16‐4155‐cv Halleck v. Manhattan Community Access Corp., et al.

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

August Term 2016

Argued: June 19, 2017 Decided: February 9, 2018

Docket No. 16‐4155

‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ DEEDEE HALLECK, JESUS PAPOLETO MELENDEZ,

Plaintiffs‐Appellants,

v.

MANHATTAN COMMUNITY ACCESS CORPORATION, DANIEL COUGHLIN, JEANETTE SANTIAGO, CORY BRYCE, CITY OF NEW YORK,

Defendants‐Appellees. ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐ ‐

Before: NEWMAN, JACOBS, and LOHIER, Circuit Judges.

Appeal from the December 14, 2016, judgment of the District Court for the

Southern District of New York, (William H. Pauley III, District Judge), dismissing

for failure to state a valid claim allegations of First Amendment violations

against the City of New York and a private corporation and its employees

operating a public access television channel. See Halleck v. City of New York,

Supp. 3d 238 (S.D.N.Y. 2016). The Plaintiffs‐Appellants contend that a public

access channel is a public forum.

Affirmed as to the City of New York, reversed as to Manhattan

Community Access Corporation and its employees, and remanded.

Judge Lohier concurs with a separate opinion; Judge Jacobs concurs in part

and dissents in part with a separate opinion.

Robert T. Perry, Brooklyn, NY, for Plaintiffs‐ Appellants.

Michael B. de Leeuw, (Tamar S. Wise, on the brief), Cozen O’Connor, New York, NY, for Defendants‐Appellees Manhattan Community Access Corporation, Daniel Coughlin, Jeanette Santiago and Cory Bryce.

Scott N. Shorr, Asst. Corp. Counsel, New York, NY (Zachary W. Carter, Corp. Counsel of the City of New York, Claude S. Platton, Asst. Corp. Counsel, New York, NY, on the brief), for Defendant‐Appellee City of New York.

JON O. NEWMAN, Circuit Judge:

This appeal presents the issue of whether the First Amendment’s

limitation on governmental restriction of free speech applies, in the

circumstances of this case, to the operators of public access television channels.

2

More specifically, the main issue is whether the Amendment applies to

employees of a non‐profit corporation, designated by the Manhattan Borough

President to oversee public access TV channels, who are alleged to have

suspended individuals involved in public access TV programming from using

the corporation’s facilities. This issue arises on an appeal by Deedee Halleck and

Jesus Papoleto Melendez from the December 14, 2016, judgment of the District

Court for the Southern District of New York (William H. Pauley III, District

Judge). See Halleck v. City of New York,

(S.D.N.Y. 2016). The

judgment dismissed, for failure to state a valid claim, the Plaintiffs‐Appellants’

complaint against Manhattan Community Access Corporation (“MCAC”); three

of its employees, Daniel Coughlin, Jeanette Santiago, and Cory Bryce; and the

City of New York (the “City”). The complaint alleged violations of

; Article 1, Section 8 of the New York State Constitution; and Article 7 of the

New York State Public Officers Law.

We conclude that the public access TV channels in Manhattan are public

forums and that MCAC’s employees were sufficiently alleged to be state actors

taking action barred by the First Amendment to prevent dismissal of the claims

3

against MCAC and its employees, but not against the City. We therefore affirm

in part, reverse in part, and remand.

Background

Statutory, regulatory, and contractual framework. The Cable Communications

Policy Act of 1984 (the “Act”) has special provisions for two categories of cable

TV channels—leased channels and public, educational, or governmental

channels. “[T]o promote competition in the delivery of diverse sources of video

programming,”

(a), the Act requires cable system operators to

“designate channel capacity for commercial use by persons unaffiliated with the

operator,”

§ 532(b)(1). These are generally called “leased channels.” See Denver

Area Educational Telecommunications Consortium, Inc. v. FCC,

(1996) (“Denver Area”).

The Act also authorizes cable franchising authorities to require for

franchise renewal “that channel capacity be designated for public, educational,

or governmental use,”

(b), and to require “adequate assurance

that the cable operator will provide adequate public, educational, and

governmental access channel capacity, facilities, or financial support,”

§

541(a)(4)(B). These are what Justice Kennedy’s opinion in Denver Area called

4

“PEG access channels.”

. Public access channels, the P in PEG, are

“available at low or no cost to members of the public, often on a first‐come, first‐

served basis.”

.1

In New York, a Public Service Commission regulation requires a cable TV

system with a capacity for 36 or more channels to “designate . . . at least one full‐

time activated channel for public access use.”

(b)(1). The regulation defines a public access channel as a channel

“designated for noncommercial use by the public on a first‐come, first‐served,

nondiscriminatory basis.”

§ 895.4(a)(1).

The City awarded cable franchises for Manhattan to Time Warner

Entertainment Company, L.P. (“Time Warner”). First Amended Complaint

(“FAC”) ¶ 30. The franchise agreement for Northern Manhattan provides that

Time Warner will provide four public access channels. The agreement recites that

the Manhattan Borough President has designated a not‐for‐profit,

nonmembership corporation to serve as the Community Access Organization

Justice Kennedy further explained, “Under many franchises, educational 1

channels are controlled by local school systems, which use them to provide school information and educational programs. Governmental access channels are committed by the cable franchise to the local municipal government, which uses them to distribute information to constituents on public affairs.” Denver Area,

.

5

(“CAO”) for the borough “under whose jurisdiction the Public Access Channels

shall be placed for purposes of Article 8 of this Agreement,” which applies to

public, educational, and governmental services. That CAO is the Defendant‐

Appellee MCAC, known as Manhattan Neighborhood Network (“MNN”).

Allegations of First Amendment violations. Plaintiffs‐Appellants Deedee

Halleck and Jesus Papoleto Melendez alleged that MNN, three of its employees,

and the City violated their First Amendment rights by suspending them from

using MNN’s public access channels because of disapproval of the content of a

TV program that Halleck had submitted to MNN’s programming department for

airing on MNN’s public access channel. This claim is based on the following

factual allegations, which we accept as true for purposes of reviewing, de novo,

the dismissal of the complaint.

Both Halleck and Melendez have been involved in producing public access

programming in Manhattan. In July 2012, MNN held an event to mark the

opening of the El Barrio Firehouse Community Media Center (“El Barrio

Firehouse”). Halleck and Melendez stood outside, interviewing invitees. In

August or September 2012, Halleck submitted to MNN for airing on MNN’s

public access channels a video entitled “The 1% Visits the Barrio,” based on

6

video footage taken at the El Barrio Firehouse opening (the “1% video“). The 1%

video presented the Plaintiffs’ view that MNN was “more interested in pleasing

‘the 1%’ than addressing the community programming needs of those living in

East Harlem.” FAC ¶ 83. MNN aired the 1% video on public access channels in

October 2012.

In a letter dated October 11, 2012, defendant Jeanette Santiago, MNN’s

Programming Director, informed Halleck that she was suspended for three

months from airing programs over MNN’s public access channels. Santiago

stated that the 1% video violated MNN’s program content restrictions barring

“participation in harassment or aggravated threat toward staff and/or other

producers.” FAC ¶ 86.2 The Plaintiffs allege that Halleck was suspended because

the 1% video “presented the view that MNN was more interested in pleasing ‘the

1%’ than addressing the community programming needs of those living in East

Harlem.” FAC ¶ 97.

The letter quoted Melendez’s statement in the 1% video that “People of color 2

work in this building and I have to wait until people get fired, they retire or someone kills them so that I can come and have access to the facility here.” FAC ¶ 87. Santiago said the letter “incited violence and harassment towards staff and was in direct violation of MNN’s ‘zero tolerance on harassment.’”

7

In a letter dated August 1, 2013, defendant Daniel Coughlin, MNN’s

executive director, suspended Melendez indefinitely from all MNN services and

facilities. Coughlin claimed that at an encounter in July 2013 Melendez had

“pushed him over.” FAC ¶ 106. The Plaintiffs allege that Melendez was

suspended because of the views he expressed in the 1% video. In a letter dated

August 9, 2013, Coughlin suspended Halleck for one year from all MNN services

and facilities, claiming receipt of complaints about the 1% video. Although

Halleck’s suspension has ended, she cannot air the 1% video on any public access

channels in Manhattan. By letter dated April 24, 2015, defendant Cory Brice,3

MNN’s manager of production and facilitation, confirmed Melendez’s indefinite

suspension.

District Court opinion. With respect to the Plaintiffs’ First Amendment

claim against MNN, the District Court recognized that the claim, pursued under

, was viable only if MNN was a state actor because the First

Amendment limits only governmental action. Acknowledging that MNN was a

private entity, the Court first considered whether its actions might be subject to

the First Amendment because “‘[a]ctions of private entities can sometimes be

3 The name was misspelled “Bryce” in the FAC.

8

regarded as governmental action for constitutional purposes.’” Halleck,

(quoting Lebron v. National R.R. Passenger Corp.,

(1995)). The District Court noted that in Lebron the Supreme Court had stated that

“‘where . . . the Government creates a corporation by special law, for the

furtherance of governmental objectives, and retains for itself permanent

authority to appoint a majority of the directors of that corporation, the

corporation is part of the Government for purposes of the First Amendment.’”

(quoting Lebron,

). The District Court deemed Lebron inapplicable

because the Manhattan Borough President had authority to appoint only two of

the thirteen members of MNN’s board. See

The District Court then considered whether the First Amendment might

apply to MNN’s actions on the theory that a public access channel is a public

forum. See Perry Education Assn. v. Perry Local Educators’ Assn.,

(1983) (recognizing traditional and designated public forums). Judge Pauley

noted that Justices of the Supreme Court have taken different positions on the

public forum issue, see Halleck,

(citing opinions of Justices

Kennedy and Thomas with respect to public access channels and Justice Breyer

9

with respect to leased channels), as have courts of appeals and district courts

within the Second Circuit, see

at 244‐46.

Deeming the issue a “close call,”

, Judge Pauley ruled that a public

access channel is not a public forum for two reasons. First, he observed that

“‘[t]he ownership and operation of an entertainment facility are not powers

traditionally exclusively reserved to the State, nor are they functions of

sovereignty.’”

at 246 (citing Glendora v. Cablevision Systems Corp.,

(S.D.N.Y. 1995)). Second, he read our Court’s decision in Loce v. Time

Warner Entertainment Advance/Newhouse Partnership,

(2d Cir. 1999),

as “implicitly reject[ing] Plaintiffs’ argument that public access channels are

designated public fora because they are ‘required by government fiat.’” Halleck,

224 F. Supp. 3d. at 247 (quoting Plaintiffs’ opposition to motion to dismiss at 12).

The District Court dismissed the First Amendment claim against MNN (and

presumably its employees) for lack of state action.

With respect to the Plaintiffs’ First Amendment claim against the City, the

District Court noted that “‘Congress did not intend municipalities to be held

liable unless action pursuant to official municipal policy of some nature caused a

constitutional tort.’”

at 242 (quoting Monell v. Dept. of Social Services of City of

10

New York,

(1978)). In the absence of such a policy, the Court

dismissed the claim against the City because the Plaintiffs had alleged only that

the City was “‘aware tha[t] MNN has censored plaintiffs’ and other cable access

programming.’”

at 243 (quoting FAC ¶ 126).

With the federal claims dismissed, the District Court declined to exercise

pendent jurisdiction over the state law claims and granted the motion to dismiss

the complaint.

Discussion

I. First Amendment Claim Against MNN and Its Employees

Because MNN is a private corporation, the viability of the Plaintiffs’ First

Amendment claim against it and its employees depends on whether MNN’s

actions can be deemed state action. A nominally private entity can be a state

actor in several different circumstances. See Brentwood Academy v. Tennessee

Secondary School Athletic Assn.,

(2001) (outlining seven examples

of circumstances in which a private entity may be deemed a state actor).

Our consideration of whether the public access channels in the pending

appeal are public forums must begin with the Supreme Court’s decision in

Denver Area, a case that generated six opinions spanning 112 pages of the United

11

States Reports. The case concerned the constitutionality of three provisions of the

Cable Television Consumer Protection and Competition Act of 1992 (“1992 Act”),

Pub. L. No. 102‐385, §§ 10(a), 10(b), and 10(c),

, 1486 (codified at

(h), 532(j), and note following § 531). Sections 10(a) and 10(b) apply

to leased channels.4 Section 10(c) applies to public access channels, with which

we are concerned on this appeal. It requires the Federal Communications

Commission to promulgate regulations that permit a cable operator to prohibit

“any programming which contains obscene material, sexually explicit conduct,

or material soliciting or promoting unlawful conduct.” 1992 Act § 10(c).

The Supreme Court ruled section 10(a) constitutional, and sections 10(b)

and 10(c) unconstitutional. See Denver Area,

. With respect to

section 10(c), the only provision applicable to public access channels, the vote to

invalidate was five to four with the Justices issuing four opinions, summarized in

the margin.5

Section 10(a) permits a cable operator to prohibit “patently offensive” 4

programming. 1992 Act § 10(a). Section 10(b) requires the Federal Communications Commission to promulgate regulations that require cable operators to segregate “indecent” programming, place it on a single channel, and block access unless a viewer requests access. Id. § 10(b). 5 Justice Breyer, writing for himself and Justices Stevens and Souter, voted to

invalidate section 10(c) because “the Government cannot sustain its burden of showing

12

Pertinent to the pending appeal, five Justices expressed differing views on

whether public access channels were public forums. Justice Kennedy, with

whom Justice Ginsburg concurred, said, “A public access channel is a public

forum.” Id. at 783. He pointed out, “‘They provide groups and individuals who

generally have not had access to the electronic media with the opportunity to

become sources of information in the electronic marketplace of ideas.’” Id. at 791‐

92 (quoting H.R. Rep. No. 98‐934, at 30 (1984)). He further explained, “It is

important to understand that public access channels are public fora created by

local or state governments in the cable franchise,” id. at 792, and added, “[W]hen

a local government contracts to use private property for public expressive

activity, it creates a public forum,” id. at 794.

that § 10(c) is necessary to protect children or that it is appropriately tailored to secure that end.” Denver Area,

. Justice Kennedy, writing for himself and Justice Ginsburg, acknowledged that Congress has “a compelling interest in protecting children from indecent speech,” but voted to invalidate section 10(c) because it was not “narrowly tailored to serve a compelling interest.”

at 805‐06. Justice O’Connor voted to uphold section 10(c) on the ground that it was a “permissive,” sufficiently “tailored” provision that served “the well‐established compelling interest of protecting children from exposure to indecent material.

at 779 ‐80. Justice Thomas, writing for himself and Chief Justice Rehnquist and Justice Scalia, voted to uphold section 10(c) on the ground that the public access programmers could not challenge a scheme that restricted the free speech rights of cable operators.

.

13

On the other hand, Justice Thomas, with whom Chief Justice Rehnquist

and Justice Scalia concurred, said that a public access channel is not a public

forum. His reason: a public access channel is privately owned. See

at 826‐31.

That point precipitated an exchange between Justices Thomas and Kennedy as to

whether the relationship between the governmental franchising authority and

the operator of the cable system renders nominally private property, a public

access channel, a designated public forum.

Justice Thomas acknowledged the Supreme Court’s statement that “a

public forum may consist of ‘private property dedicated to public use.’”

at 827

(quoting Cornelius v. NAACP Legal Defense & Education Fund, Inc.,

(1985)). But, he pointed out, the quoted statement “refers to the common

practice of formally dedicating land for streets and parks when subdividing real

estate for developments.”

“Such dedications,” he continued, “at least create

enforceable public easements in the dedicated land.”

Thus, he concluded, “To

the extent that those easements create a property interest in the underlying land,

it is that government‐owned property interest that may be designated as a public

forum.”

.

14

In reply, Justice Kennedy explained, “[I]n return for granting cable

operators easements to use public rights‐of‐way for their cable lines, local

governments have bargained for a right to use cable lines for public access

channels. . . . [N]o particular formalities are necessary to create an easement. . . .

[W]hen a local government contracts to use private property for public

expressive activity, it creates a public forum.”

at 793‐94.

In Part II of Denver Area, Justice Breyer, with whom Justices Stevens,

O’Connor, and Souter concurred, explicitly declined to express a view as to

whether a public access channel is a public forum. See id. at 742 (“We therefore

think it premature to answer the broad questions that Justices Kennedy and

Thomas raise in their efforts to find a definitive analogy, deciding, for example,

the extent to which private property can be designated a public forum[.]”).6

In view of the statutory, regulatory, and contractual framework under

which this case arises and the purpose for which Congress authorized public

access channels, we are persuaded by the conclusion reached by Justices

Kennedy and Ginsburg. A public access channel is the electronic version of the

As to leased channels, Justice Breyer said, “[I]t is unnecessary, indeed, unwise, 6

for us definitively to decide whether or how to apply the public forum doctrine to [them].”

.

15

public square. Without determining whether a public access channel is

necessarily a public forum simply by virtue of its function in providing an

equivalent of the public square, we conclude that where, as here, federal law

authorizes setting aside channels for public access to be “the electronic

marketplace of ideas,” state regulation requires cable operators to provide at

least one public access channel, a municipal contract requires a cable operator to

provide four such channels, and a municipal official has designated a private

corporation to run those channels, those channels are public forums.7

Because facilities or locations deemed to be public forums are usually

operated by governments, determining that a particular facility or location is a

public forum usually suffices to render the challenged action taken there to be

state action subject to First Amendment limitations. See, e.g., Widmar v. Vincent,

, 265‐68 (1981) (regulation issued by state university Board of

Curators governing use of university buildings and grounds); City of Madison,

Joint School District No. 8 v. Wisconsin Employment Relations Comm’n,

,

169 76 (1976) (order issued by state employment commission governing

employee speech at public school board meeting). In the pending case, however,

7 We note that a State regulation permits the cable operator to prohibit obscenity or other content unprotected by the First Amendment. See N.Y. Com. Codes R. & Regs. tit. 16, § 895.4(c)(8).

16

the facilities deemed to be public forums are public access channels operated by

a private non‐profit corporation. In this situation, whether the First Amendment

applies to the individuals who have taken the challenged actions in a public

forum depends on whether they have a sufficient connection to governmental

authority to be deemed state actors. That connection is established in this case by

the fact that the Manhattan Borough President designated MNN to run the

public access channels. The employees of MNN are not interlopers in a public

forum; they are exercising precisely the authority to administer such a forum

conferred on them by a senior municipal official. Whether they have taken the

actions alleged and, if so, whether they have thereby violated First Amendment

limitations are matters that remain to be determined in further proceedings.

The non‐municipal defendants invoke our decision in Loce v. Time Warner

Entertainment Advance/Newhouse Partnership,

(2d Cir. 1999), to resist

application of First Amendment restrictions to their alleged conduct. However,

Loce neither ruled nor implied that a public access channel was not a public

forum. Loce concerned leased channels, not public access channels. The different

purposes for which Congress required leased channels and authorized

franchising authorities to require public access channels underscore why the

17

latter are public forums. Congress required leased channels in order “to promote

competition” with commercial channels “in the delivery of diverse sources of

video programming.”

(a). The explicit purpose of public access

channels was to give the public an enhanced opportunity to express its views. As

the relevant committee said, public access channels are “the video equivalent of

the speaker’s soap box or the electronic parallel to the printed leaflet.” H.R. Rep.

No. 98‐934, at 30 (1984). Leased channels concern economics. Public access

channels concern democracy.

We note that the defendant in Loce was Time Warner, the operator of a

cable system carrying the leased channel, not, as in this case, the entity operating

the public access channels. And, we noted in Loce, “The record offer[ed] no

evidence that Time Warner and the municipal franchising authorities jointly

administer leased access channels.”

. Although Time Warner, the cable

system operator, and the City do not jointly administer the public access

channels in the pending case, MNN administers those channels under explicit

authorization from a senior municipal official.

We acknowledge that other courts have not considered public access

channels to be public forums. In Alliance for Community Media v. FCC,

18

(D.C. Cir. 1995) (in banc), eight members of the eleven member in banc court

found “no state action . . . because that essential element cannot be supplied by

treating access channels as public forums.” Id. at 123. As pointed out above,

when that decision was reviewed and reversed in part by the Supreme Court in

Denver Area, two Justices (Kennedy and Ginsburg) explicitly disagreed with the

D.C. Circuit’s view about public access channels and four Justices (Stevens,

O’Connor, Souter, and Breyer) found it unnecessary to consider that view.8

Several District Courts have considered whether a public access channel is

a public forum and have reached conflicting results. Compare Egli v. Strimel, No.

14‐cv‐6204,

, at *4 (E.D. Pa. Aug. 28, 2015) (public forum);

Brennan v. Williams Paterson College,

(D.N.J. 2014) (public

forum plausibly alleged); Rhames v. City of Biddeford,

(D.

Me. 2002) (recognizing applicability of public forum analysis); Jersawitz v. People

TV,

(N.D. Ga. 1999) (public forum), with Morrone v. CSC

Holdings Corp.,

(E.D.N.Y. 2005) (not public forum);

Glendora v. Tele‐Communications, Inc., No. 96‐cv‐4270 (BSJ),

, at *3

In Wilcher v. City of Akron,

(6th Cir. 2007), the Sixth Circuit, without 8

deciding whether a public access channel might be deemed a public forum, ruled that the operator of a cable system carrying a public access channel was not a state actor.

19

(S.D.N.Y. Dec. 13, 1996) (same); Glendora v. Cablevision Systems Corp.,

(S.D.N.Y. 1995) (same); see also Glendora v. Hostetter,

(S.D.N.Y. 1996) (noting that two of the decisions cited above had ruled that

public access channels are not public forums).

With all respect to those courts that have expressed a view different from

ours, we agree with the view expressed by Justices Kennedy and Ginsburg in

Denver Area. Public access channels, authorized by Congress to be “the video

equivalent of the speaker’s soapbox” and operating under the municipal

authority given to MNN in this case, are public forums, and, in the circumstances

of this case, MNN and its employees are subject to First Amendment restrictions.

II. Municipal Liability

We agree with the District Court that the complaint does not allege actions

by the City that suffice to make it liable for the Plaintiffs’ federal claims.

Municipal liability under section 1983 arises when the challenged action was

taken pursuant to a municipal policy. See Monell, 436 U.S. at 691‐95. No such

policy has been alleged in this case, much less the required “direct causal link

between a municipal policy or custom and the alleged constitutional

deprivation,” City of Canton v. Harris,

(1989).

20

Conclusion

The judgment of the District Court is reversed as to MNN and its

employees, affirmed as to the City, and remanded for further proceedings.

21

LOHIER, Circuit Judge, concurring:

I fully agree with the majority opinion. I write separately to add only that

in the specific circumstances of this case we might also rely on the public

function test to conclude that MNN and its employees are state actors subject to

First Amendment restrictions when they regulate the public’s use of the public

access channels at issue here. “Under the public function test, state action may

be found in situations where an activity that traditionally has been the exclusive,

or near exclusive, function of the State has been contracted out to a private

entity.” Grogan v. Blooming Grove Volunteer Ambulance Corps,

,

264–65 (2d Cir. 2014) (quotation marks omitted). A private entity’s regulation of

speech in a public forum is a public function when the State has expressly

delegated the regulatory function to that entity. See, e.g., Lee v. Katz,

, 555–56 (9th Cir. 2002).

The dissent recognizes this established doctrine, Partial Dissent at 4‐5, but

maintains that MNN’s public access channels are not public forums because they

are merely “entertainment facilit[ies]” that, as such, do not involve a function

“traditionally exclusively reserved to the State,”

at 5 (quoting Halleck v. City

of New York,

(S.D.N.Y. 2016)). Other courts have this view. See, e.g., Wilcher v. City of Akron,

(6th Cir. 2007) (“TV

service is not a traditional service of local government.”).

But the distinction between entertainment and public speech is perilous as

a matter of constitutional law and in this case unfounded as a matter of fact.

“The Free Speech Clause exists principally to protect discourse on public

matters, but . . . it is difficult to distinguish politics from entertainment, and

dangerous to try.” Brown v. Entm’t Merchs. Ass’n,

(2011)

(Scalia, J.). “What is one man’s amusement, teaches another’s doctrine.”

(quoting Winters v. New York,

(1948)). Depending on one’s

point of view, political debates as far back as Lincoln and Douglas, rock concerts

in Central Park, see Ward v. Rock Against Racism,

, 790–91 (1989),

and the comedian’s late night television routine, see FCC v. Pacifica Found.,

, 744–47 (1978), might count as entertainment, or politics, or something in

between. So simply dismissing a public access channel as an “entertainment

facility” fails to remove it from the category of a public forum.

One look at MNN’s website reveals that MNN’s public access channels

largely offer “the video equivalent of the speaker’s soap box or the electronic

parallel to the printed leaflet.” Denver Area Educ. Telecomms. Consortium, Inc.

2

v. FCC,

(1996) (Kennedy, J., concurring in part, concurring in

the judgment in part, and dissenting in part) (quotation marks omitted). The

programming relates to political advocacy, cultural and community affairs, New

York elections, religion—in a word, democracy. See www.mnn.org/schedule

(last visited February 1, 2018); Majority Op. at 18; 23‐34 94th St. Grocery Corp. v.

New York City Bd. of Health,

, 183 n.7 (2d Cir. 2012) (taking judicial

notice of a website).

As the majority suggests without saying it outright, New York City

delegated to MNN the traditionally public function of administering and

regulating speech in the public forum of Manhattan’s public access channels.

For this reason, on this record, I agree that MNN and its employees are subject to

First Amendment restrictions.

3

JACOBS, Judge, concurring in part and dissenting in part:

I join the opinion of the Court in affirming the dismissal of the claims

against the municipal defendants: the complaint fails to allege actions by the city

that amount to “municipal policy.” Op. at 20; Monell, 436 U.S. at 691‐95. I

respectfully dissent because I would also affirm the dismissal of the claims

against Manhattan Community Action Corporation, otherwise known as

Manhattan Neighborhood Network (“MNN”). The controlling precedent is Loce

v. Time Warner Entertainment Advance/Newhouse Partnership,

(2d

Cir. 1999) (Kearse, J.), which ruled that a private corporation operating a

television station under a city franchise agreement and in accordance with

federal statute is not a state actor. The opinion of the Court wholly relies on a

distinction between the leased access channel at issue in Loce and the public

access channel at issue in this case. That tenuous distinction is unconvincing and

in any event unsupported by our First Amendment jurisprudence.

* * *

“[T]he United States Constitution regulates only the Government, not

private parties.” United States v. Int’l Bhd. Of Teamsters,

, 1295 (2d

Cir. 1991). “A plaintiff pressing a claim of violation of his constitutional rights”

1

under

is therefore “required to show state action.” Tancredi v.

Metro. Life Ins. Co.,

(2d Cir. 2003).

MNN is a private corporation. A private entity may become a state actor

only under the following limited conditions:

“(1) the entity acts pursuant to the ‘coercive power’ of the state or is ‘controlled’ by the state (‘the compulsion test’); (2) when the state provides ‘significant encouragement’ to the entity, the entity is a ‘willful participant in joint activity with the state,’ or the entityʹs functions are “entwined” with state policies (‘the joint action test’ or ‘close nexus test’); or (3) when the entity “has been delegated a public function by the state,” (‘the public function test’).”

Sybalski v. Independent Group Home Living Program, Inc.,

(2d

Cir. 2008)(citing Brentwood Acad. v. Tenn. Secondary Sch. Ath. Ass’n,

(2001)).

* * *

MNN cannot be cast as a state actor by application of the tests for

compulsion or joint action.

Compulsion. “Action taken by private entities with the mere approval or

acquiescence of the State is not state action.” Am. Mfrs. Mut. Ins. Co. v. Sullivan,

(1999). MNN’s designation in a franchise agreement and

regulation by a municipal commission do not in and of themselves demonstrate

2

that MNN is “controlled” or “compelled” by the state. See San Francisco Arts &

Athletics, Inc. v. United States Olympic Comm.,

, 543‐44 (1987)

(finding that granting of a corporate charter by Congress does not create state

action because “[e]ven extensive regulation by the government does not

transform the actions of the regulated entity into those of the government.”). To

allege compulsion, a plaintiff must show that the government compelled the

particular activity that allegedly caused the constitutional injury. See Sybalski,

546 F.3d at 257‐58. The amended complaint has no allegation of government

involvement in the appellants’ suspensions from which state action can be

inferred.

Joint Action. The “decisive factor” in entwinement analysis is the

“amount of control [the municipality] could potentially exercise over the [private

corporation’s] ‘internal management decisions’.” Grogan,

(internal citations omitted). A corporation thus becomes “part of the

Government for the purposes of the First Amendment” when the Government

retains “permanent authority to appoint a majority of the directors of that

corporation.” Lebron v. Nat’l R.R. Passenger Corp.,

(1999). The

city’s power of appointment is limited to two of MNN’s thirteen board members,

3

and is clearly insufficient to support a finding of state action. See Grogan,

. Nor do the statutory guidelines for cable access or the borough’s

oversight activities establish joint action between the Government and MNN.

ʺ[A] regulatory agency’s performance of routine oversight functions to ensure

that a company’s conduct complies with state law does not so entwine the

agency in corporate management as to constitute state action.” Tancredi,

; see also Sybalski, 546 F.3d at 258‐59.

* * *

This leaves the “public function” test as the only remaining vehicle by

which MNN’s activities may be considered state action. Judge Lohier’s

concurring opinion undertakes to establish state action under the “public

function” test.

A private entity performs a “public function” when its specific conduct at

issue in the complaint has historically been “an exclusive prerogative of the

sovereign.” Grogan v. Blooming Grove Volunteer Ambulance Corp.,

, 265‐67 (2d Cir. 2014) (internal quotation marks omitted). It is argued that

one such “traditional and exclusive public function” is “the regulation of free

speech in a public forum.” Halleck,

; cf. Hotel Emps. &

4

Restaurant Emps. Union, Local 100 v. N.Y.C. Dep’t of Parks & Recreation,

(2d Cir. 2002). That presents the question whether a public‐access

channel is a public forum. Contrary to the view expressed in Judge Lohier’s

opinion, it is not. That is because, as Judge Pauley observed, “[t]he ownership

and operation of an entertainment facility are not powers traditionally

exclusively reserved to the State, nor are they functions of sovereignty.” Id. at

246; see also Denver Area Educ. Telecommunications Consortium, Inc. v. F.C.C.,

(1996) (declining to “import” public forum doctrine into the

analysis of speech on cable access channels). And it is fortunate for our liberty

that it is not at all a near‐exclusive function of the state to provide the forums for

public expression, politics, information, or entertainment.

Consideration of MNN’s status as a state actor therefore requires an

examination of its function, guided by these principles. Instead, the opinion of

the Court proceeds as follows: private property leased by the Government for

public expressive activity creates a public forum, Op. at 16; a facility deemed to

be a public forum is usually operated by Government, id.; action taken at a

facility determined to be a public forum usually is state action, id. at 17; the First

Amendment applies to a person acting at such a facility if the person has a

5

sufficient connection to Government authority to constitute state action, id.; and

here, the Borough President’s designation of MNN to administer the public‐

access station is sufficient. The opinion of the Court thus drops a link: that the

private entity (MNN) performs a function that has been the exclusive (or near‐

exclusive) function of Government.

The appellants contend that MNN is a “state actor” under the public

function test because a public access channel is a public forum. This approach is

inconsistent with our Loce precedent that administering leased access channels

does not constitute state action. The holding in Loce applies with (at least) equal

analytical force to the administration of public‐access channels:

The fact that federal law requires a cable operator to maintain leased access channels and the fact that the cable franchise is granted by a local government are insufficient, either singly or in combination, to characterize the cable operator’s conduct of its business as state action. Nor does it suffice that cable operators, in their management of leased access channels, are subject to statutory and regulatory limitations.

. The salient distinction between leased access and public‐access

channels is that federal law requires leased‐access channels and merely

6

authorizes public‐access channels,

(a), 532(b)(1). So, if anything,

the Loce analysis applies to public‐access channels a fortiori.1

The opinion of the Court distinguishes Loce largely on the basis that there

is a fee for leased access whereas public‐access is free. That seems to be the

whole of it: “Leased channels concern economics. Public access channels concern

democracy.” Op. at 18; see also Concurring Op. at 3. But not every well‐turned

phrase is good law. The grant of access to facilities at no cost by non‐commercial

entities does not transform property into a public forum. Perry Educ. Ass’n v.

Perry Local Educators’ Ass’n,

(1983). Nor does a free, public

television broadcast constitute a public forum, even if it is directed by statute to

serve the “public interest.” See Arkansas Educ. Television Comm’n v. Forbes,

(1998).

We have not expressly applied Loce to the administration of public‐access

channels; but the Sixth Circuit has. In Wilcher v. City of Akron,

,

519‐21 (6th Cir. 2007), that court ruled that there was no state action, relying in

1 Judge Lohier’s observation that public speech blends into entertainment is valid, and increasingly so. I do not suggest otherwise. Our point of respectful disagreement is whether, under the public function test, the administration of a cable access channel (whatever its offerings) is a traditional prerogative of sovereignty. The balance of courts hold that it is not; and the Second Circuit in Loce is one of them. 7

part on Loce. While Wilcher did not discuss public forum doctrine, as the

concurring opinion concedes, Concurring Op. at 1‐2, its ruling that the

administration of public access channels was not a public function is an implicit

rejection of the theory advanced by Halleck and the opinion of the court.

.

As the Sixth Circuit concluded, the logic of Loce applies with equal force to

public‐access programming. Cable operators are equally obligated to provide

both “forums”: federal law requires them to set aside a portion of their capacity

for leased access,

(b)(1), and permits franchising authorities to

require (as the relevant one does) a similar set‐aside for public access,

§ 531(a).

And in both instances the operators are prohibited by law from exercising

editorial control, see id. §§ 532(c)(2), 531(e).

The D.C. Circuit reached the same result in Alliance for Community Media

v. F.C.C. (“ACM”),

(D.C. Cir. 1995). Sitting in banc, the D.C. Circuit

rejected a First Amendment challenge to portions of a federal statute (and its

implementing regulations) that permitted cable operators to block certain non‐

obscene programming on leased‐access and public‐access channels alike. It

reasoned in part that a public‐access channel is not a public forum. Id. at 121, 123

8

(rejecting the label of “public forum” and holding that cable access channels are

not “so dedicated to the public that the First Amendment confers a right to the

users to be free from any control by the owner of the cable system”); see also

Hudgens v. NLRB,

(1976) (finding the dedication of private

property as a public forum “attenuated,” “by no means” constitutionally

required, and untenable).

The in banc court also held that there was no state action under a

compulsion theory because the government did not coerce cable operators to act;

rather, the law authorized but did not require the prohibition of “indecent”

programming. Id. at 116 (“Rather than coerce cable operators, section 10 gives

them a choice.”), 118 (rejecting that mere “encouragement” by the Government

could amount to state action).

When that case was reversed in part and affirmed in part, sub nom.

Denver Area Educ. Telecommunications Consortium, Inc.,

, the

Supreme Court ruled on the constitutionality of the indecent language statute

and its implementing regulations without however deciding the issue presented

in our case: whether the administration of leased‐access and public‐access

programming by private entities constitutes state action. The chief concern of the

9

Supreme Court’s opinion—the censorship scheme that constituted the

Government action at issue, see 518 U.S. at 737—is absent here. The D.C.

Circuit’s in banc holding on the status of public access (set out below) was thus

left intact:

Petitioners think that by calling leased access and [public access] channels “public forums” they may avoid the state action problem and invoke the line of First Amendment decisions restricting governmental control of speakers because of the location of their speech. But a “public forum,” or even a “nonpublic forum,” in First Amendment parlance is government property. It is not, for instance, a bulletin board in a supermarket, devoted to the public’s use, or a page in a newspaper reserved for readers to exchange messages, or a privately owned and operated computer network available to all those willing to pay the subscription fee. The Supreme Court uses the “public forum” designation, or lack thereof, to judge “restrictions that the government seeks to place on the use of its property.” International Soc’y for Krishna Consciousness v. Lee,

(1992) (italics added). State action is present because the property is the government’s and the government is doing the restricting.

ACM, 56 F.3d at 121.

In its discussion of Denver Area, the opinion of the Court parses and

weighs the dicta of individual Justices on an issue that the Court did not disturb:

the D.C. Circuit’s holding that public forum analysis was inapplicable to leased

and public cable access channels. On that score, the D.C. Circuit’s holding is

consonant with the approach to cable access channels in the Second and Sixth

10

Circuits. Moreover, the exchanges among the various Supreme Court opinions

adumbrate support for that holding rather than otherwise.

As the opinion of the Court observes, Justice Kennedy, writing for himself

and one other Justice, would have held that a public‐access channel is a public

forum. But three justices would have held that they are not. Four justices in the

plurality observed that it was “unnecessary, indeed, unwise” to decide the

question; but one reason they adduced for avoiding the question is suggestive:

“[I]t is not at all clear that the public forum doctrine should be imported

wholesale into the area of common carriage regulation.”

. If I

made my living construing tea‐leaves, I would say that a majority of Justices

teetered in favor of the D.C. Circuit’s holding. But the insights gleaned from the

dicta of the various Justices are tentative and indirect, take no account of

intervening changes in the Courtʹs composition, and are wholly unreliable as

support for any analysis that should decide this appeal.

At least four district judges in this circuit have taken up this issue, three of

them in unrelated cases brought by a single busy pro se litigant. In Glendora v.

Cablevision Systems Corp.,

(S.D.N.Y. 1995), Judge Brieant

agreed with the ACM opinion of the District of Columbia Circuit,

;

11

described the “two general approaches . . . to determine whether seemingly

private action is in fact state action,”

at 269 (quoting Jensen v. Farrell Lines,

Inc.,

(2d Cir. 1980)); and ruled that neither the “state‐function

approach” nor the “symbiotic relationship” approach supported state action in

the administration of public‐access programming.

at 269‐70. In Glendora v.

Hostetter,

(S.D.N.Y. 1996), then‐ District Judge Parker denied a

preliminary injunction in part because he was “not persuaded at this time that

Glendora’s constitutional rights are implicated,” citing ACM and Judge Brieant’s

opinion on state action,

. In Glendora v. Tele‐Communications, Inc.,

(S.D.N.Y. 1996), Judge Jones cited and (in substance) replicated

the analysis in Judge Brieant’s opinion, and dismissed the complaint. In

Morrone v. CSC Holdings Corp.,

(E.D.N.Y. 2005), Judge Spatt

denied a motion for a preliminary injunction in part because “it is clear that” the

cable provider “is not a state actor” and “courts have routinely held that public

access channels are not First Amendment ‘public forums’ for the purposes of state

action,” citing ACM, Judge Brieant’s opinion, and Judge Parker’s opinion.

(emphasis added).

12

Loce, which in my view controls, was issued after ACM and Denver Area,

and after the cases of Glendora, Glendora and Glendora.

* * *

A ruling in favor of MNN will be consistent with our precedent in Loce.

The majority conclusion that MNN is a state actor opens a split with the Sixth

Circuit; considerably worse, it opens a split with the Second Circuit.

13