Since the 1970s, public access channels have been a regular feature on cable television systems throughout the United States. The Cable Communications Policy Act of 1984, 98 Stat. 2779, authorized state and local governments to require cable operators to set aside channels on their cable systems for public access. The New York State Public Service Commission regulates cable franchising in New York State and requires cable operators in the State to set aside channels on their cable systems for public access. State law requires that use of the public access channels be free of charge and first-come, first-served. Under state law, the cable operator operates the public access channels unless the local government in the area chooses to itself operate the channels or designates a private entity to operate the channels. Time Warner (now known as Charter) operates a cable system in Manhattan. Under state law, Time Warner must set aside some channels on its cable system for public access. Pursuant to a cable-franchise agreement, New York City (the City) has designated a private nonprofit corporation named Manhattan Neighborhood Network, commonly referred to as MNN [also known as Manhattan Community Access Corp.], to operate Time Warner’s public access channels in Manhattan.
DeeDee Halleck and Jesus Papoleto Melendez produced public access programming in Manhattan. After MNN aired their film about MNN’s alleged neglect of the East Harlem community, MNN fielded multiple complaints about the film’s content. In response, MNN ultimately suspended Halleck and Melendez from all MNN services and facilities. Halleck and Melendez filed suit, claiming that MNN violated their First Amendment free-speech rights when MNN restricted their access to the public access channels because of the content of their film.
The threshold problem with that First Amendment claim is a fundamental one: MNN is a private entity. Under this Court’s cases, a private entity can qualify as a state actor in a few limited circumstances—including, for example, (i) when the private entity performs a traditional, exclusive public function; (ii) when the government compels the private entity to take a particular action; or (iii) when the government acts jointly with the private entity.
The producers contend that MNN exercises a traditional, exclusive public function when it operates the public access channels on Time Warner’s cable system in Manhattan. The relevant function in this case is operation of public access channels on a cable system. Since the 1970s, when public access channels became a regular feature on cable systems, a variety of private and public actors have operated public access channels, including: private cable operators; private nonprofit organizations; municipalities; and other public and private community organizations such as churches, schools, and libraries. Operating public access channels on a cable system is not a traditional, exclusive public function.
The producers further contend that the relevant function here is not simply the operation of public access channels on a cable system, but rather is more generally the operation of a public forum for speech. But when a private entity provides a forum for speech, the private entity is not ordinarily constrained by the First Amendment because the private entity is not a state actor. The private entity may thus exercise editorial discretion over the speech and speakers in the forum. Providing some kind of forum for speech is not an activity that only governmental entities have traditionally performed. Therefore, a private entity who provides a forum for speech is not transformed by that fact alone into a state actor.
If the rule were otherwise, all private property owners and private lessees who open their property for speech would be subject to First Amendment constraints and would lose the ability to exercise what they deem to be appropriate editorial discretion within that open forum. Private property owners and private lessees would face the unappetizing choice of allowing all comers or closing the platform altogether.
The producers argue that MNN is a state actor because New York City has designated MNN to operate the public access channels on Time Warner’s cable system, and because New York State heavily regulates MNN with respect to the public access channels. 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.
Put simply, being regulated by the State does not make one a state actor. The “being heavily regulated makes you a state actor” theory of state action is entirely circular and would significantly endanger individual liberty and private enterprise. The theory would be especially problematic in the speech context, because it could eviscerate certain private entities’ rights to exercise editorial control over speech and speakers on their properties or platforms.
To be sure, MNN is subject to state-law constraints on its editorial discretion (assuming those state laws do not violate a federal statute or the Constitution). But MNN, as a private actor, is not subject to First Amendment constraints on how it exercises editorial discretion over the speech and speakers on its public access channels.
Sotomayor, J., with whom Justice Ginsburg, Justice Breyer, and Justice Kagan join, dissenting.
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 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.
The cable-franchise agreement provided that the public-access channels would be operated by an independent, nonprofit corporation chosen by the Manhattan borough president. But the City could have instead chosen to run the channels itself.
MNN is the independent nonprofit that the borough president appointed to run the channels; indeed, MNN appears to have been incorporated in 1991 for that precise purpose.
The channels are clearly a public forum: The City has a property interest in them, and New York regulations require that access to those channels be kept open to all. And because the City (1) had a duty to provide that public forum once it granted a cable franchise and (2) had a duty to abide by the First Amendment once it provided that forum, those obligations did not evaporate when the City delegated the administration of that forum to a private entity. Just as the City would have been subject to the First Amendment had it chosen to run the forum itself, MNN assumed the same responsibility when it accepted the delegation.