Manhattan Community Access Corp. v. Halleck: Property Wins Out Over Speech on the Supposedly Free-Speech Court

Genevieve Lakier Assistant Professor of Law, University of Chicago Law School

It is a widely shared view among First Amendment scholars that we have today the “most speech-protective [U.S. Supreme] Court in a generation, if not in our history.”[1] Supporters of the Court praise its libertarian zeal when it comes to speech. Critics, meanwhile, bemoan the Court’s tendency to rigorously scrutinize the regulation of commercial advertising and corporate speech and many other kinds of speech that in earlier decades were considered beyond the scope of the First Amendment. They argue that this phenomenon of “First Amendment imperialism” or “First Amendment expansionism” threatens effective democratic government, not to mention the health of the regulatory state.[2] What both supporters and critics agree on, however, is that this is a time of First Amendment ascendancy—at least in the federal courts.

In some respects, this is true. It is certainly true that in recent decades the Court has extended First Amendment protection to not only commercial advertising and corporate speech but also violent video games, depictions of animal cruelty, lies, and many other kinds of formerly-unprotected speech.[3] It is also true that, in its constitutional jurisprudence, the Court has tended to weigh free speech interests more heavily than many countervailing interests—interests such as equality or privacy, for example. In this respect, the contemporary First Amendment is very strong.

In other respects, however, the contemporary First Amendment is very weak. As I have argued in other work, although the Court has tended to prioritize the expressive freedom of the speaker over countervailing goods such as equality and privacy, it has generally treated free speech interests as second fiddle to property interests.[4] When speech and property interests coincide, the Court strongly protects them. When speech interests come into conflict, property interests win out. The result is that contemporary free speech law vigorously safeguards the right of property owners to use their property for whatever expressive purposes they desire but only weakly protects speakers who wish to participate in public debate but need to use public property to do so, or to otherwise speak on property they do not own. As a result, it fails to meaningfully protect many kinds of speech—political protests, for example—that have traditionally been considered a core First Amendment concern.[5] By allowing inequalities in property and wealth to limit who can participate in public life, contemporary free speech law also fails to ensure the “uninhibited, robust, and wide-open” public debate that the Court has insisted for decades is one of the First Amendment’s central goals.[6]

Last term’s decision in Manhattan Community Access Corporation v. Halleck demonstrates quite vividly—and in an unusually explicit manner—the Court’s tendency in recent years to weigh property interests over speech interests.[7] The case involved a First Amendment challenge to the decision by a private nonprofit corporation known as the Manhattan Neighborhood Network (MNN) to deny two documentary producers access to the public access channels that New York law requires cable companies that operate in the state to dedicate to non-discriminatory public use. In 1991, MNN was tasked by the Manhattan Borough President with the job of managing the public access channels in Manhattan for the cable company Time Warner.[8] The plaintiffs argued that MNN denied them access to the channels it managed because of their viewpoint, in violation of their First Amendment right to freedom of speech, and filed suit against the corporation, as well as the City of New York , seeking declaratory and injunctive relief.[9] The district court dismissed their complaint, however, and although the Second Circuit reversed that decision, the Supreme Court in a five-to-four decision reaffirmed it.[10]

The Court held that the plaintiffs’ lawsuit had to be dismissed because MNN is not a state actor to whom the First Amendment’s non-discrimination obligations apply.[11] In reaching this conclusion, the majority rejected the possibility that New York’s public access channels are a designated public forum—that is to say, a forum for speech that the government has dedicated to non-discriminatory public use.[12] It insisted that because public access channels are privately-owned, they cannot be a public forum.[13] As a result, the Court concluded that MNN does not play a sufficiently important governmental role to qualify as a state actor.

As I argue in what follows, this conclusion is difficult to defend or, for that matter, understand. This is because it utterly fails to promote either of the purposes the Court has invoked in recent years to justify the state-action requirement. It certainly does not promote any First Amendment values. Nor does it promote any other significant constitutional interest. In his majority opinion, Justice Kavanaugh (writing, notably, his first free-speech opinion as a member of the Court) argued that the Court’s holding was necessary to protect the ability of private property owners like Time Warner to shape the speech forums they created with their property as they desired.[14] But under New York law, owners of public access channels like Time Warner do not possess any freedom to “exercise . . . editorial discretion within [those speech] forum[s].”[15] The opinion protects a freedom, in other words, that does not exist.

Rather than the vindication of individual liberty it purports to be, what the decision in Halleck appears to vindicate is what Justice Marshall once described, in a related context, as the “formalities of title.”[16] Alternatively, the decision might be interpreted as a sign that the conservative majority on the Court is no longer as comfortable as it once was with the constitutionality of regulatory regimes like the one in New York, which requires cable operators to give up control of some portion of their cable channels in an effort to promote the public good.[17] Although the Court did not address the underlying constitutionality of New York’s public access television regulations in Halleck, Justice Kavanaugh appended a footnote to his opinion, making clear that nothing in the opinion precluded the Court from doing so later.[18] The fact that he felt the need to so include that footnote certainly suggests that some members of the Court are interested in revisiting the question of whether legislatures can constitutionally require cable operators to cede editorial control of the content of some of their channels in an effort to promote a more robust and inclusive public sphere. Halleck might therefore be interpreted as the first step towards a doctrinal arrangement that does in fact protect individual liberty—albeit the liberty of the property owner to make whatever use of its property it desires, rather than the liberty of the speaker to participate in public debate. Either way, the decision is a depressing, but not terribly surprising, reminder of the Roberts Court’s tendency to prioritize property over speech interests and, consequently, the strongly anti-redistributive tendencies of its free speech jurisprudence.

In what follows, I first lay out the doctrinal background of the decision and the narrow state-action test under which it was resolved before examining the arguments that the plaintiffs made to explain why MNN should be considered a state actor, and the very unpersuasive arguments that Justice Kavanaugh relied on in his majority opinion to justify the Court’s rejection of those arguments. I also briefly examine the attempt by Justice Sotomayor in her dissenting opinion (which Justices Breyer, Ginsburg, and Kagan joined) to translate the plaintiffs’ argument into a language of property that the majority might appreciate—to no avail. Finally, I conclude by sketching out the implications of the decision, including what it tells us about the future of free-speech jurisprudence from a Court in which Justice Kavanaugh is a member and Justice Kennedy is not. The bottom line is that the news is bad for those of us (like myself) who think the First Amendment should be interpreted to protect more than the expressive freedom of powerful property owners.

I. The Doctrinal Background of the Case

In Halleck, the Court was faced with the kind of question it has had to answer in state-action cases for over 140 years. Ever since the Court declared in the late nineteenth century that the rights guaranteed by the Fourteenth Amendment (including the right to freedom of speech) prohibit “State action of a particular character” but not the “[i]ndividual invasion of individual rights,” courts have had to figure out when rights-violating behavior is the product of “state action of a particular character” and when it is not.[19]

This has not proven to be a simple question to answer. In its first important state-action decision, the Civil Rights Cases, the Court made clear that the state acts for Fourteenth Amendment purposes not only when its agents or institutions directly violate the constitutional rights of its citizens themselves, but also when it provides support “in the shape of laws, customs, or judicial or executive proceedings” to the “wrongful acts of [private] individuals,” or otherwise provides “[s]ome shield of State law or State authority” that allows the wrongful private conduct to occur.[20] Since then, the Court has continued to recognize that the wrongful acts of private individuals can, when supported by state action of some kind, violate the Fourteenth Amendment.

The Court has been unwilling, however, to conclude that the state-action requirement is satisfied whenever government institutions, agents, and officers provide support of any kind whatsoever to private wrongdoing, even if this is what Justice Bradley’s opinion in the Civil Rights Cases appears to suggest. One can understand why: Were courts to understand state action in this way, the result would be to obliterate the state-action requirement as a meaningful limit on the Constitution’s reach. This is because there is virtually no private activity that is not enabled in some way by state laws, customs, or executive or judicial proceedings. (This is what critics of the state-action doctrine mean when they claim that state action is omnipresent.)[21]

In order to preserve the meaningfulness of the state-action requirement as a limit on the Constitution’s reach, the Court has instead insisted that where the government is accused of violating the Fourteenth Amendment by aiding and abetting private conduct, it must have done more than merely support the private conduct; it must have “to some significant extent . . . been found to have become involved in it.”[22] What the Court has understood this to mean has changed considerably over time, however.

During the 1940s, 1950s, and 1960s, the Court tended to construe this requirement expansively. It found that the state had sufficiently involved itself in private wrongdoing to satisfy the state-action requirement when its courts helped enforce racially discriminatory private contracts or mobilized the coercive machinery of the government to enforce other kinds of private discriminatory conduct.[23] The Court also found the requirement satisfied when government officials approved, or at least failed to object to, allegedly wrongful private conduct that they had the power to prevent.[24]

Even in cases where state actors neither enforced nor approved harmful private conduct, the Court found the state-action requirement satisfied when the government vested the private actor with power or status that ordinary private citizens did not possess. For example, in Burton v. Wilmington Parking Authority, the Court found that the government’s failure to prevent a private restaurant that leased space in a publicly-owned parking garage from denying service to African-American customers constituted state action because, by leasing the restaurant space in a building that was dedicated to public use, and by using the money from the lease to keep the parking garage running, the government had “place[d] its power, property and prestige behind the [restaurant’s] admitted discrimination.”[25] Several years later, in Evans v. Newton, the Court similarly concluded that the decision by a city government to transfer a public park’s title to private trustees so that they could operate it in the whites-only fashion demanded by the original property owner’s will constituted state action in violation of the Fourteenth Amendment.[26] The Court argued that, by transferring to private trustees title to a property that “like a fire department or [a] police department . . . traditionally serve[d] the [entire] community,” the city government “endowed [those trustees] with powers [and] functions [that were] governmental in nature.” [27] This was sufficient, the Court held, to establish constitutional liability for whatever discriminatory acts those trustees engaged in, even acts that city officials did not help enforce, or specifically approve.[28]

With the emergence of the Burger Court in the 1970s, the Court veered sharply away from the expansive conception of state action articulated in Burton, Evans and many other mid-twentieth century opinions. Although the Court did not deny that state support for private wrongdoing could in some cases violate the Fourteenth Amendment, it applied a very different test than it previously had. Rather than assuming that the state-action requirement was satisfied whenever the government empowered wrongful private conduct—by enforcing it, tolerating it, or placing its property, power, and prestige behind it—the Court now insisted that the requirement was satisfied only when “there [wa]s a sufficiently close nexus between the State and the challenged action of the regulated entity so that the action of the latter may be fairly treated as that of the State itself.”[29] This may sound like a small change, but in fact it was substantial. It meant that the Fourteenth Amendment would no longer protect individuals against harmful acts perpetrated by private actors except when those private actors were so closely linked to governmental power that when they acted, they more or less were the government in all but name.[30]

The result was to make state action much more difficult to establish in cases in which the government provided permission or support to private persons who intruded on the rights of other private persons. Indeed, if during the 1940s, 1950s, and 1960s, the Court very rarely found there not to be state action in cases of this sort, in the subsequent decades, the reverse turned out to be true. Since 1970, the Court has found state action in cases involving allegedly unconstitutional behavior performed by someone other than a government official or employee on no more than a half-dozen occasions. In all these cases, the private actor was either directly controlled by or primarily composed of government agents, [31] or engaged in its allegedly unconstitutional behavior in close coordination with government officials,[32] or committed the wrongful acts while performing a function that was traditionally (and the Court elsewhere explained, exclusively) performed by the government.[33]

When none of these conditions were met, the Court refused to find state action—even when the government approved the actions of the private wrongdoer and even when the private actor provided an important public service. For example, in Jackson v. Metropolitan Edison Company, the Court concluded that the decision by an electrical utility to deny service to a customer in alleged violation of her due process rights did not constitute state action, even though the utility provided a public service, just as a fire department or police department did—it was the only company to provide electricity to consumers in the area—and even though state regulators had approved, or at least failed to object to, the specific termination procedures challenged in the case.[34] Because the furnishing of electricity was not a function that was “traditionally associated with sovereignty” and because the state regulators had not specifically ordered the utility to utilize those termination procedures, the Court concluded that the “State [government] [wa]s not sufficiently connected [to the challenged practices] so as to make [the] respondent’s conduct . . . attributable to the State for purposes of the Fourteenth Amendment.”[35]

A few years later, the Court reached a similar conclusion in Blum v. Yaretsky.[36] In that case, a class of Medicaid patients claimed that their constitutional due process rights were violated when the private nursing homes in which they were residing either discharged them or transferred them to nursing homes that provided less intensive medical care without giving them notice or a hearing.[37] The Court concluded that the state-action requirement was not satisfied, even though the state not only subsidized the operating and capital costs of the nursing homes involved in the suit and paid the medical expenses of more than ninety percent of the patients in the facilities, but also provided the diagnostic criteria the nursing homes relied on when making the transfer and discharge decisions, and used its power of the purse to strongly encourage nursing homes to use these diagnostic criteria when deciding what level of patient care was appropriate.[38] Because the government did not make the nursing homes execute the discharges and transfers, and because the provision of medical care was not “traditionally the exclusive prerogative of the State,” the Court concluded that the nursing homes were not state actors for Fourteenth Amendment purposes.[39]

The narrow test of state action that the Court relied upon in Jackson and Blum remains the prevailing test of state action today. This explains why the plaintiffs in Halleck could not satisfy the state-action requirement merely by showing that New York City denied the claim of viewpoint discrimination they raised in the administrative proceedings the city provided to users of the public access channels.[40] Although this decision provided a “shield of State law” that allowed MNN’s alleged wrongful viewpoint discrimination to continue to occur, this was far from sufficient under contemporary precedents to establish state action. Indeed, plaintiffs did not even bother making this state-action argument at the district or appellate courts, despite the fact that it is an argument that Justice Bradley’s opinion in the Civil Rights Cases appears to specifically approve. Nor did the plaintiffs argue that MNN was a state actor because the New York City government had placed its “power[] and prestige,” if not its property, behind the corporation when it designated it the entity responsible for managing access to public access cable channels in Manhattan.[41]

Instead, the plaintiffs made (as they had to) a much narrower argument: namely, that, unlike the electrical utility in Jackson or the nursing home in Blum, MNN exercised a traditionally and exclusively governmental power and therefore could be “fairly treated” as a state actor even when its actions were not directly controlled or coerced by the government, as was true in this case.[42] As I explore in the next section, this is a test that is intended to be difficult to satisfy. Nevertheless, the plaintiffs had very good reason to believe that MNN was one of the rare private actors that qualifies as a state actor under this prong of the contemporary state-action test, because of the role it plays in the regulation of public speech under New York state law.

II. The Fight Over What Counts as a Traditional and Exclusive Governmental Function

Since at least its 1972 decision in Lloyd Corp. v. Tanner, the Court has recognized that private persons may qualify as state actors when they exercise the traditional and exclusive functions of the government.[43] In such cases, it has explained, private entities qualify as state actors because they “st[an]d in the shoes of the State”; they act as if they are the government even when they have no ties to the government per se, and do so presumably with the approval of government officials.[44] It is for this reason that the Court has found it appropriate to impose on private persons who exercise these kinds of functions obligations that otherwise would belong only to government officials or employees, or those who are agents of government in all but name.

Although this prong of the state-action test is a well-established part of Fourteenth Amendment jurisprudence, the Court has never precisely delineated its limits. The Court has noted, for example, that running a town is a traditional and exclusive prerogative of government, but in the early twentieth century there were thousands of privately-owned towns in the United States.[45] In what way then is the exercise of municipal powers an exclusive prerogative of the state? The Court has not said. Similarly, the Court has identified the holding of elections as a traditional and exclusive government power.[46] But in fact, primary elections were for most of the nineteenth century not only an integral part of the democratic political process but events that were entirely organized by private political parties, with minimal state intervention or control.[47] Today, although there is extensive regulation of political primaries, it remains the case that these incredibly important elections are typically organized by private parties.[48] In what sense then is the running of an election either a traditional or an exclusive prerogative of the government? The cases provide no answer to these questions.

The lack of clarity that bedevils this area of state-action jurisprudence can be blamed, at least in part, on the fact that the traditional and exclusive prerogatives-of-government prong of the state-action test did not emerge organically from the cases. It was instead invented by the Burger Court as a means of integrating into its new state-action jurisprudence decisions that were handed down during a very different era but that the Court did not simply want to overrule. Indeed, prior to Lloyd Corp., there is no hint whatsoever in the cases that a private entity—the trustees in Evans, for example, or the restaurant in Burton—had to perform not only a governmental function, but an exclusively governmental function in order to qualify on that basis as a state actor. But by reading this requirement back in time, the Court was able to significantly limit the precedential reach of those and other early- and mid-twentieth century state-action cases.

This effort was remarkably successful. Today, Evans is frequently cited as an example of the traditional and exclusive prerogatives state-action test—although nothing in the opinion suggests that the Court that decided it believed its logic applied only in contexts where the government delegated to a private party a power that was exclusively governmental.[49] The reach of many other early- and mid-twentieth century state-action decisions has been similarly cabined as well.[50]

What the Court’s rather aggressive re-reading of its earlier precedents has produced, however, is a body of law in which the cases invoked most often as applications of the traditional and exclusive governmental-functions test do not in fact employ its logic, nor necessarily involve private entities that exercised a power that was otherwise only exercised by the government. What this means is that it is often very difficult to reach definite conclusions about whether a particular exercise of power is a traditional and exclusive government function. It is simply too unclear what the test means to conclude much about it definitively.[51]

That said, the plaintiffs in Halleck had a very good argument for why, notwithstanding the indeterminacy—as well as the narrowness—of the test, MNN did in fact exercise a power that was traditionally and almost exclusively wielded by the government. The plaintiffs’ claim was that MNN exercised a traditionally and almost-exclusively governmental power insofar as its job—the job given it by the New York City government—was to regulate speech in a public forum. The New York legislature created that public forum when it enacted a law requiring all cable companies operating in the state to dedicate one or more of their television channels to “noncommercial use by the public on a first-come, first-served, nondiscriminatory basis.”[52]

This argument was strong because, as the plaintiffs pointed out, First Amendment cases had long assumed that the job of managing speech in the public forum is a fundamentally governmental responsibility.[53] The Court had occasionally recognized—most notably, in Marsh v. Alabama in 1946—that it is not always the government that regulates speech in streets and parks and other important sites of public expression. For the most part, however, the Court has assumed that it is the government that is primarily responsible for ensuring that all ideas and viewpoints have equal access to the public forum.[54] The Court has also assumed—in fact, insisted—that only the government can create a public forum by dedicating either real or abstract property to non-discriminatory public use.[55]

The case for treating the regulation of speech in a public forum as a traditional and exclusive government power was, in other words, as strong if not stronger than the case for treating the regulation of elections or the regulation of a town as traditional and exclusive government power. And indeed, multiple lower courts, prior to Halleck, had expressly held that the regulation of speech in a public forum satisfies this prong of the state-action test.[56]

MNN, perhaps for this reason, did not contest the plaintiffs’ claim that regulating speech in a public forum was a traditional and exclusive governmental function. What it contested was the claim that New York’s public access channels were a public forum. MNN argued that because the public channels are privately owned, they cannot, by definition, qualify as a public forum.[57]

But here too, the plaintiffs had a strong argument. Although it is true that the phrasing in the Court’s public-forum cases often suggested that public forums only occurred on publicly owned land, at no point prior to Halleck had the Court held that they had to be.[58] Quite the opposite. Perhaps the most important public-forum opinion ever written—Justice Roberts’s plurality opinion in Hague v. CIO—makes clear that property rules do not determine the scope of speakers’ First Amendment rights of access to the public forum.[59] Justice Black’s opinion seven years later in Marsh asserted the same thing.[60] And while both of these opinions concerned traditional public forums—forums that have “from time out of mind” been considered important sites of public expression—in later cases, the Court strongly suggested that the same was true of public forums that the state created, or “designated,” for public use.[61] In U.S. Postal Service v. Council of Greenburgh Civic Associations, for example, the Court noted that public forums could exist on property that the government either “owned or controlled.”[62] Similarly, in Cornelius v. NAACP Legal Defense and Educational Fund, the Court appeared to take for granted that designated public forums exist when the government dedicates either public or private property to public use.[63]

Two decades ago, in his concurring opinion in Denver Area Educational Telecommunications Consortium, Inc. v. FCC, Justice Kennedy relied on these earlier precedents to make, quite forcefully, the same argument that the Halleck plaintiffs now made.[64] When the government mandates that access to public access television channels be made available to members of the public on a non-discriminatory basis, Justice Kennedy argued, what it creates is a “designated public forum, of unlimited character.”[65] This is because what the government does, when it demands that “cable operator[s] surrender [their] power to exclude” speakers from public access channels is to “dedicate [that] property to public expressive activities.”[66] This act, Justice Kennedy insisted, inevitably has constitutional implications, even if it is not constitutionally compelled.[67]

Although Justice Ginsburg was the only member of the Court to join Justice Kennedy’s opinion, the four members of the Court who signed on to the plurality opinion in Denver Area made clear that they did not necessarily disagree with the conclusion Justice Kennedy reached. They merely deemed it imprudent to reach a definitive conclusion about the constitutional status of public access cable channels at that time.[68] Only Justice Thomas (joined by Justice Scalia) disagreed. In a separate concurrence, he argued, contra Hague, that title does in fact determine First Amendment rights of access to publicly-important speech forums.[69]

There was thus good, although certainly not uncomplicated, precedential support for the conclusion that the channels that MNN managed were public speech forums even though they were privately owned. Just like other designated public forums of “unlimited character,” the public access channels at issue in Halleck were clearly dedicated by the New York legislature to non-discriminatory public use.

There was, moreover, no principled reason to treat the public access channels differently than other kinds of property that the government dedicated to public use because they happened to be privately owned. Doing so was not necessary to protect the property rights of their owners. In earlier cases, the Court had invoked the constitutional importance of private property rights to justify denying public forum status to privately owned shopping malls.[70] Treating privately owned malls as public forums would result, the Court argued, in “an unwarranted infringement of property rights” by requiring the mall owner to give up their right to exclude speakers from their property, even when those speakers possessed “adequate alternative avenues of communication.”[71] In this case, however, the conclusion that the public access channels were public forums would not require the cable companies to give up any property rights they previously possessed, even assuming that those who sought to use the public-access cable channels had adequate alternative means of communicating their message to the public (a by-no-means obvious assumption). This is because, unlike the shopping mall owners, the cable companies are already required by state law to provide rights of access to their property. Construing the public access channels as public forums would therefore do nothing more than vest with constitutional status the diminution in property rights that companies like Time Warner already agreed to when they signed franchise agreements with local governments that complied—as they had to—with the 1990 law. It would not take from them any property right they actually had the right to exercise.[72]

Nor would such a conclusion impede the ability of the cable companies to decide what kinds of speech to host, or not to host, on their property. In earlier cases, the Court had made clear that the First Amendment strongly protects the ability of property owners to make editorial decisions of this kind.[73] In this case, however, the cable companies had no editorial freedom to speak of—it was foreclosed to them by the 1990 law and by the franchise agreements they signed to operate in New York.[74] This meant that the only expressive interests at stake in the case were those of the plaintiffs and of speakers like them who wished to access the public access channels. Obviously, those interests would not be threatened were the Court to find that the public-access channel constituted a public forum. To the contrary: They would be better protected than they previously were, by allowing those who were improperly denied access to the channels to enforce their rights in federal court, as well as in the administrative proceedings that state law happened to provide (and that the state could take away at any moment). First Amendment interests—in particular, the strong First Amendment interest in protecting a “diverse and antagonistic” public sphere—thus supported the conclusion that the private property at issue in this case was a public forum, in marked contrast to earlier cases.[75]

Neither MNN’s property or speech interests would be threatened if it were treated as a state actor, nor would any of the interests the Court had invoked in recent decades to justify its narrow state-action rule. The Court had argued that construing the scope of state action narrowly helps “preserve an area of individual freedom by limiting the reach of federal law.”[76] It also “avoids imposing on the State, its agencies or officials, responsibility for conduct for which they cannot fairly be blamed.”[77]

In this case, however, treating MNN as a private actor would not “preserve an area of individual freedom.” This is because, as the previous paragraphs make clear, under New York law MNN possessed virtually no individual freedom to speak of when it came to deciding who could use the public access channels it managed. It was instead obligated, by both its contractual agreement with Time Warner and by New York law, to provide first-come, first-served access. Of course, MNN possessed some discretion in how it carried out these statutory and contractual duties. Its agreement with Time Warner specifically vested the corporation with the power to make reasonable rules and regulations for providing open and non-discriminatory access to the channels it managed.[78] But those rules and regulations served merely as the means to a government-mandated end that it was not within MNN’s power to reject or amend. This utterly distinguishes the facts of the case from earlier cases, such as Jackson and Blum—cases in which the Court concluded that the private entities were not state actors in large part because they furthered ends that were a product of private judgment and volition, not government mandate.[79]

Nor would denying MNN state-actor status prevent “the State, its agencies or officials [from being held] responsib[le] for conduct for which they cannot fairly be blamed.” As a practical matter, there was no chance that any state agency or officials would be held responsible for MNN’s conduct, no matter what the Court concluded about the constitutional status of the corporation. This is because, although the plaintiffs originally named New York City as a defendant in their suit, the district court dismissed the city from the case after finding that the plaintiffs had not alleged a sufficiently direct link between a municipal policy and MNN’s allegedly unconstitutional acts to render it liable under 42 U.S.C. § 1983, and the Second Circuit affirmed this portion of the district court decision.[80] The plaintiffs did not challenge this aspect of the lower courts’ rulings in their brief to the Court. As a result, the only entity that could be held responsible for MNN’s allegedly unconstitutional conduct was MNN.

Even assuming that the municipal defendants were still on the hook—or could be, in another case in which the municipal liability rules were somehow different—it is very difficult to see why it would be unfair to hold the city responsible for the unconstitutional conduct of an entity to whom it delegated a responsibility that was otherwise imposed on it by state law.[81] After all, had the Manhattan Borough President not vested MNN or some other private organization with the responsibility of managing the public access channels, that responsibility would have fallen on city officials, and the decisions those officials made in carrying out this responsibility would certainly have been considered state action under prevailing rules.[82] What then does it matter that in one case the wrongdoers are government employees and in the other case private citizens who act in its stead? In both cases, the wrongdoer exercises power “possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.”[83] Certainly the early twentieth century cases strongly suggest that we should be wary of any notion of fairness that allows government officials to too easily evade their constitutional non-discrimination obligations by handing off important government functions to private actors.[84]

The constitutional calculus therefore appeared in this case (and quite unusually, given the narrowness of contemporary state-action rules) to strongly support the conclusion that MNN was a state, not a private actor. Indeed, the only constitutional interest that pushed to any degree in the other direction was the constitutional interest in federalism. This is because recognizing MNN as a state actor would inevitably transfer power from state to federal institutions by divesting state agencies—in particular, New York’s Public Service Commission—of the exclusive authority they previously enjoyed to determine the legality of the corporation’s conduct.[85] The threat to federalist values was a relatively weak one, however. After all, the non-discrimination obligations that state law imposed on MNN were essentially the same as the non-discrimination obligations that the First Amendment imposed. By asking the federal courts to intervene, the Halleck plaintiffs were not therefore attempting to undermine the New York legislature’s decision to create a space for public expression on cable television that was open to all voices and viewpoints; they were merely trying to enforce that decision more effectively.

On the whole, then, both precedent and policy appeared to strongly support the conclusion that the public access channels in New York were a public forum, and that MNN was, for that reason, a state actor. And yet, despite this fact, the five conservative members of the Court unequivocally rejected the notion that MNN was a state actor. In the next Section, I explore the rather unsatisfying arguments Justice Kavanaugh made in his majority opinion to explain the majority’s holding, the dissent’s response, and the implications of the decision going forward.

III. The Opinion and Its Implications

In his majority opinion in Halleck, Justice Kavanaugh persuasively defended against an argument that the plaintiffs simply did not make. He argued that MNN could not be considered a state actor merely because it regulated speech on private property that had been opened up to public expressive activity because if it were, by implication, “all private property owners and private lessees who open their property for speech would be subject to First Amendment constraints and would lose the ability to exercise what they deem to be appropriate editorial discretion within that open forum.”[86] The result, Justice Kavanaugh argued, would be a less interesting and robust marketplace of ideas, not a richer one.[87] Hence, Justice Kavanaugh concluded, MNN should be understood, for constitutional purposes, to be a heavily regulated, but nevertheless private actor—just like the electrical utility in Jackson, or the nursing homes in Blum.[88]

Justice Kavanaugh is absolutely correct that an interpretation of the state-action requirement that imposed on every private property owner the same non-discrimination obligations imposed on the government when it regulates the public forum would undermine the vitality of the marketplace of ideas by preventing those who run websites, or host political events, or otherwise use their property to promote some ideas but not others, from doing so. The Court has long recognized, as Fred Schauer notes, that a “private person participates in [the marketplace of ideas] when he contributes the use of his property to the proponents of certain ideas; that is an act of advocacy as surely as if he were disseminating the ideas himself.”[89] Construing the state-action requirement to prevent all viewpoint discrimination in the use of private property would therefore, as Justice Kavanaugh argued, subvert seven decades or more of free speech jurisprudence, to bad effect.

But this, quite patently, is not the interpretation of the state-action requirement that the plaintiffs in Halleck were advocating for, or that recognizing MNN as a state actor required. The plaintiffs’ argument was a much narrower one: namely, that MNN was a state actor not just because it regulated speech on property that was open to some amount of public expressive activity. MNN was a state actor because it regulated speech on property that the government had opened to public expressive activity and opened to such a degree that the owner of that property lost virtually all ability to make editorial decisions about its use.[90]

As a result, a finding for the plaintiffs in the case would not require crafting a rule that imposed First Amendment non-discrimination obligations on all private property owners who opened their property up to others’ speech. It wouldn’t even require imposing First Amendment obligations on the private entities that manage public access cable television in the vast majority of states that do not deprive cable companies of all power to decide what can and cannot be broadcast on the public access channels they own. Certainly, the plaintiffs took pains in their brief to limit the implications of their argument to New York and to the tiny handful of other states that, like New York, prohibit those who own and operate public access channels from exercising any meaningful control over the content of those channels.[91] Nevertheless, at no point in his opinion did Justice Kavanaugh engage the narrow argument that the plaintiffs made. The closest he came was to insist that the mere fact that MNN was a heavily regulated entity did not transform it into a state actor under contemporary precedents.[92] True enough, but of course the plaintiffs were not arguing that MNN was a state actor because it was heavily regulated. They were arguing that MNN was a state actor because the ends it furthered were, unlike the electrical utility in Jackson, not its own.[93]

The fact that Justice Kavanaugh spent his entire opinion passionately defending against an argument that the plaintiffs did not make, and warning about consequences of the plaintiffs’ argument that were extremely unlikely to come to pass, makes it difficult to know why the majority actually rejected the argument that the plaintiffs did make. It is virtually impossible to believe that the majority simply misunderstood it. Both during oral argument and in their written briefs, the plaintiffs—to their credit, given the difficult doctrinal territory in which they operated—went to great lengths to make clear to the Court how narrow their state action argument actually was.[94]

One possible explanation for the majority’s total failure to engage with the argument that the plaintiffs did in fact make is that it simply did not believe that it could, or in practice, would, have as limited an impact as plaintiffs claimed. The majority may have simply disbelieved that a meaningful distinction either could or would be drawn in future cases between regulatory regimes like the one in New York, which require that those who regulate public access channels provide first-come, first-served access to members of the public, and regulatory regimes like the one in California, which grant the private bodies that regulate public access television significant editorial discretion.[95]

This explanation is far from satisfying, however, insofar as the distinction that the plaintiffs drew—between public access regulatory regimes that require first-come, first-served access and public access regulatory regimes that do not—seems pretty clear-cut and therefore easy for courts to manage. And if it were in fact worried about the slippery slope, the majority could have written an opinion that recognized MNN as a state actor in such a way as to make clear the limited reach of its holding. It did not. Instead, Justice Kavanaugh wrote, and the other members of the majority signed, an opinion that strongly suggests that public forums can never exist on property that is privately owned, except when the private entity that owns that property exercises the full panoply of municipal functions and, for that reason, stands in the shoes of the State.[96] This suggests that something deeper than a fear of the slippery slope must have been driving the majority. But what?

One possibility is that the Court failed to engage with the plaintiffs’ argument because of its underlying skepticism towards the doctrinal framework that the plaintiffs relied on when making that argument—namely, the traditional and exclusive government functions prong of the state-action test. As I noted in the previous Section, the test was invented in the early 1970s as a means of making sense of New Deal precedents such as Marsh v. Alabama that the Rehnquist Court did not want to overturn but that did not easily fit into its new state-action jurisprudence. Since then, the Court has recognized only one new traditional and exclusive governmental function—the use of a peremptory challenge by a private party in a civil suit—and that was quite a long time ago.[97] The current Supreme Court majority may simply not believe that private entities can ever be state actors except when they are directly controlled by or composed of government actors or, perhaps, exercise the “the full spectrum of municipal powers” like the corporation in Marsh. The majority may nevertheless have found it simpler, or more expedient, to reject the plaintiffs’ argument for failing to satisfy the traditional and exclusive governmental functions test than to have to revise the numerous opinions in which it had insisted that, yes, private entities can be state actors even when they are not directly connected to the government and even when they do not exercise the full spectrum of municipal powers, when they perform a function that is traditionally associated with sovereignty.

What the opinion in Halleck may reflect, in other words, is the majority’s exceedingly narrow view of what was already an exceedingly narrow state-action test and, underlying this, its very rigid and formalistic view of the public/private divide. If so, this is very much in keeping with the formalism that characterizes a great deal of the Roberts Court’s constitutional jurisprudence.[98]

Alternatively, the majority’s failure to pay any attention to the distinction the plaintiffs drew between public access channels in states like New York and public access channels in states like California may reflect its underlying skepticism towards the constitutionality of regulatory schemes like the one in New York. The Internet and Television Association of America (“NCTA”), the principle trade association for cable television companies in the United States, filed an amicus brief in Halleck in which they urged the Court to use the case as an opportunity to strike down, on free speech grounds, the New York statutory provisions that mandated that cable companies open a portion of their property up to public access.[99] NCTA argued that these laws violate the First Amendment rights of cable operators by requiring them to relinquish control over the expressive uses to which their property was put—indeed, by requiring them to “retransmit speech with which they may vehemently disagree.”[100] Essentially, the NCTA asked the Court to overrule its 1994 decision in Turner v. FCC, which Justice Kennedy authored and which upheld the constitutionality of a federal law that, like the New York law, required cable companies to devote a limited number of channels to expressive uses they did not control.[101]

The Court did not in fact end up ruling on the constitutionality of New York’s public access cable system. Its holding nevertheless preserved the possibility of a later, more squarely-presented challenge to the constitutionality of those regulations. A contrary holding—one that found that the public access channels in New York were a public forum, to which speakers had a constitutionally-protected right of access—would have largely foreclosed such a challenge, by validating the regulatory framework that created that public forum. One can therefore read Justice Kavanaugh’s stirring invocation in his opinion of the importance of preserving a “robust sphere of individual liberty” in which private persons are free to make choices for themselves as a paean to a freedom that under current New York law does not exist, but that the conservative majority on the Court might someday soon bring into being by preventing governments like New York from forcing private property owners that happen to own important sites of public expression from having to devote a portion of their property to non-discriminatory public use.[102] Either way, the opinion demonstrates, rather starkly, the Roberts Court’s tendency to value property over speech interests, even when those property interests are little more than formalities.

In her dissenting opinion, Justice Sotomayor attempted to appeal to the property-protective tendencies of the majority by arguing that, in this instance, there was no conflict between speech and property rights because under New York law the public access cable channels are not in fact solely the property of the cable companies. Instead, Justice Sotomayor argued, New York law creates a kind of public easement to the public access cable channels that vests the government with a significant property interest in their use.[103] The result, she claimed, was that even if one believes, as Justice Thomas argued in his Denver Area concurrence, that public forums can only exist on property over which the government “has taken a cognizable property interest,” the public access cable channels still qualified.[104]

This argument entirely failed to convince the five justices who joined the majority opinion, even if it was essentially the same argument that Justice Kennedy made in his concurring opinion in Denver Area.[105] The fact that the city lacked any “formal easement or other [recognized] property interest in [the cable access] channels,” meant, Justice Kavanaugh concluded, that the cable channels were private property and MNN a private actor.[106] Formalities mattered, in other words, to the majority, even if Justice Kavanaugh’s opinion did not bother to explain why.

In its unequivocal rejection of an argument that Justice Kennedy first made twenty years earlier, the opinion also provides powerful evidence that Justice Kavanaugh’s addition to the Court, and Justice Kennedy’s departure from it, will have a significant impact on the shape of the Court’s free speech jurisprudence. Indeed, it is very difficult to see how, were Justice Kennedy still on the Court, he would have agreed with the four other conservative members that MNN is not a state actor, given his opinion in Denver Area. It is exceedingly likely, in other words, that if Justice Kennedy were still on the Court, the opinion would have come out the other way.

As a practical matter, this fact is not terribly significant—except, of course, to the Halleck plaintiffs. Because the plaintiffs’ state-action argument was so narrow, even had the Court been persuaded that MNN was a state actor, it is unlikely that its decision would have impacted many other cases. How often, after all, do users of public access channels in New York—or Hawaii or Rhode Island or the very few other states that have a similar regulatory scheme to the one in New York—raise constitutional challenges to their regulation?

As evidence of the direction of the Court’s free speech jurisprudence, however, the Court’s decisive rejection of the argument that Justice Kennedy made in his Denver Area opinion is significant. What it suggests is that the Court’s tendency in recent years to conflate property and speech interests is only going to intensify now that the one member of the conservative majority who believed that free speech interests sometimes had to trump private property rights is no longer on the Court.

In this respect, it is worthwhile to compare Justice Kennedy’s majority opinion in Turner v. FCC to Justice Kavanaugh’s opinion in Halleck. In Turner, Justice Kennedy argued that a federal law that required cable operators to devote a portion of their channels to the transmission of local broadcast television was constitutional because it furthered important free speech interests. After noting that, in most locales, cable operators possess “bottleneck, or gatekeeper, control over most (if not all) of the television programming that is channeled into the subscriber’s home,” Kennedy asserted:

The potential for abuse of this private power over a central avenue of communication cannot be overlooked. The First Amendment's command that government not impede the freedom of speech does not disable the government from taking steps to ensure that private interests not restrict, through physical control of a critical pathway of communication, the free flow of information and ideas.[107]

Compare this to Justice Kavanaugh’s assertion, in the second-to-last paragraph of his opinion in Halleck that “[i]t is sometimes said that the bigger the government, the smaller the individual,” and that interpreting the state-action doctrine as plaintiffs argued it should be interpreted would only “expand governmental control while restricting individual liberty and private enterprise.” Justice Kennedy’s assessment reflects an awareness of the fact that “big government” can sometimes promote individual liberty, by restricting the abuse of private power. Justice Kavanaugh’s assertion, like the rest of his opinion in Halleck, quite plainly does not.

For those who believe that the First Amendment guarantees—to both the propertied and the propertyless alike—a right to participate in a public sphere that is genuinely diverse and inclusive, the gulf between Justice Kennedy’s opinion in Turner and Justice Kavanaugh’s opinion in Halleck should be deeply troubling. Certainly, the decision in Halleck should remind us all of how very far free speech jurisprudence has come from the days when the Court insisted that the constitutional rights “of press and religion . . . occupy a preferred position” when balanced against “the Constitutional rights of owners of property.”[108] These days, Halleck suggests, property interests occupy a preferred position when compared to speech interests, even when those rights are of the weakest, thinnest sort.

What this means is that, far from being the most speech-protective Court in history—or even in a generation—the protection that the Roberts Court provides to speech, unclothed from property, is paltry indeed. Halleck is a minor case, but its implications should be taken seriously.

Lakier is Assistant Professor of Law and Herbert and Marjorie Fried Teaching Scholar, The University of Chicago School of Law.

[1] Joel Gora, Free Speech Matters: The Roberts Court and the First Amendment, 25 J.L. & Pol'y 63, 64 (2016).

[2] See, e.g., Daniel J.H. Greenwood, First Amendment Imperialism, 1999 Utah L. Rev. 659, 659 (1999) (“The First Amendment threatens to swallow up all politics. . . . Increasingly, it acts as a bar to governmental action not just with regard to the issues of conscience and religious practice with which it began, but far into the realm of economic regulation we thought the courts had abandoned to the legislatures after the Lochner disaster.”); Amanda Shanor, The New Lochner, 2016 Wis. L. Rev. 133, 137 (2016) (“Courts’ growing protection of commercial speech threatens to revive a sort of Lochnerian constitutional economic deregulation embedded not in substantive due process but the First Amendment.”). The phrase “First Amendment expansionism” was coined by Leslie Kendrick. See Leslie Kendrick, First Amendment Expansionism, 56 Wm. & Mary L. Rev. 1199 (2015).

[3] See Genevieve Lakier, The Invention of Low-Value Speech, 128 Harv. L. Rev. 2166 (2015).

[4] See Genevieve Lakier, The First Amendment’s Real Lochner Problem, 87 U. Chi. L. Rev. (forthcoming); Genevieve Lakier, Imagining an Antisubordinating First Amendment, 118 Colum. L. Rev. 2117 (2018) [hereinafter Lakier, Antisubordinating First Amendment].

[5] For more discussion of this point see Timothy Zick, Speech and Spatial Tactics, 84 Tex. L. Rev. 581 (2006).

[6] See, e.g., Ariz. Free Enter. Club's Freedom Club PAC v. Bennett, 564 U.S. 721, 755 (2011); Buckley v. Valeo, 424 U.S. 1, 14 (1976); New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964).

[7] Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921 (2019).

[8] See id. at 1935 (Sotomayor, J., dissenting). A detailed history of the organization can be found in the Brief of the New York County Lawyers Association as Amicus Curiae in Support of Respondents, Halleck, 139 S. Ct. at 1921 (No. 17–1702), 2019 WL 913829.

[9] Halleck v. City of New York, 224 F. Supp. 3d 238, 239 (S.D.N.Y. 2016). The plaintiffs did not seek monetary damages because federal law precludes the award of any monetary damages in cases asserting constitutional violations “arising from the regulation of cable television.” Id. at 239 n.1.

[10] Id. at 247, aff'd in part, rev'd in part sub nom. Halleck v. Manhattan Cmty. Access Corp., 882 F.3d 300 (2d Cir. 2018), rev'd in part, 139 S. Ct. 1921 (2019).

[11] Halleck, 139 S. Ct. at 1934.

[12] Id. at 1930–31.

[13] Id. at 1931–33.

[14] Id. at 1930–31.

[15] Id. at 1931.

[16] Hudgens v. NLRB, 424 U.S. 507, 538 (1976) (Marshall, J., dissenting) (arguing that, when determining whether the First Amendment grants speakers a right of access “to streets, sidewalks and other public places, courts ought not to let the formalities of title put an end to analysis”).

[17] See Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 662 (1994) (upholding the constitutionality of a federal law that required cable operators to devote a certain number of channels to transmitting local broadcast stations after finding that it furthered important governmental interests by “(1) preserving the benefits of free, over-the-air local broadcast television, (2) promoting the widespread dissemination of information from a multiplicity of sources, and (3) promoting fair competition in the market for television programming”).

[18] Halleck, 139 S. Ct. at 1931 n.2 (noting that the question of to what “degree . . . the First Amendment protects private entities such as Time Warner or MNN from government legislation or regulation requiring those private entities to open their property for speech by others” is a “distinct question not raised here”).

[19] The Civil Rights Cases, 109 U.S. 3, 11 (1883).

[20] Id. at 17–18.

[21] See e.g., Erwin Chemerinsky, Rethinking State Action, 80 Nw. U. L. Rev. 503, 522 (1985).

[22] Burton v. Wilmington Parking Auth., 365 U.S. 715, 722 (1961).

[23] See, e.g., Barrows v. Jackson, 346 U.S. 249 (1953) (concluding that a court order of damages for the violation of a racially restrictive covenant constitutes state action); Shelley v. Kraemer, 334 U.S. 1, 19 (1948) (concluding that a court order enjoining the sale of a home because it violates the terms of a racially restrictive covenant is “state action . . . in the full and complete sense of the phrase” insofar as “but for the active intervention of the state courts, supported by the full panoply of state power, [the buyers] would have been free to occupy the properties in question without restraint”); Marsh v. Alabama, 326 U.S. 501 (1946) (assuming there to be state action when a court imposes criminal punishment on a speaker who attempts to distribute religious literature on the streets of a privately owned town contrary to the wishes of town management, in violation of a state trespass law).

[24] Pub. Utils. Comm'n of D.C. v. Pollak, 343 U.S. 451, 462 (1952) (finding there to be state action when a government agency investigated, and refused to do anything about, the allegedly harmful conduct of a private transport company); see also Adickes v. S. H. Kress & Co., 398 U.S. 144, 172 (1970) (concluding that a petitioner denied service in a restaurant because she was in a mixed-race group could make out a viable Fourteenth Amendment claim if she could show that local police enforced a custom of segregation by “intentionally tolerat[ing] violence or threats of violence directed towards those who violated the practice of segregating the races at restaurants”).

[25] Burton, 365 U.S. at 725.

[26] Evans v. Newton, 382 U.S. 296, 302 (1966).

[27] Id. at 299, 302; see also id. at 302.

[28] Id. at 302 (“Under the circumstances of this case, we cannot but conclude that the public character of this park requires that it be treated as a public institution subject to the command of the Fourteenth Amendment, regardless of who now has title under state law.”).

[29] Jackson v. Metro. Edison Co., 419 U.S. 345, 351 (1974).

[30] See Larry W. Yackle, The Burger Court, State Action, and Congressional Enforcement of the Civil War Amendments, 27 Ala. L. Rev. 479, 521–22 (1975) (noting that, for the Burger Court, it was not sufficient to show that “the state . . . has brought about or permitted conduct in circumstances that justify the invocation of constitutional limitations”; instead, one must have shown “that the private actor involved is the state for purposes of [F]ourteenth [A]mendment analysis”; and noting that this is “an exceedingly narrow construction [of the state action doctrine], especially in light of the development of the . . . doctrine over the last 3 decades”).

[31] Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass'n, 531 U.S. 288, 290, 299–00 (2001) (finding a “statewide association incorporated to regulate interscholastic athletic competition among public and private secondary schools” to be a state actor because eighty-four percent of its members are public schools, “represented by their officials acting in their official capacity” and because it is treated as a part of government by the state insofar as “ministerial employees [of the organization are considered] state employees” for retirement purposes, and state officials populate its board); Lebron v. Nat’l R.R. Passenger Corp., 513 U.S. 374, 398 (1995) (finding Amtrak to be a state actor because it was “established and organized under federal law for the very purpose of pursuing federal governmental objectives, [and operated] under the direction and control of federal governmental appointees” and in that respect as much a part of the federal government as “so-called independent regulatory agencies such as the Federal Communications Commission or the Securities Exchange Commission”); see also West v. Atkins, 487 U.S. 42, 54 (1988) (reaffirming that government employees are state actors for constitutional purposes).

[32] Tulsa Prof'l Collection Servs., Inc. v. Pope, 485 U.S. 478, 487 (1988) (finding state action when a probate court “pervasive[ly] and substantial[ly]” aided the enforcement of an allegedly unconstitutional procedure for informing creditors to a decedent’s estate about the timeline for filing claims); Lugar v. Edmondson Oil Co., 457 U.S. 922, 942 (1982) (finding the same in a case involving an allegedly unconstitutional deprivation of the due process right to a hearing).

[33] Edmonson v. Leesville Concrete Co., 500 U.S. 614, 626 (1991) (holding that the use of peremptory challenges by private litigants in civil suits constitutes state action because “[t]hough the motive of a peremptory challenge may be to protect a private interest, the objective of jury selection proceedings is to determine representation on a governmental body” and that when the government grants private parties the right to make peremptory challenges it therefore delegates to them a “traditional” and “critical” governmental function); see also Rendell-Baker v. Kohn, 457 U.S. 830, 842 (1982) (“[O]ur holdings have made clear that the relevant question is not simply whether a private group is serving a ‘public function.’ We have held that the question is whether the function performed has been ‘traditionally the exclusive prerogative of the State.’”) (quoting Jackson v. Metro. Edison Co., 419 U.S. 345, 353 (1974) (italics in the original)).

[34] Jackson, 419 U.S. at 345.

[35] Id. at 353, 358–59.

[36] Blum v. Yaretsky, 457 U.S. 991 (1982).

[37] Id. at 993.

[38] Id. at 1014–27 (Brennan J., dissenting).

[39] Id. at 1011–12.

[40] See Brief for Respondents at 58 n.24, Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921 (2019) (No. 17–1702), 2019 WL 259745.

[41] As MNN pointed out, the city did not fund MNN. Its funds were paid for by Time Warner, albeit in a deal that the Manhattan Borough President played a very active role in negotiating. Brief for Petitioners at 7–8, Halleck, 139 S. Ct. at 1921 (No. 17–1702), 2018 WL 6503534; see also Brief of the New York County Lawyers Ass’n as Amicus Curiae in Support of Respondents at 21–25, Halleck, 139 S. Ct. at 1921 (No. 17–1702), 2019 WL 913829.

[42] Plaintiffs did not allege that any government officials approved, or even knew about, MNN’s decision to deny them access to the public access channels until after the fact. Brief for Petitioners at 47–48, Halleck, 139 S. Ct. at 1921 (No. 17–1702), 2018 WL 6503534.

[43] Lloyd Corp. v. Tanner, 407 U.S. 551, 569 (1972) (asserting that a private company that owns and operates a company town “functions as a delegate of the State” because it “perform[s] the full spectrum of municipal powers and st[ands] in the shoes of the State”).

[44] Id.

[45] See generally Hardy Green, The Company Town: The Industrial Edens and Satanic Mills that Shaped the American Economy (2012); see also Marsh v. Alabama, 326 U.S. 501, 508 n.5 (1946) (noting that “[i]n the bituminous coal industry alone, approximately one-half of the miners in the United States lived in company-owned houses in the period from 1922–23.”).

[46] Halleck, 139 S. Ct. at 1929.

[47] See, e.g., Adam Winkler, Voters’ Rights and Parties’ Wrongs: Early Political Party Regulation in the State Courts, 1886–1915, 100 Colum. L. Rev. 873, 876–77 (2000).

[48] Samuel Issacharoff, Private Parties with Public Purposes: Political Parties, Associational Freedoms, and Partisan Competition, 101 Colum. L. Rev. 274, 282–83 (2001).

[49] See, e.g., Halleck, 139 S. Ct. at 1929; Jackson v. Metro. Edison Co., 419 U.S. 345, 352 (1974); Gallagher v. Neil Young Freedom Concert, 49 F.3d 1442, 1456 (10th Cir. 1995); Max v. Republican Comm. of Lancaster Cty., 587 F.3d 198, 200 (3d Cir. 2009).

[50] As I have noted elsewhere, by re-reading it as an example of the traditional prerogatives-of-government test, the Court has been able to significantly limit the precedential reach of its decision in Marsh v. Alabama, 326 U.S. 501 (1946), which struck down the conviction on state trespass grounds of a Jehovah’s Witness who attempted to hand out religious materials on the sidewalk of a company-owned town against the wishes of the town’s management. Lakier, Antisubordinating First Amendment, supra note 4, at 2140–43. The Court has similarly limited the reach of Smith v. Allwright, which found that the decision by the Democratic Party of Texas to deny African Americans the right to vote in the party primary constituted state action. On its face, the decision appears to stand for the broad proposition that when the state delegates an important public function to a private party, and subsequently “endorses, adopts, and enforces” the discriminatory choices it happens to make, the state action requirement is satisfied. Smith v. Allwright, 321 U.S. 649, 663–64 (1944). Today, however, it is generally cited for the much narrower proposition that when private political parties run primary elections, the Fourteenth Amendment applies. See, e.g., Halleck, 139 S. Ct. at 1929.

[51] This helps explain why cases that turn on this prong of the state-action test have tended to be so divisive. See, e.g., Edmonson v. Leesville Concrete Co., 500 U.S. 614, 640 (1991); S.F. Arts & Athletics, Inc. v. U.S. Olympic Comm., 483 U.S. 522, 549–52 (1987) (Brennan, J., dissenting); Rendell-Baker v. Kohn, 457 U.S. 830, 849–50 (1982) (Marshall, J., dissenting).

[52] N.Y. Comp. Codes R. & Regs. tit. 16, § 895.4.

[53] Brief for Respondents at 54–56, Halleck, 139 S. Ct. at 1921 (No. 17–1702), 2019 WL 259745.

[54] Marsh, 326 U.S. at 507 (holding that residents of a privately-owned town possess essentially the same First Amendment rights of access to its streets, sidewalks, and parks as do residents of a publicly owned town). But see Police Dep't of City of Chicago v. Mosley, 408 U.S. 92, 96 (1972) (assuming that it is the government that guarantees “equality of status in the field of ideas” by “afford[ing] all points of view an equal opportunity to be heard” in the public forum).

[55] Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45 (1983) (defining public forums to include property that has traditionally been used by the public for expressive purposes and “property which the state has opened up for use by the public as a place for expressive activity”).

[56] United Church of Christ v. Gateway Econ. Dev. Corp. of Greater Cleveland, 383 F.3d 449, 454–55 (6th Cir. 2004); Lee v. Katz, 276 F.3d 550, 555 (9th Cir. 2002); Pindak v. Dart, 125 F. Supp. 3d 720, 746 (N.D. Ill. 2015).

[57] Brief for Petitioners at 30, Halleck, 139 S. Ct. at 1921 (No. 17–1702), 2018 WL 6503534.

[58] See, e.g., Perry, 460 U.S. at 45 (defining designated public forums as “public property which the state has opened for use by the public”) (emphasis added).

[59] Hague v. Comm. For Indus. Org., 307 U.S. 496, 515–16 (1939) (plurality opinion) (“Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. . . . The privilege of a citizen of the United States to use the streets and parks for communication of views on national questions may be regulated in the interest of all; it is not absolute, but relative, and must be exercised in subordination to the general comfort and convenience, and in consonance with peace and good order; but it must not, in the guise of regulation, be abridged or denied.”) (emphasis added).

[60] Marsh v. Alabama, 326 U.S. 501, 507 (1946) (“We do not think it makes any significant constitutional difference as to the relationship between the rights of the owner and those of the public that here the State, instead of permitting the corporation to operate a highway, permitted it to use its property as a town . . . . Whether a corporation or a municipality owns or possesses the town the public in either case has an identical interest in the functioning of the community in such manner that the channels of communication remain free.”).

[61] Hague, 307 U.S. at 515 (plurality opinion).

[62] USPS v. Council of Greenburgh Civic Ass’ns, 453 U.S. 114, 129–30 (1981).

[63] Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S. 788, 801–05 (1985).

[64] Denver Area Edu. Telecomm. Consortium, Inc. v. FCC, 518 U.S. 727, 791–94 (1996) (Kennedy, J., concurring).

[65] Id. at 791.

[66] Id. at 794.

[67] Id. (“When property has been dedicated to public expressive activities, by tradition or government designation, access is protected by the First Amendment. Regulations of speech content in a designated public forum, whether of limited or unlimited character, are ‘subject to the highest scrutiny’ and ‘survive only if they are narrowly drawn to achieve a compelling state interest.’”) (quoting Int'l Soc’y for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 678 (1992)).

[68] Id. at 742 (plurality opinion) (“We . . . think it premature to . . . decid[e] . . . the extent to which private property can be designated a public forum.”).

[69] Id. at 827–31 (Thomas, J., concurring).

[70] Hudgens v. NLRB, 424 U.S. 507 (1976); Lloyd Corp., Ltd. v. Tanner, 407 U.S. 551 (1972).

[71] Lloyd Corp., 407 U.S. at 567.

[72] Justice White, who dissented from an earlier opinion in which the Court concluded that a privately owned shopping mall was a public forum, noted specifically that, had the relevant law required public right of access to the property—as it does in New York—his view of the constitutional status of the property might have changed for this reason. See Amalgamated Food Emps. Union Local 590 v. Logan Valley Plaza, Inc., 391 U.S. 308, 340 (1968) (White, J., dissenting).

[73] See, e.g., Wooley v. Maynard, 430 U.S. 705, 714 (1977); Miami Herald Publ’g Co. v. Tornillo, 418 U.S. 241, 258 (1974).

[74] N.Y. Comp. Codes R. & Regs. tit. 16, §§ 895.4(c)(4), (c)(8); see also id. at § 895.4(c)(3) (requiring the “entity responsible for administering and operating the public access channel [to] provide notice to the general public of the opportunity to use such channel . . . includ[ing] the name, address and telephone number of the entity to be contacted for use of the channel”).

[75] See Associated Press v. United States, 326 U.S. 1, 20 (1945) (noting that the “[First] Amendment rests on the assumption that the widest possible dissemination of information from diverse and antagonistic sources is essential to the welfare of the public” and concluding that “[f]reedom of the press from governmental interference under the First Amendment does not sanction repression of that freedom by private interests”).

[76] Brentwood Acad. v. Tenn. Secondary Sch. Athletic Ass'n, 531 U.S. 288, 295 (2001) (quoting Nat'l Collegiate Athletic Ass'n v. Tarkanian, 488 U.S. 179, 191 (1988)).

[77] Lugar v. Edmondson Oil Co., 457 U.S. 922, 936 (1982).

[78] See Grant and Use Agreement Between Time Warner Entertainment Company L.P. and Manhattan Community Access Corporation d/b/a Manhattan Neighborhood Network § 3.3.

[79] See Jackson v. Metro. Edison Co., 419 U.S. 345, 357 (1974) (concluding that the pro forma approval by the regulatory agency of the electrical utility’s decision to terminate service did not transform that decision into state action because, although the utility “exercise[d a] choice allowed by state law . . . the initiative c[a]me[] from it and not from the State”); Blum v. Yaretsky, 457 U.S. 991, 1008 (1982) (concluding that the transfer and discharge decisions made by the nursing homes were not state action because they “ultimately turn[ed] on medical judgments made by private parties according to professional standards that are not established by the State”).

[80] Halleck v. City of New York, 224 F. Supp. 3d 238, 242–43 (S.D.N.Y. 2016); Halleck v. Manhattan Cmty. Access Corp., 882 F.3d 300, 308 (2d Cir. 2018) (relying on Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978), to dismiss the city from the case).

[81] N.Y. Comp. Codes R. & Regs. tit. 16, §§ 895.4(c)(4), (c)(1) (imposing on the municipality the responsibility of designating the entity responsible for operating and administrating public access channels in its jurisdiction).

[82] See West v. Atkins, 487 U.S. 42, 49–50 (1988) (reaffirming that “state employment is generally sufficient to render the defendant a state actor” even when “he abuses the position given to him by the State”) (quoting Lugar v. Edmondson Oil Co., 457 U.S. 922, 935 n.18 (1982)).

[83] United States v. Classic, 313 U.S. 299, 326 (1941).

[84] See, e.g., Terry v. Adams, 345 U.S. 461, 469 (1953); Smith v. Allwright, 321 U.S. 649, 664 (1944).

[85] Brief for Petitioners at 59–60, Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct. 1921 (2019) (No. 17–1702), 2018 WL 6503534 (describing the role played by the Public Service Commission).

[86] Halleck, 139 S. Ct. at 1930–31.

[87] Id. at 1931 (“Private property owners and private lessees would face the unappetizing choice of allowing all comers or closing the platform altogether.”).

[88] Id. at 1932 (“This case closely parallels Jackson. Like the electric utility in Jackson, MNN is ‘a heavily regulated, privately owned’ entity. As in Jackson, the regulations do not transform the regulated private entity into a state actor.”) (citations omitted).

[89] Frederick F. Schauer, Hudgens v. NLRB and the Problem of State Action in First Amendment Adjudication, 61 Minn. L. Rev. 433, 449 (1977).

[90] Brief for Respondents at 30, Halleck, 139 S. Ct. at 1921 (No. 17–1702), 2019 WL 259745.

[91] Id. at 30–31 (identifying only Hawaii and Rhode Island as states that have “comparable first-come, first-served laws” and that consequently, like New York, “render [public access] channels public forums”).

[92] Halleck, 139 S. Ct. at 1932.

[93] Brief for Respondents at 36, Halleck, 139 S. Ct. at 1921 (No. 17–1702), 2019 WL 259745. (arguing that MNN’s job is to “administer[] a publicly-owned right to public access channels”).

[94] See e.g., Transcript of Oral Argument at 46–49, Halleck, 139 S. Ct. at 1921 (arguing that if MNN had “discretion so it can exercise editorial control, then it would not be [the administrator of] a public forum”); Brief for Respondents at 30–32, Halleck, 139 S. Ct. at 1921 (No. 17–1702), 2019 WL 259745 (making the same point).

[95] See Brief for Respondents at 31, Halleck, 139 S. Ct. at 1921 (No. 17–1702), 2019 WL 259745 (describing the California regime).

[96] This is what Justice Kavanaugh appears to have meant by “reaffirm[ing the] holding” in Hudgens v. NLRB.” Halleck, 139 S. Ct. at 1931. Hudgens did not hold that public forums could never exist on private property. It did hold, however, that First Amendment constraints could not apply to the owner of a shopping mall because the owner of the mall did not “perform[] the full spectrum of municipal powers” and for that reason “st[an]d in the shoes of the State.” Hudgens v. NLRB, 424 U.S. 507, 519 (1976) (quoting Lloyd Corp. v. Tanner, 407 U.S. 551, 569 (1972)). See also Halleck, 139 S. Ct. at 1930 (“[W]hen a private entity provides a forum for speech, the private entity is not ordinarily constrained by the First Amendment because the private entity is not a state actor . . . The Constitution does not disable private property owners and private lessees from exercising editorial discretion over speech and speakers on their property.”).

[97] Edmonson v. Leesville Concrete Co., 500 U.S. 614, 626 (1991). It is worth noting that Justice Scalia, Chief Justice Rehnquist, and Justice O’Connor dissented from the majority opinion in Edmonson because they did not believe that the exercise of a peremptory challenge was a traditional and exclusive government function. Id. at 640 (O’Connor, J., dissenting).

[98] For more discussion of Roberts Court formalism, see Ofer Raban, Between Formalism and Conservatism: The Resurgent Legal Formalism of the Roberts Court, 8 N.Y.U. J.L. & Liberty 343 (2014); Jean Galbraith, The Roberts Court and the Brink, 109 Am. Soc’y Int’l L. Proc. 46 (2015); Charles W. Rhodes, Public Employee Speech Rights Fall Prey to an Emerging Doctrinal Formalism, 15 Wm. & Mary Bill Rts J. 1173, 1204 (2007).

[99] Amicus Curiae Brief of NCTA In Support of Neither Party, Halleck, 139 S. Ct. at 1921 (No. 17–1702), 2018 WL 6650091.

[100] Id. at 3.

[101] Id. at 12–13 (arguing that changes in the nature of the media environment meant that the rationale the Court relied on in Turner “no longer applies”).

[102] Halleck, 139 S. Ct. at 1934.

[103] Id. at 1937–39 (Sotomayor, J., dissenting).

[104] Id. at 1939; Denver Area Educ. Telecomm. Consortium, Inc. v. FCC, 518 U.S. 727, 829 (1996) (Thomas, J., concurring).

[105] See Denver Area, 518 U.S. at 793–94 (Kennedy, J., concurring) (arguing that local governments have a property interest in public access channels akin to an easement and that “no particular formalities” are required to create an easement, and that public access channels can therefore be understood to involve “a local government’s dedication of its own property interest to speech by members of the public”). See Halleck, 139 S. Ct. at 1937 (Sotomayor, J., dissenting) (quoting copiously from Justice Kennedy’s opinion in Denver Area, 518 U.S at 793–94).

[106] Halleck, 139 S. Ct. at 1933.

[107] Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 656–57 (1994).

[108] Marsh v. Alabama, 326 U.S. 501, 509 (1946).