Public Access Channels Not Seen Hurt by Supreme Court Decision

The Supreme Court's 5-4 decision on First Amendment responsibilities of private operators of public access cable channels Monday isn't expected to have broader effects on public access channel operations generally or on the question of how far the public fora doctrine extends into cyberspace. Alliance for Community Media President Mike Wassenaar told us it has been urging public access channel members to have clear editorial policies and to work closely with producers to avoid litigation.

A private entity is only a state actor when it exercises powers that traditionally exclusively were those of the state, and operating public access channels on a cable system doesn't fit that bill, the court said. Penning the decision -- which reversed part of a 2nd U.S. Circuit Court of Appeals ruling and remanded the remainder of the case -- was Justice John Kavanaugh, joined by Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito and Neil Gorsuch. Providing a forum for speech isn't an activity that only government entities have performed, the majority said, citing grocery store community bulletin boards and comedy club open mic nights. They said the city doesn't own or lease the public access channels, and nothing in the cable franchise agreement with Time Warner Cable suggests the city has a property interest in the cable system or the public access channels on it, they said. Charter Communications owns TWC.

Two producers sued Manhattan Community Access, aka Manhattan Neighborhood Network, claiming the operator chartered by New York City violated their First Amendment rights with a ban from MNN facilities (see 1810170027). Oral argument was in February (see 1902250015).

There were questions about what the court might say about public forum doctrine, said Public Knowledge Senior Vice President Harold Feld. Electronic Frontier Foundation in an amicus brief urged the court to be sure its ruling was clear that a private entity's communications platform doesn't transform into a state actor without significant action from the government itself. The court's opinion is very limited and narrow in scope, and that it so heavily emphasized state actor issues shows the court isn't interested in extending the public forum doctrine into cyberspace, Feld said.

The majority decision makes clear the First Amendment only applies to government and "not private companies to whom state law requires cable cos to lease public access channels," TechFreedom Berin Szoka tweeted. "Tell me again how it's 'unconstitutional' for social networks to 'censor conservatives' because they're public fora?"

Justice Sonia Sotomayor in dissent joined by Ruth Bader Ginsburg, Stephen Breyer and Elena Kagan said MNN "stepped into the City's shoes" and thus is a state actor, akin to the court's 1988 West vs. Atkins that said a doctor hired to provide medical care for state prisoners is a state actor. The dissenters said New York had a duty to provide a public forum once it granted a cable franchise, and the city's First Amendment obligations don't disappear when the city delegates administration of that forum to a private third party. They said the majority "swings hard at the wrong pitch" with a decision that instead frames MNN as a private entity setting up shop in a regulated environment.

The 5-4 split was surprising since a noncontroversial question often gets more alignment, said Trevor Burrus of the Cato Institute's Levy Center for Constitutional Studies. He said dissenters were particularly concerned with states avoiding First Amendment accountability through delegation, while the conservative majority's primary concern was protection of private actions.

Wassenaar said it's unclear whether the majority decision will incentivize local governments to change how they operate public access and increasingly farm out operations to third parties. But Feld said public, educational and government channel management is "well entrenched" and states aren't considering changes to how they run those operations based on the decision.

Counsel for petitioners MNN emailed that the decision "will allow [it] to continue to produce and air the broadest array of viewpoints in the country and continue to teach media skills to high school students and other residents of New York City." MNN said it's pleased the court "reaffirmed our independence so that we can continue to provide a critically important platform without government interference.” Counsel for the respondents didn't comment.