Public Access Implications of Supreme Court Case Worry Some PEG Boosters

The case likely was of interest to justices because of the central issue of under what circumstances can a private entity be deemed a state actor, said Michael de Leeuw of Cozen O'Connor, counsel for petitioners Manhattan Community Access, aka Manhattan Neighborhood Network (MNN). He said the issue is timely given litigation against social media platforms for alleged First Amendment violations.

The court last week granted (see here) MNN's docket 17-1702 petition for writ of certiorari. Two public access content producers sued MNN and three staffers in 2015 for First Amendment violations after the programmer banned them from its facilities. MNN claims the ban was for staff harassment, while the producers said it was for a video critical of MNN. The complaint was dismissed at the district court level and then appealed to the 2nd U.S. Circuit Court of Appeals in 2016, with a 2nd Circuit panel early this year concluding PEG channels are public forums, and MNN is a state actor since it was designated by the Manhattan borough president to run the public access channels there.

The programmer's cert petition said the 2nd Circuit majority's conclusion the privately owned and operated public access channels are constitutional public forums and the private owner and operator is a state actor subject to constitutional liability ignored the Supreme Court. De Leeuw said the 2nd Circuit decision amounted to a per se test that would apply to PEG channels nationwide, because the 2nd Circuit is particularly influential and thus its decision creates uncertainty for district courts nationwide.

The Cato Institute's amicus brief said the 2nd Circuit decision "will engender confusion and unnecessary risk of liability for privately owned businesses," and the erroneous treating of private parties as state actors could expand beyond cable carriers to ISPs and content providers. Public access TV channel operator Chicago Access said the decision "threatens the future of public-access television" when it says private PEG operators engage in state action when exercising editorial discretion. It said the Chicago Access Network TV it operates "could not survive in its current form" if editorial decisions were subject to public forum scrutiny in federal court, while state laws impose huge administrative burden.

A complicating factor in the case is public access is run differently in different states, and local organizations and governments determine procedures for operating the channels, ACM President Mike Wassenaar said. He said the court could opt for a yes-no approach to the questions raised in the case: yes, public access is a free speech forum, but no, the private operator is not a state actor. He said a ruling upholding the 2nd Circuit decision could call into question the nonprofit status of some PEG operators.

Respondents' counsel Paul Hughes of Mayer Brown expects a narrow decision that won't say much about public access channels broadly because the case centers around New York law that's different from most. He said only Rhode Island apparently also has a law materially similar to New York's.

Hughes said the court likely took up the case because it has a particular interest in First Amendment and state actor questions. He said respondents will argue states have the right to set rules about how PEG channels work, with different states making different decisions, and that it should respect New York's choice. He said oral argument likely will be in January, with a decision by the end of June. De Leeuw said oral argument might not be until March or April given the briefing schedule.