the marketplace and is then subject to government regulation. The majority swings hard at the wrong pitch.”
Halleck, who lives in Willow, was saddened by the news of SCOTUS’ treatment of her case, which made it through two courts before this denouement.
“Access is no longer defined as a public forum. The decision in our case impacts the raison d’être of public access. For example, access has been one of the main distribution systems of Democracy Now. It was the network of public access stations (via Deep Dish and FSTV) that enabled DN to be available in hundreds of cities and towns. Access is television’s last frontier of alternative information, local news and home-grown creative arts,” she noted Tuesday morning of the decision. “This decision is a victory for corporate speech. It empowers the cable companies (and the non-profit orgs that run access) to censor whenever, whomever and whatever they want. Just look at who wrote MNN’s Amicus Briefs: three Koch Brothers organizations (Cato Institute, Atlantic Legal, Pacific Legal)…Our Amicus Briefs: ACLU, NCLU, Alliance for Community Media, National Campaign Against Censorship, New York County Lawyers Association, Knight First Amendment Institute, National Police Accountability Project (NLG), The Alliance for Communications Democracy, The National Associations of Telecommunications Officers and Advisors.
“This decision is another step towards the complete privatization of public rights of way,” Halleck concluded. “Sick at heart… DeeDee.”
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