SUPREME COURT OF THE UNITED STATES
MANHATTAN COMMUNITY ACCESS CORPORATION, et al., PETITIONERS v.
DEEDEE HALLECK, et al.
on writ of certiorari to the united states court of appeals for the second circuit
[June 17, 2019]
Justice Sotomayor, with whom Justice Ginsburg, Justice Breyer, and Justice Kagan join, dissenting.
The Court tells a very reasonable story about a case that is not before us. I write to address the one that is.
This is a case about an organization appointed by the government to administer a constitutional public forum. (It is not, as the Court suggests, about a private property owner that simply opened up its property to others.) New York City (the City) secured a property interest in public-access television channels when it granted a cable franchise to a cable company. State regulations require those public-access channels to be made open to the public on terms that render them a public forum. The City contracted out the administration of that forum to a private organization, petitioner Manhattan Community Access Corporation (MNN). By accepting that agency relationship, MNN stepped into the City’s shoes and thus qualifies as a state actor, subject to the
First Amendment like any other.
A cable-television franchise is, essentially, a license to create a system for distributing cable TV in a certain area. It is a valuable right, usually conferred on a private company by a local government. See 47 U. S. C. §§522(9)–(10), 541(a)(2), (b)(1); Turner Broadcasting System
512 U.S. 622
, 628 (1994). A private company cannot enter a local cable market without one. §541(b)(1).
Cable companies transmit content through wires that stretch “between a transmission facility and the television sets of individual subscribers.” Id.
, at 627–628. Creating this network of wires is a disruptive undertaking that “entails the use of public rights-of-way and easements.” Id.
, at 628.
New York State authorizes municipalities to grant cable franchises to cable companies of a certain size only if those companies agree to set aside at least one public access channel. 16 N. Y. Codes, Rules & Regs. §§895.1(f), 895.4(b)(1) (2016). New York then requires that those public-access channels be open to all comers on “a first-come, first-served, nondiscriminatory basis.” §895.4(c)(4). Likewise, the State prohibits both cable franchisees and local governments from “exercis[ing] any editorial control” over the channels, aside from regulating obscenity and other unprotected content. §§895.4(c)(8)–(9).
Years ago, New York City (no longer a party to this suit) and Time Warner Entertainment Company (never a party to this suit) entered into a cable-franchise agreement. App. 22. Time Warner received a cable franchise; the City received public-access channels. The agreement also provided that the public-access channels would be operated by an independent, nonprofit corporation chosen by the Manhattan borough president. But the City, as the practice of other New York municipalities confirms, could have instead chosen to run the channels itself. See §895.4(c)(1); Brief for Respondents 35 (citing examples).
MNN is the independent nonprofit that the borough president appointed to run the channels; indeed, MNN appears to have been incorporated in 1991 for that precise purpose, with seven initial board members selected by the borough president (though only two thus selected today). See App. 23; Brief for Respondents 7, n. 1. The City arranged for MNN to receive startup capital from Time Warner and to be funded through franchise fees from Time Warner and other Manhattan cable franchisees. App. 23; Brief for New York County Lawyers Association (NYCLA) as Amicus Curiae
27; see also App. to Brief for Respondents 19a. As the borough president announced upon MNN’s formation in 1991, MNN’s “central charge is to administer and manage all the public access channels of the cable television systems in Manhattan.” App. to Brief for NYCLA as Amicus Curiae
As relevant here, respondents DeeDee Halleck and Jesus Papoleto Melendez sued MNN in U. S. District Court for the Southern District of New York under
42 U. S. C. §1983. They alleged that the public-access channels, “[r]equired by state regulation and [the] local franchise agreements,” are “a designated public forum of unlimited character”; that the City had “delegated control of that public forum to MNN”; and that MNN had, in turn, engaged in viewpoint discrimination in violation of respondents’
First Amendment rights. App. 39.
The District Court dismissed respondents’
First Amendment claim against MNN. The U. S. Court of Appeals for the Second Circuit reversed that dismissal, concluding that the public-access channels “are public forums and that [MNN’s] employees were sufficiently alleged to be state actors taking action barred by the
First Amendment.” 882 F.3d 300, 301–302 (2018). Because the case before us arises from a motion to dismiss, respondents’ factual allegations must be accepted as true. Hernandez
, 582 U. S. ___, ___ (2017) ( per curiam
) (slip op., at 1).
I would affirm the judgment below. The channels are clearly a public forum: The City has a property interest in them, and New York regulations require that access to those channels be kept open to all. And because the City (1) had a duty to provide that public forum once it granted a cable franchise and (2) had a duty to abide by the
First Amendment once it provided that forum, those obligations did not evaporate when the City delegated the administration of that forum to a private entity. Just as the City would have been subject to the
First Amendment had it chosen to run the forum itself, MNN assumed the same responsibility when it accepted the delegation.
When a person alleges a violation of the right to free speech, courts generally must consider not only what was said but also in what context it was said.
On the one hand, there are “public forums,” or settings that the government has opened in some way for speech by the public (or some subset of it). The Court’s precedents subdivide this broader category into various subcategories, with the level of leeway for government regulation of speech varying accordingly. See Minnesota Voters Alliance
, 585 U. S. ___, ___ (2018) (slip op., at 7). Compare Frisby
487 U.S. 474
, 480 (1988) (streets and public parks, traditional public forums), with Southeastern Promotions, Ltd.
420 U.S. 546
, 555 (1975) (city-leased theater, designated public forum), with Christian Legal Soc. Chapter of Univ. of Cal., Hastings College of Law
561 U.S. 661
, 669, 679, and n. 12 (2010) (program for registered student organizations, limited public forum). But while many cases turn on which type of “forum” is implicated, the important point here is that viewpoint discrimination is impermissible in them all. See Good News Club
v. Milford Central School
533 U.S. 98
, 106 (2001).
On the other hand, there are contexts that do not fall under the “forum” rubric. For one, there are contexts in which the government is simply engaging in its own speech and thus has freedom to select the views it prefers. See, e.g.
v. Texas Div.
, Sons of Confederate Veterans
, 576 U. S. ___, ___–___ (2015) (slip op., at 6–7) (specialty license plates); Pleasant Grove City
555 U.S. 460
, 467–469, 481 (2009) (privately donated permanent monuments in a public park).[1
] In addition, there are purely private spaces, where the
First Amendment is (as relevant here) inapplicable. The
First Amendment leaves a private store owner (or homeowner), for example, free to remove a customer (or dinner guest) for expressing unwanted views. See, e.g.
, Lloyd Corp.
407 U.S. 551
, 569–570 (1972). In these settings, there is no
First Amendment right against viewpoint discrimination.
Here, respondents alleged viewpoint discrimination. App. 39. So a key question in this case concerns what the Manhattan public-access channels are: a public forum of some kind, in which a claim alleging viewpoint discrimination would be cognizable, or something else, such as government speech or purely private property, where picking favored viewpoints is appropriately commonplace.[2
] Neither MNN nor the majority suggests that this is an instance of government speech. This case thus turns first and foremost on whether the public-access channels are or are not purely private property.[3
This Court has not defined precisely what kind of governmental property interest (if any) is necessary for a public forum to exist. See Cornelius
v. NAACP Legal Defense & Ed. Fund, Inc.
473 U.S. 788
, 801 (1985) (“a speaker must seek access to public property or to private property dedicated to public use”). But see ante
11, n. 3 (appearing to reject the phrase “private property dedicated to public use” as “passing dicta”). I assume for the sake of argument in this case that public-forum analysis is inappropriate where the government lacks a “significant property interest consistent with the communicative purpose of the forum.” Denver Area Ed. Telecommunications Consortium, Inc.
518 U.S. 727
, 829 (1996) (Thomas, J., concurring in judgment in part and dissenting in part).
Such an interest is present here. As described above, New York State required the City to obtain public-access channels from Time Warner in exchange for awarding a cable franchise. See supra
, at 2. The exclusive right to use these channels (and, as necessary, Time Warner’s infrastructure) qualifies as a property interest, akin at the very least to an easement.
The last time this Court considered a case centering on public-access channels, five Justices described an interest like the one here as similar to an easement. Although Justice Breyer did not conclude that a public-access channel was indeed a public forum, he likened the cable company’s agreement to reserve such channels “to the reservation of a public easement, or a dedication of land for streets and parks, as part of a municipality’s approval of a subdivision of land.” Denver Area
, 518 U. S., at 760–761 (joined by Stevens and Souter, JJ.). And Justice Kennedy observed not only that an easement would be an appropriate analogy, id.,
at 793–794 (opinion concurring in part, concurring in judgment in part, and dissenting in part, joined by Ginsburg, J.), but also that “[p]ublic access channels meet the definition of a public forum,” id.,
at 791, “even though they operate over property to which the cable operator holds title,” id.,
at 792; see also id.,
at 792–793 (noting that the entire cable system’s existence stems from the municipality’s decision to grant the franchise). What those five Justices suggested in 1996 remains true today.
“A common idiom describes property as a ‘bundle of sticks’—a collection of individual rights which, in certain combinations, constitute property.” United States
535 U.S. 274
, 278 (2002). Rights to exclude and to use are two of the most crucial sticks in the bundle. See id.,
at 283. “State law determines . . . which sticks are in a person’s bundle,” id.,
at 278, and therefore defining property itself is a state-law exercise.[4
] As for whether there is a sufficient property interest to trigger
First Amendment forum analysis, related precedents show that there is.
As noted above, there is no disputing that Time Warner owns the wires themselves. See Turner
512 U. S., at 628. If the wires were a road, it would be easy to define the public’s right to walk on it as an easement. See, e.g.
, In re India Street
, 29 N.Y.2d 97
, 100–103, 272 N. E 2d 518, 518–520 (1971). Similarly, if the wires were a theater, there would be no question that a government’s long-term lease to use it would be sufficient for public-forum pur- poses. Southeastern Promotions
, 420 U. S., at 547, 555. But some may find this case more complicated because the wires are not a road or a theater that one can physically occupy; they are a conduit for transmitting signals that appear as television channels. In other words, the question is how to understand the right to place content on those channels using those wires.
The right to convey expressive content using someone else’s physical infrastructure is not new. To give another low-tech example, imagine that one company owns a billboard and another rents space on that billboard. The renter can have a property interest in placing content on the billboard for the lease term even though it does not own the billboard itself. See, e.g., Naegele Outdoor Advertising Co. of Minneapolis
, 532 N.W.2d 249
, 253 (Minn. 1995); see also Matter of XAR Corp.
v. Di Donato
, 76 App. Div. 2d 972, 973, 429 N.Y.S.2d 59, 60 (1980) (“Although invariably labeled ‘leases,’ agreements to erect advertising signs or to place signs on walls or fences are easements in gross”).
The same principle should operate in this higher tech realm. Just as if the channels were a billboard, the City obtained rights for exclusive use of the channels by the public for the foreseeable future; no one is free to take the channels away, short of a contract renegotiation. Cf. Craft
, 535 U. S., at 283. The City also obtained the right to administer, or delegate the administration of, the channels. The channels are more intangible than a billboard, but no one believes that a right must be tangible to qualify as a property interest. See, e.g.
v. United States
364 U.S. 40
, 48–49 (1960) (treating destruction of valid liens as a taking); Adams Express Co.
v. Ohio State Auditor
166 U.S. 185
, 219 (1897) (treating “privileges, corporate franchises, contracts or obligations” as taxable property). And it is hardly unprecedented for a government to receive a right to transmit something over a private entity’s infrastructure in exchange for conferring something of value on that private entity; examples go back at least as far as the 1800s.[5
I do not suggest that the government always obtains a property interest in public-access channels created by franchise agreements. But the arrangement here is consistent with what the Court would treat as a governmental property interest in other contexts. New York City gave Time Warner the right to lay wires and sell cable TV. In exchange, the City received an exclusive right to send its own signal over Time Warner’s infrastructure—no different than receiving a right to place ads on another’s billboards. Those rights amount to a governmental property interest in the channels, and that property interest is clearly “consistent with the communicative purpose of the forum,” Denver Area
, 518 U. S., at 829 (opinion of Thomas, J.). Indeed, it is the right to transmit the very content to which New York law grants the public open and equal access.
With the question of a governmental property interest resolved, it should become clear that the public-access channels are a public forum.[6
] Outside of classic examples like sidewalks and parks, a public forum exists only where the government has deliberately opened up the setting for speech by at least a subset of the public. Cornelius
, 473 U. S., at 802. “Accordingly, the Court has looked to the policy and practice of the government,” as well as the nature of the property itself, “to ascertain whether it intended to designate a place not traditionally open to assembly and debate as a public forum.” See ibid.
For example, a state college might make its facilities open to student groups, or a municipality might open up an auditorium for certain public meetings. See id.
, at 802–803.
The requisite governmental intent is manifest here. As noted above, New York State regulations require that the channels be made available to the public “on a first-come, first-served, nondiscriminatory basis.” 16 N. Y. Codes, Rules & Regs. §895.4(c)(4); see also §§895.4(c)(8)–(9). The State, in other words, mandates that the doors be wide open for public expression. MNN’s contract with Time Warner follows suit. App. 23. And that is essentially how MNN itself describes things. See Tr. of Oral Arg. 9 (“We do not prescreen videos. We—they come into the door. We put them on the air”).[7
] These regulations “evidenc[e] a clear intent to create a public forum.” Cornelius
, 473 U. S., at 802.
If New York’s public-access channels are a public forum, it follows that New York cannot evade the
First Amendment by contracting out administration of that forum to a private agent. When MNN took on the responsibility of administering the forum, it stood in the City’s shoes and became a state actor for purposes of
42 U. S. C. §1983.
This conclusion follows from the Court’s decision in West
487 U.S. 42
(1988). The Court in West
unanimously held that a doctor hired to provide medical care to state prisoners was a state actor for purposes of §1983. Id.
, at 54; see also id.,
at 58 (Scalia, J., concurring in part and concurring in judgment). Each State must provide medical care to prisoners, the Court explained, id.,
at 54, and when a State hires a private doctor to do that job, the doctor becomes a state actor, “ ‘clothed with the authority of state law,’ ” id.
, at 55. If a doctor hired by the State abuses his role, the harm is “caused, in the sense relevant for state-action inquiry,” by the State’s having incarcerated the prisoner and put his medical care in that doctor’s hands. Ibid.
The fact that the doctor was a private contractor, the Court emphasized, made no difference. Ibid.
It was “the physician’s function within the state system,” not his private-contractor status, that determined whether his conduct could “fairly be attributed to the State.” Id.
, at 55–56. Once the State imprisoned the plaintiff, it owed him duties under the
Eighth Amendment; once the State delegated those duties to a private doctor, the doctor became a state actor. See ibid.
; see also id.
, at 56–57. If the rule were any different, a State would “ ‘be free to contract out all services which it is constitutionally obligated to provide and leave its citizens with no means for vindication of those rights, whose protection has been delegated to ‘private’ actors, when they have been denied.’ ” Id.,
at 56, n. 14.
resolves this case. Although the settings are different, the legal features are the same: When a government (1) makes a choice that triggers constitutional obligations, and then (2) contracts out those constitutional responsibilities to a private entity, that entity—in agreeing to take on the job—becomes a state actor for purposes of §1983.[8
Not all acts of governmental delegation necessarily trigger constitutional obligations, but this one did. New York State regulations required the City to secure public-access channels if it awarded a cable franchise. 16 N. Y. Codes, Rules & Regs. §895.4(b)(1). The City did award a cable franchise. The State’s regulations then required the City to make the channels it obtained available on a “first-come, first-served, nondiscriminatory basis.”[9
] §895.4(c)(4). That made the channels a public forum. See supra,
at 9–10. Opening a public forum, in turn, entailed
First Amendment obligations.
The City could have done the job itself, but it instead delegated that job to a private entity, MNN. MNN could have said no, but it said yes. (Indeed, it appears to exist entirely to do this job.) By accepting the job, MNN accepted the City’s responsibilities. See West
, 487 U. S., at 55. The
First Amendment does not fall silent simply because a government hands off the administration of its constitutional duties to a private actor.
The majority acknowledges that the
First Amendment could apply when a local government either (1) has a property interest in public-access channels or (2) is more directly involved in administration of those channels than the City is here. Ante
, at 15. And it emphasizes that it “decide[s] only the case before us in light of the record before us.” Ibid
. These case-specific qualifiers sharply limit the immediate effect of the majority’s decision, but that decision is still meaningfully wrong in two ways. First, the majority erroneously decides the property question against the plaintiffs as a matter of law. Second, and more fundamentally, the majority mistakes a case about the government choosing to hand off responsibility to an agent for a case about a private entity that simply enters a marketplace.
The majority’s explanation for why there is no governmental property interest here, ante
, at 14–15,
does not hold up. The majority focuses on the fact that “[b]oth Time Warner and MNN are private entities”;
that Time Warner “owns its cable network, which contains the public access channels”; and that “MNN operates those public access channels with its own facilities and equipment.” Ante
, at 14; see also ante
, at 15. Those considerations cannot resolve this case. The issue is not who owns the cable network or that MNN uses its own property to operate the channels. The key question, rather, is whether the channels themselves are purely private property. An advertiser may not own a billboard, but that does not mean that its long-term lease is not a property interest. See supra
, at 8.
The majority also says that “[n]othing in the record here suggests that a government . . . owns or leases either the cable system or the public access channels at issue here.” Ante
, at 14. But the cable system itself is irrelevant, and, as explained above, the details of the exchange that yielded Time Warner’s cable franchise suggest a governmental property interest in the channels. See supra,
The majority observes that “the franchise agreements expressly place the public access channels ‘under the jurisdiction’ of MNN,” ante
, at 14, but that language sim- ply describes the City’s appointment of MNN to administer the channels. The majority also chides respondents for failing to “alleg[e] in their complaint that the City has a property interest in the channels,” ibid.
, but, fairly read, respondents’ complaint includes such an assertion.[10
] In any event, any ambiguity or imprecision does not justify resolving the case against respondents at the motion-to-dismiss stage. To the extent the majority has doubts about respondents’ complaint—or factual or state-law issues that may bear upon the existence of a property interest—the more prudent course would be to vacate and remand for the lower courts to consider those matters more fully. In any event, as I have explained, the best course of all would be to affirm.
More fundamentally, the majority’s opinion erroneously fixates on a type of case that is not before us: one in which a private entity simply enters the marketplace and is then subject to government regulation. The majority swings hard at the wrong pitch.
The majority focuses on Jackson
v. Metropolitan Edison Co.
419 U.S. 345
(1974), which is a paradigmatic example of a line of cases that reject §1983 liability for private actors that simply operate against a regulatory backdrop. Jackson
emphasized that the “fact that a business is subject to state regulation does not by itself convert its action into that of the State.” Id.
, at 350; accord, ante
, at 12. Thus, the fact that a utility company entered the marketplace did not make it a state actor, even if it was highly regulated. See Jackson
, 419 U. S., at 358; accord, ante
, at 12–13. The same rule holds, of course, for private comedy clubs and grocery stores. See ante
, at 9.[11
line of cases is inapposite here. MNN is not a private entity that simply ventured into the marketplace. It occupies its role because it was asked to do so by the City, which secured the public-access channels in exchange for giving up public rights of way, opened those channels up (as required by the State) as a public forum, and then deputized MNN to administer them. That distinguishes MNN from a private entity that simply sets up shop against a regulatory backdrop. To say that MNN is nothing more than a private organization regulated by the government is like saying that a waiter at a restaurant is an independent food seller who just happens to be highly regulated by the restaurant’s owners.
The majority also relies on the Court’s statements that its “public function” test requires that a function have been “traditionally and exclusively performed” by the government. Ante
, at 6 (emphasis deleted); see Jackson
, 419 U. S., at 352. Properly understood, that rule cabins liability in cases, such as Jackson
, in which a private actor ventures of its own accord into territory shared (or regulated) by the government (e.g.
by opening a power com- pany or a shopping center). The Court made clear in West
that the rule did not reach further, explaining that “the fact that a state employee’s role parallels one in the private sector” does not preclude a finding of state action. 487 U. S., at 56, n. 15.
When the government hires an agent, in other words, the question is not whether it hired the agent to do something that can be done in the private marketplace too. If that were the key question, the doctor in West
would not have been a state actor. Nobody thinks that orthopedics is a function “traditionally exclusively reserved to the State,” Jackson
, 419 U. S., at 352.
The majority consigns West
to a footnote, asserting that its “scenario is not present here because the government has no [constitutional] obligation to operate public access channels.” Ante
, at 7, n. 1. The majority suggests that West
is different because “the State was constitutionally obligated to provide medical care to prison inmates.” Ante
, at 7, n. 1. But what the majority ignores is that the State in West
had no constitutional obligation to open the prison or incarcerate the prisoner in the first place; the obligation to provide medical care arose when it made those prior choices.
The City had a comparable constitutional obligation here—one brought about by its own choices, made against a state-law backdrop. The City, of course, had no constitutional obligation to award a cable franchise or to operate public-access channels. But once the City did award a cable franchise, New York law required the City to obtain public-access channels, see supra
, at 2, and to open them up as a public forum, see supra
, at 9–10. That is when the City’s obligation to act in accordance with the
First Amendment with respect to the channels arose. That is why, when the City handed the administration of that forum off to an agent, the Constitution followed. See supra
, at 10–13.[12
The majority is surely correct that “when a private entity provides a forum for speech, the private entity is not ordinarily constrained by the
First Amendment.” Ante
, at 9. That is because the majority is not talking about constitutional
forums—it is talking about spaces where private entities have simply invited others to come speak. A comedy club can decide to open its doors as wide as it wants, but it cannot appoint itself as a government agent. The difference is between providing a service of one’s own accord and being asked by the government to administer a constitutional responsibility (indeed, here, existing to do so) on the government’s behalf.[13
To see more clearly the difference between the cases on which the majority fixates and the present case, leave aside the majority’s private comedy club. Imagine instead that a state college runs a comedy showcase each year, renting out a local theater and, pursuant to state regulations mandating open access to certain kinds of student activities, allowing students to sign up to perform on a first-come, first-served basis. Cf. Rosenberger
v. Rector and Visitors of Univ. of Va.
515 U.S. 819
(1995). After a few years, the college decides that it is tired of running the show, so it hires a performing-arts nonprofit to do the job. The nonprofit prefers humor that makes fun of a certain political party, so it allows only student acts that share its views to participate. Does the majority believe that the nonprofit is indistinguishable, for purposes of state action, from a private comedy club opened by local entrepreneurs?
I hope not. But two dangers lurk here regardless. On the one hand, if the City’s decision to outsource the channels to a private entity did render the
First Amendment irrelevant, there would be substantial cause to worry about the potential abuses that could follow. Can a state university evade the
First Amendment by hiring a nonprofit to apportion funding to student groups? Can a city do the same by appointing a corporation to run a municipal theater? What about its parks?
On the other hand, the majority hastens to qualify its decision, see ante
, at 7, n. 1, 15, and to cabin it to the specific facts of this case, ante
, at 15. Those are prudent limitations. Even so, the majority’s focus on Jackson
still risks sowing confusion among the lower courts about how and when government outsourcing will render any abuses that follow beyond the reach of the Constitution.
In any event, there should be no confusion here. MNN is not a private entity that ventured into the marketplace and found itself subject to government regulation. It was asked to do a job by the government and compensated accordingly. If it does not want to do that job anymore, it can stop (subject, like any other entity, to its contractual obligations). But as long as MNN continues to wield the power it was given by the government, it stands in the government’s shoes and must abide by the
First Amendment like any other government actor.
This is not a case about bigger governments and smaller individuals, ante
, at 16; it is a case about principals and agents. New York City opened up a public forum on public-access channels in which it has a property interest. It asked MNN to run that public forum, and MNN accepted the job. That makes MNN subject to the
First Amendment, just as if the City had decided to run the public forum itself.
While the majority emphasizes that its decision is narrow and factbound, ante
, at 15, that does not make it any less misguided. It is crucial that the Court does not continue to ignore the reality, fully recognized by our precedents, that private actors who have been delegated constitutional responsibilities like this one should be accountable to the Constitution’s demands. I respectfully dissent.