Case No. 17-1702, 2d Cir.
Preview by Jeremy Allen-Arney
DeeDee Halleck produced programs for Manhattan Neighborhood Network (“MNN”), a privately-operated public access channel. In one of Halleck’s programs, her fellow Respondent Jesus Melendez expressed his displeasure with MNN staff by stating “I have to wait until they are fired, or they retire, or someone kills them so that I can come and have access to the facility here.” Brief for Petitioners at 9, Manhattan Cmty. Access Corp. v. Halleck, No. 17-1702 (U.S. filed Dec. 4, 2018) (emphasis omitted).
After its employees complained about Halleck’s program, MNN prohibited Halleck from airing the offending program in the future and claimed the program violated a zero-tolerance harassment policy. Halleck decided to bring suit, alleging MNN violated her First Amendment rights. The district court, however, granted MNN’s motion to dismiss because Halleck failed to allege that MNN was a state actor. The Second Circuit reversed and held that “[a] public access channel is the electronic version of the public square,” Halleck v. Manhattan Cmty. Access Corp., 882 F.3d 300, 304–06 (2d Cir. 2018), relying in large part on Justice Kennedy’s concurrence in Denver Area Educational Telecommunications Consortium, Inc. v. FCC, 518 U.S. 727, 793–94 (1996) (Kennedy, J., concurring). In order to decide this case, the Court must decide whether a privately-operated public access television channel qualifies as a state actor for First Amendment purposes.
Petitioners argue that the Second Circuit did not ask whether MNN is a state actor before deciding that it qualifies as a public forum, even though the Supreme Court’s decisions in Lugar v. Edmondson Oil Co., 457 U.S. 922, 936 (1982), and other cases require just that. Brief for Petitioners, supra, at 23. Petitioners further contend that if the Second Circuit had reached this public forum question, it should have concluded that MNN does not qualify as a public forum because New York does not retain control over its board. Id. at 38; see also Lebron v. Nat’l R.R. Passenger Corp., 513 U.S. 374, 399–400 (1995).
Respondents contend that the Supreme Court should let the Second Circuit ruling stand, and advance a narrow vision of the public forum doctrine: “A public forum cannot be created by a private party or by government inaction. . . . [T]he government must intentionally open the forum for use by the public to speak.” Brief for Respondents at 18, Halleck, No. 17-1702 (U.S. filed Jan. 11, 2019). Accordingly, Respondents argue that New York intentionally created its public access channels as public forums by adopting a “first-come, first-served” policy with respect to programming, making channel operators unable to exercise the discretion normally associated with private forums. See id. at 21.