Does the First Amendment Apply to Public-Access Channels?

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Facebook, YouTube, and the Internet Association are tuning into Supreme Court proceedings, to see whether a freedom of expression case will have ripple effects onto their own content. These social media corporations posit that regardless of the internet’s service as a “modern public square,” it is not a public forum. The US Supreme Court (on February 25, 2019) heard oral arguments for Manhattan Community Access v Halleck, which focuses on freedom of speech in public-access television.

In the present case, a breach of the First Amendment was argued by DeeDee Halleck (Academy Award nominated producer) and Jesus Melendez (poet and playwright) who both contributed to programming for the Manhattan Community Access Corporation (MNN). Halleck and Melendez aired a 25-minute video, which was critical of MNN, for which the pair were banned from MNN. Halleck and Melendez sued MNN for violation of their First Amendment rights, and the US Court of Appeal for the 2nd Circuit conceded that MNN is a state actor and its channels are public forums (as such, the First Amendment is applicable).

In its factum, MNN upheld that it is a private actor, since (1) it does not carry out a traditional government function, (2) the state has no control over its channels, and (3)  it does not coordinate with or receive funding from the state. Halleck and Melendez stated that only the government can create a public forum. Furthermore, the city selected MNN to run public-access channelsand could replace itwhich suggests that MNN is a state actor.

At the Supreme Court level, the Justices were divided on whether MNN constitutes a state actor. Justice Ruth Bader Ginsburg acknowledged that MNN does not have independent decision-making authority, and thus seems to act as a state agent. Justice Kavanaugh asserted that MNN is a private actor, and moreover runs a privately-owned cable company. Mr. Hughes (on behalf of Halleck) noted that the present case is outside the purview of the Internet Association’s concern of being subject to the First Amendment; the case is limited to whether “the administration of public forums constitutes state action.”

This post was written by a CCLA-PBSC Rights Watch student. Views expressed do not necessarily reflect the views of the CCLA or PBSC.

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