First Amendment

Kavanaugh decision rejects First Amendment claim against public access channel

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The U.S. Supreme Court ruled 5-4 Monday against two producers who argued that a public access TV channel violated their First Amendment rights when it stopped airing their video.

Justice Brett M. Kavanaugh wrote the majority opinion. He was joined by Chief Justice John G. Roberts Jr. and Justices Clarence Thomas, Samuel A. Alito Jr. and Neil M. Gorsuch.

The majority ruled that the private operator of public access channels on Time Warner’s cable system in Manhattan was not a state actor subject to the First Amendment. The operator was Manhattan Neighborhood Network, known as MNN.

New York law had required cable systems to set aside some channels for neighborhood access. New York City designated MNN to operate the public access channels. MNN said it stopped airing the video because of harassing and threatening language directed at MNN staff.

A broad, contrary ruling could have had implications for the internet, according to amicus briefs filed in the case. If the Supreme Court had deemed MNN to be a state actor, internet search engines and social media sites might not be able to exercise editorial judgment to take down offensive content, the Internet Association argued. Reuters had coverage of the briefs.

The producers had argued that MNN could be liable because it exercised a traditional public function when it operated the channels. Kavanaugh said that wasn’t enough. “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,” Kavanaugh said.

Nor does being regulated by the state transform MNN into a state actor, Kavanaugh said.

Kavanaugh added that MNN is subject to state-law constraints on its exercise of editorial discretion, and it “could perhaps face state-law sanctions or liability of some kind.” He also noted that this is not a case in which a local government is operating a cable access channel.

Justice Sonia Sotomayor wrote the dissenting opinion, joined by Justices Ruth Bader Ginsburg, Stephen G. Breyer and Elena Kagan.

Sotomayor argued that MNN “stepped into the city’s shoes and thus qualifies as a state actor, subject to the First Amendment like any other.”

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