By Roman Friedrich

The low frequency of blog posts may be a sign that the Supreme Court’s 2018 term is not necessarily the most spectacular one we have seen in a longtime. Still, this case is promising from the perspective of constitutional law: Manhattan Community Access Corp. v. Halleck, docket no. 17-1702, a case arising from the New York City-based Second Circuit.

In New York, under certain circumstances TV-cable networks are required to provide one channel under public-access use, based on the principles of first-came, first-served as well as non-discrimination, N.Y. Comp. Codes R. & Regs. tit. 16, § 895.4(c)(4).

The two respondents, Halleck and Melendez, produced video content that they regularly aired on the public-access stations of Manhattan Neighborhood Network (MNN), a not‐for‐profit, nonmembership corporation overseeing public access channels, Respondents‘ Brief at 9; CA2 at 5. At some point in 2011 the parties entered a quarrelsome period in their relationship, which culminated in a very critical video in which the respondents, inter alia, blamed the petitioner MNN as an „organization more interested in pleasing ‘the 1%’ than the East Harlem community“, Respondents‘ Brief at 10. MNN first broadcast but then banned the video and suspended the respondents from submitting any content in the future, for diverging periods of time, ibid.

The respondents sued Manhattan Community Access Corp.  dba MNN, claiming, unsurprisingly, a violation of their freedom of speech, CA2 at 6, and producing a not-very-exciting First Amendment case.

However, under the State Action Doctrine and in contrast to recent developments in the European approach, protection against constitutional rights exists only against „state actors“, not private actors. The question always is whether „the alleged infringement of federal rights [is] ‚fairly attributable to the State?‘“, Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922 (1982) at 937. If the answer is no, a court’s inquiry ends, see Rendell-Baker v. Kohn, 457 U.S. 830 (1982) at 839.

The huge question looming over the case at hand is, of course, whether the actions of MNN constitute „state action“, rendering them subject to the respondents‘ First Amendment rights, see CA2 at 11. The Second Circuit, relying on the Supreme Court’s prior decision in Denver Area Ed. Telecommunications Consortium, Inc. v. FCC, 518 U.S. 727 (1996), held that MNN was a „state actor“ for First Amendment purposes since the State delegated to MNN the traditionally public function of administering and regulating speech in the public forum” of public-access cable television.

It must be noted that there are several routes (maybe seven, maybe more, see Brentwood Academy v. Tennessee Secondary School Athletic Assn., 531 U.S. 288 [2001] at 296) that can be taken in order to consider action technically taken by a private actor to be „state action“ in a particular context. One of those routes is the „public function“ test: “Under the public function test, state action may be found in situations where an activity that traditionally has been the exclusive, or near exclusive, function of the State has been contracted out to a private entity.”  Grogan v. Blooming Grove Volunteer Ambulance Corps, 768 F.3d 259, 264–65 (2d Cir. 2014).

The gist of the Second Circuit’s argument that MNN’s action is state action is that under Justice Kennedy’s opinion in Denver, „[a] public access channel is a public forum“, supra at 783. The Court of Appeals averred that „because facilities or locations deemed to be public forums are usually operated by governments, determining that a particular facility or location is a public forum usually suffices to render the challenged action taken there to be state action subject to First Amendment limitations“, CA2 at 16. Additionally, the Court of Appeals found „sufficient connection to governmental authority“ since a municipal officer, „the Manhattan Borough President[,] designated MNN to run the public access channels“, CA2 at 17.

While this may be a reasonable interpretation of Justice Kennedy’s opinion in Denver, the problem is that this opinion was not the majority opinion; deplorably, Denver was a messy case, producing six opinions.

Halleck will face a vastly different Court than Denver in 1996 when only three of today’s Court’s members were casting their votes. Importantly, Justice Kennedy, on whose opinion the Second Circuit relied, retired last summer. However, the one Justice who joined Kennedy’s Denver opinion is still on the bench and may therefore have an impact on the direction the path the Court will enter: Justice Ginsburg.

The case will be argued on Monday, February 25.