Manhattan Community Access Corp. v. Halleck

DETERMINING WHETHER A PUBLIC FORUM EXISTS

MNN argues that the Second Circuit contradicted Supreme Court precedent by first determining that MNN’s public access channels were constitutional public forums and then finding that MNN was a state actor. MNN asserts that the Second Circuit erroneously skipped the state action inquiry, conflicting with Supreme Court precedent indicating that it should be applied first. Further, MNN notes that the Sixth and D.C. Circuits considered the same issue, and both applied the state action analysis first, concluding that private parties that operate public access channels do not constitute state actors.

Additionally, MNN maintains that district courts across the country also follow the same structure of analysis, ordinarily conducting the state action inquiry first. Even when courts deemed public access channels constitutional public forums, MNN contends that courts only determined this after having conducted a state action test and on evidence that the government had direct control of the public access channel. MNN argues that public access channels cannot be considered constitutional public forums because it is neither government‑owned or government‑controlled property, and therefore, not subject to constitutional restrictions. According to MNN, the Supreme Court precedent that Halleck and Melendez cite is inapposite because it dealt with government-owned property, and the particular dicta in Cornelius v. NAACP Legal Defense & Educ. Fund only mentioned the issue of private property dedicated to public use in passing and without engaging in a more substantive analysis.

Further, MNN asserts that the only Supreme Court case to hold that First Amendment protections applied to privately-owned and controlled property, Marsh v. Alabama, is limited to its unique facts in which a private corporation had taken on the role of building and running a town, which was an exclusively government function. MNN also maintains that the Second Circuit’s opinion creates a per se rule that would make almost all public access channels constitutional public forums and that such a rule would violate all state actor test precedent requiring a precedent state action.

Halleck and Melendez counter that New York’s free, first-come, first-served system for its public access channels was a conscious choice to create a public forum that should be respected by the courts. Thus, Halleck and Melendez argue that the structure of New York’s laws was designed to open the state’s public access channels to members of the public without allowing MNN to filter the content that aired on the public access channels. Halleck and Melendez point out that MNN previously admitted that the New York statute precluded them from engaging in viewpoint‑based discrimination or preventing content that was critical of them from airing. Halleck and Melendez assert that these qualities indicated that public access channels are a public forum.

Additionally, Halleck and Melendez maintain that there is no support for the proposition that public access channels are privately-owned and controlled forums. Rather, Halleck and Melendez contend that the City retains total discretion to remove and replace MNN as administrator, and thus, own the rights involved here. Halleck and Melendez note that the City had the option to run the public access channels itself or to assign the task to a third party—if it had decided to run the channels itself, they would clearly be public forums. Halleck and Melendez argue that the City’s choice to delegate its administrative function to MNN does not affect the court’s analysis because the City did not transfer ownership rights of the public access channels to MNN. Moreover, Halleck and Melendez assert that the City’s retention of its ownership rights distinguishes this case from Denver Area v. FCC, where the Court’s decision rested in part on the conflict between the cable operators’ right to control its content and the programmers’ right to use the cable system to broadcast its content. Even if the Court finds that MNN owns some rights related to the public access channels, or alternatively, if the cable operators do, Halleck and Melendez maintain that MNN’s arguments should still fail because MNN’s rights—and the cable operators’—should be subjected to an easement favoring the public, which would prevent them from exercising editorial control.

THE PUBLIC FUNCTION TEST AND STATE ACTION ANALYSIS

MNN argues that none of the state actor tests that the Supreme Court utilizes would lead to the conclusion that MNN was a state actor subject to constitutional claims. First, MNN asserts that it would not be a state actor under the Lebron test because the government did not have the requisite control over the corporation’s board of directors—MNN did not have the power to nominate a majority of the board of directors. MNN also maintains that it is not a state actor under the public function test—which the Second Circuit’s concurrence misapplied—because providing public access channels is not a function that the government traditionally and exclusively performs, which is a very narrow and strict inquiry.

Further, MNN contends that the City has never controlled Manhattan’s public access channels and that even if the City failed to designate a private non-profit entity to operate the channel, the responsibility would still fall to the cable franchisee. MNN argues that this demonstrates a great deal of separation, supporting their contention that running public access channels are not a traditional or exclusive government function. Additionally, MNN asserts that it is not a state actor under the compulsion and coercive test because there is no evidence that the City was involved in the decision to reprimand Halleck and Melendez, and this cannot be inferred from the existence of New York’s general regulatory scheme. Similarly, MNN maintains that it would not be a state actor under the “symbiotic relationship” test because MNN does not have the requisite funding and regulatory dependence on the government that has previously been required to establish such a relationship.

Halleck and Melendez counter that administering a public forum constitutes a public function, meaning that constitutional protections apply. Further, Halleck and Melendez argue that the government cannot circumvent the First Amendment’s requirements simply by delegating a public function to a private organization, as the City has here. Halleck and Melendez assert that Supreme Court precedent supports the proposition that the administration of a public forum is a traditional and exclusive state function. More specifically, Halleck and Melendez maintain that only a state has the power to create a public forum and administer a public, as this power is tied to the state’s sovereign authority, absent the state delegating such authority to a private party. Halleck and Melendez note that lower courts also agree with the proposition that the administration of a public forum constitutes a public function.

Additionally, Halleck and Melendez contend that the “direct and indispensable participation” test demonstrates that state action is present in this case because NYC created MNN, appointed its initial board, and designated MNN as administrator of the public access channels. Finally, Halleck and Melendez also argue that New York law eliminates all of MNN’s editorial discretion and decision-making powers.