NEW YORK (CN) – The Second Circuit revived free-speech claims Friday by an East Harlem poet who was barred from the studio of a public-access television corporation.
“A public access channel is the electronic version of the public square,” U.S. Circuit Judge Jon Newman wrote for a divided three-judge panel. “The employees of [the Manhattan Neighborhood Network] 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.”
Jesus Papoleto Melendez, the plaintiff, is one of the founding poets of the Nuyorican poetry movement, which gives voice to the experiences of Puerto Rican New Yorkers and dates back to the 1960s.
Melendez and media activist Dee Dee Halleck mounted their appeal in December 2016 after U.S. District Judge William H. Pauley III dismissed their First Amendment claims against the Manhattan Community Access Corporation, three of its employees and New York City.
But the Second Circuit panel saw the issue differently. “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 against MCAC and its employees,” Newman wrote in a 21-page opinion.
U.S. Circuit Judge Raymond Lohier concurred in a separate opinion. “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.”
“My clients are very pleased and very grateful that the Second Circuit has recognized that the cable public access channels in Manhattan are a public forum and that Manhattan Community Access Corporation (MNN) is a state actor in operating those channels,” plaintiffs’ attorney Robert Perry said in a phone interview. “This ruling vindicates the free speech rights of cable public access producers not only here in Manhattan but possibly also elsewhere.”
Melendez and Halleck claimed that they were suspended from the public access network because it disapproved of the content of a program they submitted titled, “The 1% Visits the Barrio.”
“The 1% Visits the Barrio” shows footage shot outside the Manhattan Neighborhood Network’s 2012 event celebrating the opening of the El Barrio Firehouse Community Media Center.
The video sought to demonstrate that the public access network was “more interested in pleasing ‘the 1%’ than addressing the community programming needs of those living in East Harlem,” according to Melendez and Halleck.
Barred from entering the event, Halleck filmed Melendez criticizing the organization for embracing outsiders while it shut out longtime residents of the gentrifying neighborhood.
In the video, an agitated Melendez greeted “the 1%” – comprised of architects, contractors and members of the New York City Economic Development Corporation responsible for the renovated El Barrio Firehouse Community Media Center – as they arrived to the event.
At one point, Melendez nearly comes to blows with writer Jose Angel Figueroa, who Melendez later said was dating El Barrio Firehouse Community Media Center director Iris Morales.
U.S. Circuit Judge Dennis Jacobs disagreed with the panel’s majority opinion that the television network should be considered a state actor.
“The grant of access to facilities at no cost by non‐commercial entities does not transform property into a public forum,” Jacobs wrote in his 13-page dissent.
MNN’s attorney, Michael B. de Leeuw at Manhattan firm Cozen O’Connor, said by phone that Friday’s decision was a “purely legal issue” that was not a finding of any wrongdoing by employees at MNN. He added that the “dissent got it right,” and said the network will be considering various options moving forward.
The Second Circuit upheld the dismissal of claims against the city and remanded the case for further proceedings.