Updated:
February 14, 2019

Whether the private operator of a public access channel in New York City is a state actor, and therefore bound by the First Amendment, for the purpose of selecting and scheduling its broadcasts, where federal, state, and city laws and policies so strictly circumscribe its content decisions that all independent editorial judgment is displaced.

This case examines whether the government can evade constitutional constraints by privatizing government programs while simultaneously dictating the conduct of the ostensibly private actors carrying out the program.  Arising in the context of New York City’s public access television station, it requires the Supreme Court to distinguish between private action, which is protected by the First Amendment, and state action, which is constrained by the First Amendment.  Manhattan Community Access Corp. (Operator), a private nonprofit that operates New York’s public access channel, maintains that it is a private entity not subject to the First Amendment.  The Court of Appeals for the Second Circuit rejected this argument, holding that the public access TV channels in Manhattan are public forums, and that the First Amendment applies to the Operator as it was exercising authority to administer such a forum conferred on it by a senior government official. 

The ACLU, NYCLU, and the National Coalition Against Censorship filed an amicus brief arguing that the Operator is a state actor at least for purposes of deciding what content to broadcast, because state law essentially removes any private editorial discretion from the Operator, rendering its decisions in this realm attributable to the state. 

The combination of federal, state, and city laws and policies that govern compelled the creation of the public access channel, selected the Operator to run it, and established the rules for what content must be broadcast (all First Amendment protected content) and how it must schedule programming (on a first come, first served basis). Under these dictates, the Operator cannot rely on any independent criteria or otherwise exercise independent discretion when determining whether to broadcast particular content.

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