In its June 17 decision in Manhattan Community Access Corporation v. Halleck, the Supreme Court held, in another 5-4 split, that the public access channels on Time Warner's cable system in Manhattan do not constitute a "public forum" for free speech purposes. Therefore, the Manhattan Community Access Corporation, known as MNN, a private nonprofit corporation, did not violate the First Amendment when it denied access to the channels, based on the content of the programming, to two program producers. This is true even though New York City selected MNN to operate the public access channels on Time Warner's system and the city regulated various aspects of MNN's operation of the channels.
In an age when many people think – or at least proclaim – that they have a "right" under the First Amendment to say anything, anywhere, anytime, Justice Brett Kavanaugh's opinion for the majority explicating fundamental principles of First Amendment jurisprudence should be required reading. Surely, it's rare for a day to pass, in this age of overheated politics and overblown political correctness, without someone expressing outrage because their right to "free speech" supposedly has been violated. Maybe they have been banned from Facebook or Twitter, or just had a post removed. Or had a video removed from YouTube. Or had a proffered program rejected by the local public access channel.
Okay. I'll grant that the disappointed individuals or entities may be upset. And they may even have good cause to be upset, depending on the reasons given for the denial of their wish to speak in their chosen venue.
But that doesn't mean they have a valid First Amendment free speech claim. Indeed, Justice Kavanaugh's opinion does a superb job in explaining why they don't. Here I am going to let the opinion do most of the work by quoting a few key parts expounding fundamental First Amendment principles that transcend the particulars of the MNN case:
"The Free Speech Clause of the First Amendment constrains governmental actors and protects private actors. To draw the line between governmental and private, this Court applies what is known as the state-action doctrine. Under that doctrine, as relevant here, a private entity may be considered a state actor when it exercises a function 'traditionally exclusively reserved to the State.'"
"The text and original meaning of those [First and Fourteenth] Amendments, as well as this Court’s longstanding precedents, establish that the Free Speech Clause prohibits only governmental abridgment of speech. The Free Speech Clause does not prohibit private abridgment of speech."
"By enforcing that constitutional boundary between the governmental and the private, the state-action doctrine protects a robust sphere of individual liberty."
"Under the Court’s cases, a private entity may qualify as a state actor when it exercises 'powers traditionally exclusively reserved to the State.' Jackson, 419 U. S., at 352. It is not enough that the federal, state, or local government exercised the function in the past, or still does. And it is not enough that the function serves the public good or the public interest in some way. Rather, to qualify as a traditional, exclusive public function within the meaning of our state-action precedents, the government must have traditionally and exclusively performed the function."
"[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 private entity may thus exercise editorial discretion over the speech and speakers in the forum."
Now, the dissent vigorously contested Justice Kavanaugh's conclusion that MNN is a private entity and not a state actor. Given the factual context – MNN's designation by New York to operate the public access channels that the city obtained under a New York state law and the government's regulation of certain aspects of their operation – the contention that MNN's programming decisions amounted to government action was not frivolous, although I think Justice Kavanaugh has the better of the argument. But I don't want to delve more deeply into the "state action" question here.
Rather I want to emphasize that the next time you hear someone complain that their First Amendment rights have been trampled upon – and I guarantee you it will be soon – before jumping to their defense, consider the parameters within which the First Amendment operates.
Remember Justice Kavanaugh's admonition: "The text and original meaning of those [First and Fourteenth] Amendments, as well as this Court’s longstanding precedents, establish that the Free Speech Clause prohibits only governmental abridgment of speech. The Free Speech Clause does not prohibit private abridgment of speech."
This is what I call a foundational first principle.
Posts
