As MuniBlog readers may be aware, public access television airs programs ranging from school district and municipal government meetings to publicly hosted programs. Sometimes a program may offend viewers or be critical of government or the public access channel. Can the channel refuse to air a piece, submitted by a member of the public, which criticizes the channel? Or is the channel a so-called “state actor” subject to certain limits in restricting such content?
This week, the U.S. Supreme Court ruled on such a scenario. In Manhattan Community Access Corp. v. Halleck et. al, the court considered whether a public access channel could ban from its airwaves a video that was critical of the channel; or if it was a “state actor” and thereby limited in its ability to ban the video under the Free Speech Clause of the First Amendment.
Prior to reaching the U.S. Supreme Court, the federal Court of Appeals had ruled that the channel was a public forum, much like a public park, and therefore the channel could not refuse to air the video. As part of its findings, the Court of Appeals noted that Manhattan Community Access Corp. (MNN) was selected by the government (Borough of Manhattan) to administer the public access and therefore operated as a government as a “state actor.”
In a 5-4 ruling, the Supreme Court found that the channel was a private entity and not a “state actor; and could not be “transformed” into a “state actor” by virtue of operating a public access channel. Therefore, the channel could ban a video under its editorial discretion without violating the Free Speech Clause of the First Amendment. Justice Brett Kavanaugh, writing for the majority, stated that a private entity can be a “state actor” only when it is doing something that only the government has traditionally done. As both public and private entities have historically operated public access channels, MNN was not operating as a government. The majority noted that this ruling could be a very narrow ruling as government could limit MNN’s editorial discretion should it so chose, so long as such limits do not violate the law.
