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Title : The Supreme Court rules that the cable company's public access channel is not a state actor.
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The Supreme Court rules that the cable company's public access channel is not a state actor.

Here's Manhattan Community Access Corp. v. Halleck, released moments ago. It's 5-4, written by Justice Kavanaugh, and the split is where you'll guess without looking.

From SCOTUSblog:

This was a case in which the public-access channel was sued after it suspended two people who produced a film that was critical of the channel from access to the channel's facilities and services.

Justice Kavanaugh emphasizes that the First Amendment's prohibitions apply only to state (governmental) actors and concludes that the threshold requirement of state action is missing here.

Kavanaugh writes that the producers' main argument is that the channel was exercising a "traditional, exclusive public function when it operates the public access channels on Time Warner's cable system in Manhattan." "We disagree," he says.

At first blush, it is the opposite lineup some might expect -- the conservatives finding that the First Amendment has no application, with the liberals voting the other way -- given talk about conservatives "weaponizing" the First Amendment to limit control regulation of communications businesses. (On the other hand, the end result here is limiting suits against a communications enterprise).

From the end of the majority opinion:

MNN is a private entity that operates public access channels on a cable system. Operating public access channels on a cable system is not a traditional, exclusive public function. A private entity such as MNN who opens its property for speech by others is not transformed by that fact alone into a state actor.

From Justice Sotomayor's dissenting opinion (joined by Ginsburg, Breyer, and Kagan):

The majority is surely correct that “when a private entity provides a forum for speech, the private entity is not ordinarily constrained by the First Amendment.” That is because the majority is not talking about constitutional forums—it is talking about spaces where private entities have simply invited others to come speak. A comedy club can decide to open its doors as wide as it wants, but it cannot appoint itself as a government agent. The difference is between providing a service of one’s own accord and being asked by the government to administer a constitutional responsibility (indeed, here, existing to do so) on the government’s behalf.

To see more clearly the difference between the cases on which the majority fixates and the present case, leave aside the majority’s private comedy club. Imagine instead that a state college runs a comedy showcase each year, renting out a local theater and, pursuant to state regulations mandating open access to certain kinds of student activities, allowing students to sign up to perform on a first-come, first-served basis. Cf. Rosenberger v. Rector and Visitors of Univ. of Va., 515 U. S. 819 (1995). After a few years, the college decides that it is tired of running the show, so it hires a performing-arts nonprofit to do the job. The nonprofit prefers humor that makes fun of a certain political party, so it allows only student acts that share its views to participate. Does the majority believe that the nonprofit is indistinguishable, for purposes of state action, from a private comedy club opened by local entrepreneurs?

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