WASHINGTON (CN) – Claims of autonomy by the nonprofit operator of public-access television sparked derision Monday at the Supreme Court by a lawyer for one of the founders of the Nuyorican poetry movement.
Contesting his client’s TV suspension as a violation of the First Amendment, Mayer Brown attorney Paul Hughes called the ability to set a schedule roughly as meaningful as a school designating facilities hours for Boy Scout and Girl Scout troops.
“I think the critical feature here, which petitioners cannot dispute, is that MNN … cannot decline to run content that is protected by the First Amendment,” Hughes said, using an abbreviation for the Manhattan Neighborhood Network.
Hughes represents poet Jesus Melendez and producer DeeDee Halleck, whom MNN suspended from its airwaves in 2012 over a 25-minute video that it said included threatening content.
In the video, which more broadly accused MNN of forsaking community programming needs, Melendez discussed having to wait until those in power “get fired, or they retire, or someone kills them.”
Appealing a 2018 decision by the Second Circuit that found Melendez and Halleck have a First Amendment case, MNN insists that it cannot be held liable under the First Amendment because it is not a government entity.
“The purpose of the test is to determine whether private action falls into the very rare exception of conduct that is fairly attributable to the state,” said Michael de Leeuw, an attorney for MNN at Cozen O’Connor. “Now MNN is not a state actor under any of this court’s state action tests, and its conduct is therefore not fairly attributable to the state.”
MNN operates four public-access channels in Harlem and surrounding neighborhoods under a franchise agreement between Time Warner and the city. Programming on the four channels is laid out on a first-come, first-served basis, and the government generally does not have editorial control over what runs on the channels.
De Leeuw said this arrangement is not the same as others in which the government has designated a private company to control an otherwise public forum. MNN retains some editorial control over the channels, such as setting the time at which a program will air, and the government does not say how it should do its business.
He also said operating public-access channels is not a traditional government function and that upholding the Second Circuit’s decision would be a major change in how the court decides when private organizations must comply with the First Amendment.
Hughes argued meanwhile that a ruling in favor of MNN would allow governments to easily shield themselves from free-speech requirements.
The justices appeared split on who had the better of the argument.
Justice Sonia Sotomayor and some of her colleagues compared the public access arrangement to a city renting a theater and delegating a private company to administer its operation, with the requirement the theater be kept free and open to use on a first-come, first-served basis.
“If the city rents it, says this is how we’re going to use it, this is the way it’s going to be used, why do you need anything more?” Sotomayor asked. “What greater control do you need?”
Other justices, however, pressed Hughes on how a public access channel is the type of space the court has in the past ruled is a classic government function.
“I don’t understand why leasing or operating a public access channel is akin to one of these traditional public functions that are described in the cases,” Justice Brett Kavanaugh asked. “Help me with that.”