So Brett Kavanaugh was installed onto the high court October 6, 2018 and on October 12, 2018, SCOTUS announced that they would hear Manhattan Community Access Corporation v. DeeDee Halleck.
Background
First Amendment issues surfaced when Manhattan Neighborhood Network barred Dee Dee and Jesus Papaleto Melendez from the premises and channel of their local public access TV station. Tensions started when MNN pulled community outreach grants. So Halleck and Melendez went to a MNN board meeting to dispute the decision but were told it was not open to the public. As activists and media producers, they covered the opening of a second MNN studio and the resulting video, The 1% Visits El Barrio, was initially showed on the channel, but was subsequently pulled as MNN claimed that the video contained threatening language to MNN employees. Both producers were denied continued access to their local public access channel, Halleck for a year and Melendez for life.
Second Circuit Ruling
Halleck and Melendez sued on First Amendment grounds and won in the Second Circuit Court of Appeals in February 2018. MNN argued that they are private entity that has a right to curate its content, and not a public forum that must remain open to all. The First Amendment limits the government’s ability to censor, so MNN would have to be “an agent of the state” in order to be liable. The Second Circuit found that MNN was in fact a state actor— It had government appointees on its Board, government mandated funding, and a “first come first serve” rule for content (i.e. no content curation policy).
The Supreme Court
When appealing to the US Supreme Court, MNN argued that the Second Circuit ignored the US Supreme Court’s “state action doctrine” and came to its conclusions in a way that could have grave implications for other private actors that host speech. This angle is getting the most coverage, as social media is a hot topic and corporate news media does not generally hold ownership interest in newer social media platforms like Facebook and Twitter.
Indeed the Halleck case was cited in Knight Institute v. Trump, which determined that the President blocking critics from the @realDonaldTrump Twitter account violated their First Amendment rights. This case is on appeal to the very same Second Circuit.
Both the Cato Institute and the US Chamber of Commerce have filed briefs with SCOTUS in the Halleck case arguing that private entities have no First Amendment liability and I am confident that SCOTUS will find their logic compelling. I wouldn’t be surprised if the Supreme Court rules in such a way that makes the Trump appeal moot. A broad ideological ruling that dissolves any public forum claims across platforms would be a real reach and could okay Trumps’ blocking behavior on Twitter.
What will get less play in the corporate news media is the viability of public access television if a “no public forum here” ruling comes down. Cable companies like Time/Warner and Comcast are charged with paying expenses for public access tv as the deal they made to get access to public infrastructure, so they have an interest in the outcome of this case.
So here’s the dreaded worst-case scenario: The Supreme Court rules that public access is a purely private entity which then would beg the question, “Why is the government forcing a private entity (say Comcast) to pay for the speech of another private entity (local access station?.” And that’s how The Supreme Court could exempt Big Cable from any obligation to provide even the slightest sliver of non-commercial public, educational, and governmental TV programming.
Far-fetched? The Roberts Court has employed the concept of “compelled speech” to forward right-wing causes. “Compelled speech” reasoning can argue that the government can’t make a corporation say something it doesn’t want to say, like mandating warning label on a dangerous product. More recently the High Court has used compelled speech arguments to strike down a California law that requires anti-abortion pregnancy centers to notify patients of state-offered services. Further, though Justice Kennedy did not rule on “compelled speech” grounds, the argument that the government forced a Colorado baker to speak in favor of gay marriage by baking a cake found use in the Gorsuch and Thomas concurrences.
So we could be primed for a mirror universe where public access tv violates Big Cable’s free speech rights. “I, Comcast, want to ‘speak’ HGTV and the Food Network, not the East Podunk Development Review Board meeting and the government can’t make me!”
SET FOR ARGUMENT on Monday, February 25, 2019.
The Denver Area Precedent
The Justices will have to weed through the opinions in Denver Area Ed. Telecom v. FCC (1996) to build their case. Striking is Justice Souter’s concurrence which both presaged the potential for social media implications and suggested the cable-only model for public access tv may not be sustainable.
As cable and telephone companies begin their competition for control over the single wire that will carry both their services, we can hardly settle rules for review of regulation on the assumption that cable will remain a separable and useful category of First Amendment scrutiny. And as broadcast, cable, and the cybertechnology of the Internet and the World Wide Web approach the day of using a common receiver, we can hardly assume that standards for judging the regulation of one of them will not have immense, but now unknown and unknowable, effects on the others.
Presently public access tv only gets a small percent of the cable bill and none of the internet bill, a distinction that has resulted in shrinking revenue as consumers cut the cord.
But that’s a curious aside. Justice Breyer wrote the ruling, which involved placing parental controls on indecent material. He explicitly avoided the state actor question:
We therefore think it premature to answer the broad questions that JUSTICES KENNEDY and THOMAS raise in their efforts to find a definitive analogy, deciding, for example, the extent to which private property can be designated a public forum, ...
Justice Kennedy made the strong case that by definition and Congressional intent, public access tv is a public forum:
The plurality opinion, insofar as it upholds § 10(a) of the 1992 Cable Act, is adrift. The opinion treats concepts such as public forum, broadcaster, and common carrier as mere labels rather than as categories with settled legal significance; it applies no standard, and by this omission loses sight of existing First Amendment doctrine.
Public access channels meet the definition of a public forum... Required by the franchise authority as a condition of the franchise and open to all comers, they are a designated public forum of unlimited character. The House Report for the 1984 Act is consistent with this view. It characterized public access channels as "the video equivalent of the speaker's soap box or the electronic parallel to the printed leaflet. They provide groups and individuals who generally have not had access to the electronic media with the opportunity to become sources of information in the electronic marketplace of ideas."
But Kennedy is not around to further make this argument in the Halleck case. Justice Thomas, however, will be able to forward his line of reasoning, which contains worst-case scenario logic:
There is no getting around the fact that leased and public access are a type of forced speech....Petitioners must concede that cable access is not a constitutionally required entitlement and that the right they claim to leased and public access has, by definition, been governmentally created at the expense of cable operators’ editorial discretion. Just because the Court has apparently accepted, for now, the proposition that the Constitution permits some degree of forced speech in the cable context does not mean that the beneficiaries of a Government-imposed forced speech program enjoy additional First Amendment protections beyond those normally afforded to purely private speakers….
Because the access provisions are part of a scheme that restricts the free speech rights of cable operators and expands the speaking opportunities of access programmers, who have no underlying constitutional right to speak through the cable medium, I do not believe that access programmers can challenge the scheme, or a particular part of it, as an abridgment of their "freedom of speech.”
...in many places, the operator is actually obligated to provide production facilities and production assistance to persons seeking to produce access programming. Moreover, unlike a park picketer, an access programmer cannot transmit its own message. Instead, it is the operator who must transmit, or "speak," the access programmer's message.
So I’m going to predict that if Thomas writes the ruling opinion, it’s game over for the present public access television business model.
I got a chance to interview DeeDee Halleck shortly after she learned The Supreme Court accepted MNN’s petition. The discussion of the case begins @7:50.
