In a 5-4 opinion issued on June 17, the U.S. Supreme Court ruled that MNN, a private nonprofit designated by New York City to operate its public access channels in Manhattan was not a “state actor” subject to the First Amendment to the U.S. Constitution.

The First Amendment prohibits the government from restricting speech, but it does not generally apply to private actors. Under the “state action” doctrine, however, private actors can be held liable for violating the First Amendment when they are acting on behalf of the government or doing something that the government would normally do.

The case arose after MNN refused to re-air a video after its initial broadcast. The video producers sued, alleging that MNN’s actions violated the First Amendment. The U.S. Court of Appeals for the 2nd Circuit ruled that MNN is a state actor because the local government chose MNN to operate public-access channels.

In an opinion written by Justice Brett Kavanaugh, the Supreme Court reversed the lower court ruling, emphasizing that the case turns on whether MNN is a state actor when it operates public access channels. The court stressed that a private entity can be a state actor only when it is performing a “traditional, exclusive public function.” Few functions fall in this category, the court said, and the operation of public-access cable channels is not one of them, because both public and private entities have historically operated such channels.

In New York, like Massachusetts, most public access channels are run by private entities designated by the local government.

The Supreme Court also stated that providing a forum for speech is not an activity that only governmental entities have traditionally performed, so a private entity that provides a forum for speech is not, based on that test, a state actor.

The opinion did not address the degree to which the First Amendment protects private entities such as MNN from government action requiring the entities to open their property for speech by others. Thus, New York could still limit MNN’s editorial discretion, as long as it does not violate federal laws or the Constitution.

In Massachusetts, the operation of public access channels is laid out in local bylaws, which can similarly address editorial discretion as long as they do not violate federal laws or the Constitution.

When a local government itself operates public access channels on a local cable system or takes appropriate steps to obtain a property interest in the public access channels, then, depending on the circumstances, the First Amendment might constrain the local government’s operation of the channels, the Supreme Court cautioned.

A dissenting opinion, written by Justice Sonia Sotomayor, argued that New York secured a property interest in the public access channels when it granted a cable franchise to a cable company, thereby creating the public access channels. When MNN stepped into the city’s shoes to run the public forum, it thus qualified as a state actor and should be subject to the First Amendment.

Justice Kavanaugh, on behalf of the majority, argued that the franchise agreements simply placed the public access channels under the jurisdiction of MNN, but conveyed no property interest.

While the opinion is limited in nature, it highlights the importance of local government and municipal counsel review of bylaws for the operation of public access channels to ensure compliance with federal law and the Constitution.

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