Amicus Curiae Brief — Manhattan Community Access Corporation, et al., Petitioners v. DeeDee Halleck, et al.

No. 17-1702

IN THE

Supreme Court of the United States

MANHATTAN COMMUNITY ACCESS

CORPORATION, DANIEL COUGHLIN,

JEANETTE SANTIAGO, CORY BRYCE,

Petitioners,

v.

DEEDEE HALLECK, JESUS PAPOLETO

MELENDEZ,

Respondents.

On Writ of Certiorari

to the United States Court of Appeals for the

Second Circuit

BRIEF OF INTERNET ASSOCIATION AS AMICUS

CURIAE IN SUPPORT OF NEITHER PARTY

CHAD GOLDER

Counsel of Record

LAUREN E. ROSS

MUNGER, TOLLES & OLSON LLP

1155 F Street NW, 7th Floor

Washington, DC 20004

(202) 220-1100

Chad.Golder@mto.com

i

TABLE OF CONTENTS

PAGE

INTERESTS OF AMICUS CURIAE.......................... 1

I.

INTRODUCTION ............................................ 2

II.

THERE IS AN EXCEEDINGLY HIGH BAR

FOR SUBJECTING PRIVATE ACTORS TO

CONSTITUTIONAL SCRUTINY.................... 6

III.

A.

Public Forum Analysis is Almost Never

Appropriate When Applied to Private

Property ................................................. 6

B.

“Public Function” Analysis Also Sets a

High Standard ....................................... 9

THERE ARE SERIOUS ADVERSE

CONSEQUENCE TO TREATING INTERNET

COMPANIES AS STATE ACTORS .............. 15

A.

An Unintentionally Broad Ruling That

Treats Private Companies as State

Actors Would Transform the Modern

Internet ................................................ 15

B.

A Determination That Private Internet

Companies Are State Actors Would

Violate Those Actors’ First Amendment

Rights ................................................... 19

IV.

ANY RULING IN THIS CASE SHOULD BE

AN EXCEEDINGLY NARROW ONE,

INFORMED BY THE LEGAL PRINCIPLES

AND PRACTICAL CONSEQUENCES SET

FORTH ABOVE ............................................. 21

V.

CONCLUSION ............................................... 24

ii

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PAGE(S)

FEDERAL CASES

Amalgamated Food Emp. Union Local

590 v. Logan Valley Plaza, Inc.,

391 U.S. 308 (1968) ........................................ 11, 13

Arkansas Educ. Television Comm’n v.

Forbes,

523 U.S. 666 (1998) ................................................ 9

Askins v. U.S. Dep’t of Homeland Sec.,

899 F.3d 1035 (9th Cir. 2018) .............................. 21

Brandenburg v. Ohio,

395 U.S. 444 (1969) .............................................. 16

Brentwood Academy v. Tennessee

Secondary School Athletic Ass’n,

531 U.S. 288 (2001) .............................................. 14

Brown v. Entm’t Merchants Ass’n,

564 U.S. 786 (2011) ................................................ 4

Central Hardware Co. v. NLRB,

407 U.S. 539 (1972) .............................................. 12

Chaplinsky v. New Hampshire,

315 U.S. 568 (1942) .............................................. 16

Christian Legal Soc’y Chapter of the

Univ. of Cal, Hastings College of the

Law v. Martinez,

561 U.S. 661 (2010) .......................................... 6, 14

iii

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PAGE(S)

Cohen v. California,

403 U.S. 15 (1971) ................................................ 16

Comite de Jornaleros de Redondo Beach

v. City of Redondo Beach,

657 F.3d 936 (9th Cir. 2011) .................................. 7

Cornelius v. NAACP Legal Defense and

Education Fund, Inc.,

473 U.S. 788 (1985) ............................................ 7, 8

Denver Area Educ. Telecomms.

Consortium, Inc. v. FCC,

518 U.S. 727 (1996) .................................... 4, 6, 7, 8

Doe v. Cuomo,

No. 10-CV-1534, 2013 WL 1213174

(N.D.N.Y. Feb. 25, 2013) ........................................ 5

Erznoznik v. Jacksonville,

422 U.S. 205 (1975) .............................................. 16

Evans v. Newton,

382 U.S. 296 (1966) .............................................. 13

Flagg Bros., Inc. v. Brooks,

436 U.S. 149 (1978) .......................................passim

Forbes v. Facebook, Inc.,

No. 16 CV 404 (AMD), 2016 WL

676396 (E.D.N.Y. Feb. 18, 2016)............................ 5

iv

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PAGE(S)

Gonzalez-Maldonado v. MMM

Healthcare, Inc.,

693 F.3d 244 (1st Cir. 2012) ................................. 14

Green v. America Online (AOL),

318 F.3d 465 (3d Cir. 2003) .................................... 5

Grogan v. Blooming Grove Volunteer

Ambulance Corps,

768 F.3d 259 (2d Cir. 2014) .................................. 10

Halleck v. City of NY,

224 F. Supp. 3d 238 (S.D.N.Y. Dec.

13, 2016).......................................................... 19, 22

Halleck v. Manhattan Community

Access Corp.,

882 F.3d 300 (2d Cir. 2018) ...........................passim

Hallinan v. Fraternal Order of Police of

Chicago Lodge No. 7,

570 F.3d 811 (7th Cir. 2009) ................................ 14

Howard v. America Online Inc.,

208 F.3d 741 (9th Cir. 2000) .................................. 5

Hurley v. Irish-American Gay, Lesbian

and Bisexual Group of Boston,

515 U.S. 557 (1995) ........................................ 20, 21

Int’l Soc’y for Krishna Consciousness,

Inc. v. Lee,

505 U.S. 672 (1992) ................................................ 7

v

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PAGE(S)

Jackson v. Metropolitan Edison Co.,

419 U.S. 345 (1974) .............................................. 10

Kinderstart.com LLC v. Google, Inc.,

No. C 06- 2057 JF (RS), 2007 WL

831806 (N.D. Cal. Mar. 16, 2007) .......................... 5

Knight First Amendment Institute v.

Trump,

302 F. Supp. 3d 541 (S.D.N.Y. 2018) ..................... 9

La’Tiejira v. Facebook, Inc.,

272 F. Supp. 3d 981 (S.D. Tex. 2017) .................. 20

Lloyd Corp. v. Tanner,

407 U.S. 551 (1972) .............................................. 11

Lugar v. Edmondson Oil Co.,

457 U.S. 922 (1982) .......................................... 5, 21

Marsh v. Alabama,

326 U.S. 501 (1946) .............................. 7, 10, 11, 13

Matal v. Tam,

137 S. Ct. 1744 (2017) .......................................... 17

Nyabwa v. FaceBook,

No. 2:17-CV-24, 2018 WL 585467

(S.D. Tex. Jan. 26, 2018) ........................................ 5

vi

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PAGE(S)

Packingham v. North Carolina,

137 S. Ct. 1730 (2017) ............................ 2, 4, 17, 18

Prager Univ. v. Google LLC,

2018 WL 1471939 (N.D. Cal. Mar. 26,

2018)................................................................ 3, 4, 7

Publius v. Boyer-Vine,

237 F. Supp. 3d 997 (E.D. Cal. 2017)................... 20

R.A.V. v. St. Paul,

505 U.S. 377 (1992) .............................................. 16

Rendell-Baker v. Kohn,

457 U.S. 830 (1982) .............................................. 10

Reno v. American Civil Liberties Union,

521 U.S. 844 (1997) .............................................. 18

Robinson v. Hunt Cty., Texas,

2017 WL 7669237 (N.D. Tex. Dec. 14,

2017)...................................................................... 20

Shulman v. Facebook.com,

No. CV 17-764 (JMV), 2017 WL

5129885 (D.N.J. Nov. 6, 2017) ............................... 5

Snyder v. Phelps,

562 U.S. 443 (2011) .............................................. 17

Southeastern Promotions, Ltd. v.

Conrad,

420 U.S. 546 (1975) ................................................ 8

vii

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PAGE(S)

Texas v. Johnson,

491 U.S. 397 (1989) .............................................. 17

United States v. Playboy Entm’t Grp.,

Inc.,

529 U.S. 803 (2000) .............................................. 16

United States v. Stevens,

559 U.S. 460 (2010) .............................................. 16

Utah Gospel Mission v. Salt Lake City

Corp.,

425 F.3d 1249 (10th Cir. 2005) ...................... 13, 14

Wasatch Equality v. Alta Ski Lifts Co.,

820 F.3d 381 (10th Cir. 2016) .............................. 10

Zhang v. Baidu.com Inc.,

10 F. Supp. 3d 433 (S.D.N.Y. 2014) ..................... 20

STATE CASES

New York v. Marquan M.,

19 N.E.3d 480 (N.Y. 2014).................................... 17

State v. Bishop,

787 S.E.2d 814 (N.C. 2016) .................................. 17

FEDERAL STATUTES

47 U.S.C. § 531(b) ...................................................... 21

viii

TABLE OF AUTHORITIES

PAGE(S)

STATE REGULATIONS

N.Y. Comp. Codes R. & Regs. Title 16,

§§ 895.4(c)(8)-(9) ............................................. 19, 22

N.Y. Comp. Codes R. & Regs. Title 16,

§ 895.4(a)(1) .......................................................... 22

N.Y. Comp. Codes R. & Regs. Title 16,

§ 895.4(b)(1) .......................................................... 22

1

INTERESTS OF AMICUS CURIAE

Internet Association represents roughly forty

leading technology companies.

Its membership

includes a broad range of Internet companies, from

travel sites and online marketplaces to social

networking services and search engines. Internet

Association advances public policy solutions that

strengthen and protect Internet freedoms, foster

innovation and economic growth, and empower small

businesses and the public. It respectfully submits this

Brief of Amicus Curiae in Support of Neither Party to

encourage this Court to limit its decision to the unique

facts of this case so that its decision does not

unintentionally disrupt the modern, innovative

Internet. 1

1

In accordance with Supreme Court Rule 37.6, amicus certifies

that (1) this brief was authored entirely by counsel for amicus

curiae and not by counsel for any party, in whole or in part; (2) no

party or counsel for any party contributed money to fund

preparing or submitting this brief; and (3) apart from amicus

curiae, its members, and its counsel, no other person contributed

money to fund preparing or submitting this brief.

2

I.

INTRODUCTION

This case presents an exceedingly narrow

question for the Court’s consideration: whether a

private non-profit corporation, appointed by a

government official to oversee a cable television public

access channel, qualifies a state actor for First

Amendment purposes. On its face, that issue has little

to do with Internet Association or its members. As

Respondents acknowledge, and as the most cursory

examination of the facts at issue makes clear, “social

media [and other Internet services are] nothing like

petitioner MNN” and thus “[t]he decision below . . .

does not compel any conclusions about the application

of the First Amendment to [such services].” Brief in

Opposition (“BIO”) at 35 (emphasis added).

Petitioners agree that Internet services “are not, and

should not be considered, constitutional public fora.”

Petitioner’s Br. at 56.

Nevertheless, amicus curiae is concerned that

any decision that deems MNN a state actor will be

misinterpreted in ways that are highly damaging to

the Internet. In particular, Internet Association fears

that litigants and lower courts will misread such a

decision as a general loosening of the exacting

restrictions this Court has historically applied when

considering whether a private space, operated by a

private company, is subject to constitutional scrutiny.

This fear is not unfounded. In recent years,

numerous plaintiffs, some bolstered by overbroad or

incorrect interpretations of this Court’s decision in

Packingham v. North Carolina, 137 S. Ct. 1730 (2017),

have attempted to treat Internet companies as state

3

actors. 2 Thus, while Internet Association takes no

position on the question of whether MNN itself is a

state actor, it respectfully asks that the Court be

mindful that any decision it issues in this case could

have effects far beyond the specific context of public

access television channels.

In so doing, this Court should emphasize two

principal points to prevent any confusion about the

legal rights and responsibilities of Internet companies.

First, this Court should make clear that private

property will be deemed a public forum, and the

regulation of private property will be deemed a “public

function,” only in extraordinary circumstances. This

Court rarely, if ever, permits the application of these

doctrines to private property. To the extent it has

deviated from this rule, this Court has done so only

when the private property at issue was operated by the

state, subject to considerable state regulation, or had

taken on all of the attributes of a state or local

government. Private property owned by a private

entity over which the government exercises no control

cannot qualify as a public forum. And the regulation

of private property that does not in effect function as a

“company town” is not a “public function.” Those

principles, drawn from years of precedent, should

remain the guideposts for any analysis of whether

MNN is a state actor under the distinctive

circumstances of this case.

2

See e.g., Prager Univ. v. Google LLC, 2018 WL 1471939, *5 (N.D.

Cal. Mar. 26, 2018) (“Plaintiff contends that [YouTube and

Google] are state actors under the ‘public function’ test” and cited

Packingham in support of this claim).

4

Second, a private property owner is not

converted into a state actor merely because it operates

a space where free expression is encouraged to occur.

Similarly, a private space does not become public when

it shares certain characteristics of a classic public

forum. A public access channel may be, as the Second

Circuit held in this case, “the electronic version of the

public square.” Halleck v. Manhattan Community

Access Corp., 882 F.3d 300, 306 (2d Cir. 2018). And

the Internet may be “the modern public square.”

Packingham, 137 S. Ct. at 1737. But those facts alone

are insufficient to transform these spaces into public

forums for purposes of the First Amendment. Instead,

the critical antecedent question is whether the private

space is, or has all the attributes of, a public forum. A

space that is not owned, leased, controlled, or heavily

regulated by the government cannot be a public forum

under this Court’s well-established precedent.

At bottom, Internet Association simply asks

that “[i]n considering the application of unchanging

constitutional principles to new and rapidly evolving

technology, this Court . . . proceed with caution.”

Brown v. Entm’t Merchants Ass’n, 564 U.S. 786, 806

(2011) (Alito, J., concurring). More than two decades

ago, a plurality of this Court warned that it was “not

at all clear that the public forum doctrine should be

imported wholesale” into a “new and changing area”—

then the innovative field of cable television. Denver

Area Educ. Telecomms. Consortium, Inc. v. FCC, 518

U.S. 727, 749 (1996). The time appears to have come

to resolve the question left open in Denver Area, but it

has not yet arrived for the Internet. 3 Prudence, and

3

Indeed, numerous courts have rightly held that Internet

companies are not state actors. See, e.g., Prager Univ., 2018 WL

5

this Court’s “necessarily fact-bound” approach to

determining whether a private entity is a state actor,

Lugar v. Edmondson Oil Co., 457 U.S. 922, 939 (1982),

counsel in favor of a narrow decision limited to the

unique facts of this case.

1471939, at *8 (holding that YouTube and Google were not

“state actors that must regulate the content on their privately

created website in accordance with the strictures of the First

Amendment”); Nyabwa v. FaceBook, No. 2:17-CV-24, 2018 WL

585467, at *1 (S.D. Tex. Jan. 26, 2018) (“Because the First

Amendment governs only governmental restrictions on speech,

Nyabwa has not stated a cause of action against FaceBook.”);

Shulman v. Facebook.com, No. CV 17-764 (JMV), 2017 WL

5129885, at *4 (D.N.J. Nov. 6, 2017) (“The Court also notes that

efforts to apply the First Amendment to Facebook . . . have

consistently failed.”); Forbes v. Facebook, Inc., No. 16 CV 404

(AMD), 2016 WL 676396, at *2 (E.D.N.Y. Feb. 18, 2016)

(“Facebook is a private corporation, and Mr. Forbes does not

allege any facts that could support a claim of a ‘close nexus’

between Facebook and the state, such that Facebook’s actions

(or inaction) may be fairly attributable to the state.”); Doe v.

Cuomo, No. 10-CV-1534 (TJM/CFH), 2013 WL 1213174, at *9

(N.D.N.Y. Feb. 25, 2013) (holding that Facebook not state actor

under joint action test); Kinderstart.com LLC v. Google, Inc., No.

C 06- 2057 JF (RS), 2007 WL 831806, at *14 (N.D. Cal. Mar. 16,

2007) (concluding Google was not state actor); see also, e.g.,

Green v. America Online (AOL), 318 F.3d 465, 472 (3d Cir. 2003)

(“AOL is a private, for profit company and is not subject to

constitutional free speech guarantees. . . . We are unpersuaded

by Green’s contentions that AOL is transformed into a state

actor because AOL provides a connection to the Internet on

which government and taxpayer-funded websites are found, and

because AOL opens its network to the public whenever an AOL

member accesses the Internet and receives email or other

messages from non-members of AOL.”); Howard v. America

Online Inc., 208 F.3d 741, 754 (9th Cir. 2000) (concluding that

AOL was not a state actor where plaintiffs had argued that

“AOL is a ‘quasi-public utility’ that ‘involv[es] a public trust’”).

6

II.

THERE IS AN EXCEEDINGLY HIGH BAR

FOR SUBJECTING PRIVATE ACTORS TO

CONSTITUTIONAL SCRUTINY

This Court has rarely found that a private

entity should be subject to the First Amendment

obligations traditionally imposed on governmental

actors. Indeed, whether one applies this Court’s

various state action tests or accepts the Second

Circuit’s position that the public forum test sheds light

on the First Amendment’s applicability to MNN’s

actions, the bar to finding that any private entity’s

actions are subject to constitutional scrutiny is

exceptionally high. This case presents no occasion to

deviate from, or diminish, these stringent standards.

A.

Public Forum Analysis is Almost

Never Appropriate When Applied to

Private Property

Public forum analysis typically applies only to

spaces that are owned and therefore controlled by the

government. See, e.g., Christian Legal Soc’y Chapter

of the Univ. of Cal, Hastings College of the Law v.

Martinez, 561 U.S. 661, 679 (2010) (“[I]n a progression

of cases, this Court has employed forum analysis to

determine when a governmental entity, in regulating

property in its charge, may place limitations on

speech.”) (emphasis added); Denver Area Educ.

Telecomms. Consortium, Inc., 518 U.S. at 827

(Thomas, J., concurring in judgment in part and

dissenting in part) (“The public forum doctrine is a rule

governing claims of a right of access to public property

and has never been thought to extend beyond property

generally understood to belong to the government.”)

(internal citation and quotation marks omitted);

7

Comite de Jornaleros de Redondo Beach v. City of

Redondo Beach, 657 F.3d 936, 956 (9th Cir. 2011)

(“The Supreme Court has never allowed privately

owned venues to substitute for public fora.”). Indeed,

the Court has often drawn a sharp divide between

private and public property when analyzing putative

public fora. See Int’l Soc’y for Krishna Consciousness,

Inc. v. Lee, 505 U.S. 672, 680-81 (1992) (dismissing

evidence of speech activity that occurred at rail

stations and bus stations as “irrelevant to public fora

analysis, because sites such as bus and rail terminals

traditionally have had private ownership” and

concluding that the “practices of privately held

transportation centers do not bear on the

government’s regulatory authority over a publicly

owned airport”) (emphasis in original).

To be sure, this Court has sometimes suggested

that private property dedicated to public use may be

deemed a public forum. Respondents point to two such

cases: Cornelius v. NAACP Legal Defense and

Education Fund, Inc., 473 U.S. 788 (1985) and Marsh

v. Alabama, 326 U.S. 501 (1946). BIO at 27. But the

Court made this suggestion only in dicta in Cornelius 4

4

See Petitioner’s Br. at 31 (“Respondents have previously argued

that dicta in Cornelius v. NAACP Legal Defense & Educ. Fund,

473 U.S. 788 (1985), extends the public forum analysis to ‘private

property dedicated to public use.’ Id. at 801. But Cornelius only

makes this statement in passing, with no elaboration, analysis or

discussion. See id. at 801-06.”) (emphasis added); see also Prager

Univ., 2018 WL 1471939, at *8 (“Although both [Denver Area

Educational Telecommunications Consortium, Inc. v. FCC, 518

U.S. 727, and Cornelius v. NAACP Legal Defense and Education

Fund, Inc., 473 U.S. 788 (1985)] mentioned that public forums

may include ‘private property dedicated to public use’ . . . both

cases addressed whether certain speech restrictions enacted by

8

and Marsh has both been carefully limited to its facts

and has long been considered a “public function,”

rather than a public forum case. See Flagg Bros., Inc.

v. Brooks, 436 U.S. 149, 158-59 (1978) (“A second line

of cases under the public-function doctrine originated

with Marsh v. Alabama . . . .).

This Court’s decision in Southeastern

Promotions, Ltd. v. Conrad, 420 U.S. 546 (1975), is far

more instructive. There, the Court held that a

“privately owned . . . theater under long-term lease to

the city” was a public forum for First Amendment

purposes. Id. at 547. In other words, the government

may not have owned the property at issue in Conrad,

but it controlled it under a formal legal arrangement

and essentially stepped into the shoes of the private

owner for the period of the long-term lease. That

holding, rather than Cornelius’ dicta, better

demonstrates the kind of role the government must

play with respect to a particular private space for it to

be transformed into a public forum.

Thus, if this Court determines that public

access channels are private property, the Second

Circuit’s decision can be harmonized with this Court’s

precedents only if it is understood to fall within a

the federal government violated the First Amendment.

Specifically, Denver Area involved a challenge to a federal statute

regulating the broadcasting of offensive ’sex-related material on

cable television,’ 518 U.S. at 732, while Cornelius addressed a

challenge to an executive order that excluded ’legal defense and

political advocacy organizations’ from participating in a ’charity

drive aimed at federal employees.’ 473 U.S. at 790. Therefore,

neither case addressed the circumstances in which a private

property owner must be treated as a state actor for constitutional

purposes.”).

9

narrow category of cases in which private property

over which the government exerts a significant degree

of ownership or control is deemed a public forum. See

Halleck v. Manhattan Community Access Corp., 882

F.3d 300, 306 (2d Cir. 2018) (holding that because

“federal law authorizes setting aside channels for

public access,” state regulation and the terms of a

municipal contract both require the provision of such

a channel and “a municipal official has designated a

private corporation to run those channels” the

channels at issue here are public fora). It should go

without saying that this kind of public forum analysis

could not and should not extend to private

organizations like amicus curiae’s members, which

retain complete ownership and control over their

Internet services. 5 They are, in the words of this

Court, “not fora at all.” Arkansas Educ. Television

Comm’n v. Forbes, 523 U.S. 666, 677-79 (1998).

B.

“Public Function” Analysis Also Sets

a High Standard

This Court has set forth several tests for

determining whether a private actor should be treated

as a state actor for purposes of the First Amendment.

Although the parties do not agree about the

appropriate state action test to apply in this case,

compare Pet. Reply Br. for Writ of Certiorari at 5, with

BIO at 21-28, they do agree on one thing. Neither

party has suggested that this Court should find that

5

See, e.g., Knight First Amendment Institute v. Trump, 302 F.

Supp. 3d 541, 566 (S.D.N.Y. 2018) (“Twitter is a private (though

publicly traded) company that is not government-owned.”); id. at

567 (“Twitter . . . maintains control over . . . all . . . Twitter

accounts”).

10

MNN is a state actor under any standard other than

the so-called “public function” test.

“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, 768 F.3d 259, 264-65 (2d Cir. 2014)

internal quotation marks omitted).

Thus, “the

relevant question” when applying this test “is not

simply whether a private group is serving a ‘public

function,’” but rather “whether the function performed

has been ‘traditionally the exclusive prerogative of the

State.’” Rendell-Baker v. Kohn, 457 U.S. 830, 842

(1982). This test is “difficult to satisfy,” Wasatch

Equality v. Alta Ski Lifts Co., 820 F.3d 381, 390 (10th

Cir. 2016), in large part because “[w]hile many

functions have been traditionally performed by

governments, very few have been ‘exclusively reserved

to the State,’” Flagg Bros., 436 U.S. at 158 (quoting

Jackson v. Metropolitan Edison Co., 419 U.S. 345, 352

(1974)).

And this Court has routinely rebuffed

litigants’ attempts to expand the scope of this doctrine

to encompass the “broad principle that all businesses

affected with the public interest are state actors.”

Jackson, 419 U.S. at 352 (internal quotation marks

omitted). This Court should not deviate from these

time-tested principles in this case.

This Court has historically demonstrated a

strong aversion to finding that a private entity’s

administration of its property is a “public function.” In

Marsh v. Alabama, 326 U.S. 501 (1946), for example,

the Court held that because a privately-owned

11

“company town” shared “all the characteristics of any

other American town” the First Amendment applied

just as it would to a publicly-owned town or city. Id.

at 505. But subsequent decisions interpreting Marsh

have made clear that private property can “be treated

as though it were public” for purposes of the public

function test only if “that property has taken on all the

attributes of a town, i.e., ‘residential buildings, streets,

a system of sewers, a sewage disposal plant and a

‘business block’ on which business places are

situated.’” Flagg Bros., 436 U.S. at 159 (quoting

Amalgamated Food Emp. Union Local 590 v. Logan

Valley Plaza, Inc., 391 U.S. 308, 332 (1968) (Black, J.,

dissenting)). This strict state action analysis does not

change if “the public is generally invited to use [the

private property at issue] for designated purposes.”

Lloyd Corp. v. Tanner, 407 U.S. 551, at 569 (1972); see

also Petitioner’s Brief at 5, 20. Indeed, as this Court

has noted:

Before an owner of private property can

be subjected to the commands of the

First and Fourteenth Amendments the

privately owned property must assume

to some significant degree the functional

attributes of public property devoted to

public use. The First and Fourteenth

Amendments are limitations on state

action, not on action by the owner of

private property used only for private

purposes. The only fact relied upon for

the argument that [the private] parking

lots have acquired the characteristics of

a public municipal facility is that they

are ‘open to the public.’

Such an

12

argument could be made with respect to

almost every retail and service

establishment in the country, regardless

of size or location. To accept it would . . .

constitute an unwarranted infringement

of long-settled rights of private property

protected by the Fifth and Fourteenth

Amendments.

Central Hardware Co. v. NLRB, 407 U.S. 539, 547

(1972)

Public access channels have not “taken on all

the attributes of a town.” Flagg Bros., 436 U.S. at 159

(emphasis added). They provide an important public

service and are a vital outlet for free expression. But

they do not “assume to some significant degree the

functional attributes of public property devoted to

public use.” Central Hardware Co. v. NLRB, 407 U.S.

539, 547 (1972). Accordingly, this case presents no

occasion to expand the kinds of spaces where a private

entity’s operation of private property is subject to

constitutional scrutiny under the “public function”

test.

Respondents appear to agree that this case is

not an easy fit for the traditional “public function” test.

Instead, Respondents seek to collapse the public forum

and the “public function” tests by arguing that the

“public function” that MNN provides is its

management and oversight of a public forum. BIO at

1 (“Petitioners do not seriously dispute that, if New

York’s public access channels are public forums,

petitioners’ regulation of them is state action. Indeed,

that point is elementary. If a municipality delegates

administration of its public sidewalks to a nonprofit

13

corporation, regulation of those sidewalks is still

bound by the First Amendment.”); see also Petitioner’s

Br. at 23-24 (explaining that there is no precedent for

skipping the state action inquiry prior to evaluating

whether property is a public forum). Judge Lohier

applied the same analysis in his concurring opinion

below. See Halleck, 882 F.3d at 308 (arguing that 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”)

(Lohier, J., concurring). But neither Respondents nor

Judge Lohier cite any cases from this Court to support

their contention that control of a public forum by a

private entity, absent considerable government control

or oversight, is an exclusive state function for purposes

of the “public function” test. 6 This, of course, is not

6

Respondents suggest that Marsh v. Alabama, 326 U.S. 501

(1946) and Evans v. Newton, 382 U.S. 296 (1966) support this

claim. BIO at 21. But Marsh stands solely for the proposition

that private property can “be treated as though it were public” for

purposes of the “public function” test only where “that property

has taken on all the attributes of a town, i.e., ‘residential

buildings, streets, a system of sewers, a sewage disposal plant

and a ‘business block’ on which business places are situated.’”

Flagg Bros., 436 U.S. at 159 (quoting Amalgamated Food Emp.

Union Local 590 v. Logan Valley Plaza, Inc., 391 U.S. 308, 332

(1968) (Black, J., dissenting)). And Evans, which held that the

operation of a privately-owned park was an “exclusively public

function,” “rests on a finding of ordinary state action under

extraordinary circumstances”—namely the fact that transfer of a

public park’s title to private trustees had “not been shown to have

eliminated the actual involvement of the city in [its] daily

maintenance and care.” Id. at 159 n.8; see also Evans, 382 U.S.

at 301 (explaining that “[s]o far as this record shows, there has

been no change in the municipal maintenance and concern over

this facility” and that “[i]f the municipality remains entwined in

the management or control of the park, it remains subject to the

restraints of the Fourteenth Amendment”); Utah Gospel Mission

14

surprising, given that public forum analysis is

traditionally applied only to determine whether a

“governmental entity, in regulating property in its

charge, may place limitations on speech.” Christian

Legal Soc’y, 561 U.S. at 679 (emphasis added).

In any event, it is essential to recognize that

Respondents’ and Judge Lohier’s novel “public

function” test carries with it a critical antecedent

question: whether the space at issue is, in fact, a

public forum.

If, as Respondents argue,

“[a]dministering public forums is a public function,”

then it is first necessary to consider whether the

property in question is a public forum. BIO at 21. But

as the foregoing discussion of public forum doctrine

makes clear, see supra at 6-7, the only way to answer

this antecedent question is to determine whether a

private entity has been delegated ownership or control

over government property; whether the government

has effectively stepped into the shoes of the private

entity under some formal legal arrangement; or

v. Salt Lake City Corp., 425 F.3d 1249, 1254-56 (10th Cir. 2005)

(noting that “Evans has since been limited to the unique facts

involved”). Indeed, the Court’s reliance on the government’s

continued involvement in the management of the park at issue in

Evans has led many courts—including this one—to associate it

with the “entwinement” state action test, rather than this Court’s

“public function” precedents.

See Brentwood Academy v.

Tennessee Secondary School Athletic Ass’n, 531 U.S. 288, 295

(2001) (distinguishing between “public function” test and

“entwinement” test and associating Evans with the latter); see

also Gonzalez-Maldonado v. MMM Healthcare, Inc., 693 F.3d 244,

248 (1st Cir. 2012) (associating Evans with this Court’s

“entwinement doctrine”); Hallinan v. Fraternal Order of Police of

Chicago Lodge No. 7, 570 F.3d 811, 815-16 (7th Cir. 2009) (same).

15

whether a private entity oversees private property

that is so controlled or regulated by the government

that it can be deemed a public forum. Nothing about

Respondent’s or Judge Lohier’s proposed “public

function” test lowers this already-high bar for whether

private property qualifies as a public forum in the first

place.

III.

THERE

ARE

SERIOUS

ADVERSE

CONSEQUENCE

TO

TREATING

INTERNET COMPANIES AS STATE

ACTORS

As noted, Internet Association takes no

position on whether MNN is a state actor. It does,

however, wish to emphasize the profound impact that

any determination that Internet companies are state

actors would have on these companies.

These

consequences demonstrate why this Court should be

especially careful in crafting any state action ruling

in these narrow circumstances.

A.

An Unintentionally Broad Ruling

That Treats Private Companies as

State Actors Would Transform the

Modern Internet

Imposing the First Amendment’s strictures on

private actors like amicus curiae’s members would

result in a radical transformation in the content and

caliber of the services provided by modern Internet

companies. While it is impossible to predict the full

range of consequences such a radical change would

wreak on the Internet, two would be unavoidable.

16

First, the Internet as we know it will become

less attractive, less safe, and less welcoming to the

average user. “‘From 1791 to the present’ . . . the First

Amendment has ‘permitted restrictions upon the

content of speech in a few limited areas.’” United

States v. Stevens, 559 U.S. 460, 468 (2010) (quoting

R.A.V. v. St. Paul, 505 U.S. 377, 382-83 (1992)).

Those “‘well-defined and narrowly limited’” areas

include obscenity, defamation, fraud, incitement, and

speech integral to criminal conduct. Id. at 468-469

(listing cases and quoting Chaplinsky v. New

Hampshire, 315 U.S. 568, 571-72 (1942)). Outside of

this handful of categories, “[i]t is rare that a

regulation restricting speech because of its content

will ever be permissible.” United States v. Playboy

Entm’t Grp., Inc., 529 U.S. 803, 818 (2000) (emphasis

added).

If deemed to be state actors, Internet

companies

would,

under

blackletter

First

Amendment law, be barred from removing or limiting

access to videos that contain nudity,7 profanity and

expletives, 8 hate speech, 9 or depictions of animal

cruelty. 10 Attempts to restrict videos that advocate

non-imminent violence or other lawless action; 11

“demean[] on the basis of race, ethnicity, gender,

religion, age, disability, or any other similar

7

Erznoznik v. Jacksonville, 422 U.S. 205 (1975).

8

Cohen v. California, 403 U.S. 15, 18 (1971).

9

R.A.V. v. St. Paul, 505 U.S. 377 (1992).

10

Stevens, 559 U.S. at 482.

11

Brandenburg v. Ohio, 395 U.S. 444, 447-48 (1969).

17

ground,” 12 contain content on matters of public

concern that nonetheless “inflict great pain” or

emotional distress on others, 13 or constitute

cyberbullying 14 would be similarly impermissible. As

a result, Internet companies could not enforce their

community standards or make their own editorial

choices about what content to exclude from their

websites to best serve and protect their users.

Second, if this Court were to determine that

Internet companies are state actors, it will impose a

significant penalty on private actors that make their

services available to third parties for the expression

and exchange ideas. Social media websites and other

Internet businesses did not become “the most

important places (in a spatial sense) for the exchange

of views” by accident. Packingham, 137 S. Ct. at

1735. To be sure, the Internet inherently offers a

12

Matal v. Tam, 137 S. Ct. 1744, 1764 (2017) (opinion of Alito, J.);

see id. at 1766-67 (opinion of Kennedy, J.) (“The Government may

not insulate a law from charges of viewpoint discrimination by

tying censorship to the reaction of the speaker’s audience . . .

.[T]he Court’s cases have long prohibited the government from

justifying a First Amendment burden by pointing to the

offensiveness of the speech to be suppressed.”); Texas v. Johnson,

491 U.S. 397, 414 (1989) (“If there is a bedrock principle

underlying the First Amendment, it is that the government may

not prohibit the expression of an idea simply because society finds

the idea itself offensive or disagreeable.”).

13

Snyder v. Phelps, 562 U.S. 443, 461 (2011) (finding the following

placards, placed at a military service member’s funeral, to be

protected by the First Amendment: “Fag Troops,” “Semper Fi

Fags,” “God Hates Fags,” “Fags Doom Nations,” “Thank God for

Dead Soldiers,” “Pope in Hell,” “Priests Rape Boys”).

14

New York v. Marquan M., 19 N.E.3d 480 (N.Y. 2014); State v.

Bishop, 787 S.E.2d 814 (N.C. 2016).

18

“relatively

unlimited,

low-cost

capacity

for

communication of all kinds,” and those realities have

contributed to the Internet’s openness. Reno v.

American Civil Liberties Union, 521 U.S. 844, 870

(1997). But it is equally crucial that the owners and

operators of the leading Internet businesses were—

and are—committed to promoting expression in a

manner consistent with their terms of service and

other community norms. Treating these companies

as state actors would, in effect, penalize them

precisely because of their prior success in creating

vibrant and welcoming online communities. This

would create a powerful disincentive for future

innovators. Other companies would now think twice

before allowing users “to engage in a wide array of

protected First Amendment activity on topics ‘as

diverse as human thought.’” Packingham, 137 S. Ct.

at 1735-36 (citing Reno, 521 U.S. at 870).

19

Put simply, an Internet where companies are

treated as state actors is a very different Internet

from the one that exists today. It is an Internet where

individual businesses must be less responsive to

community norms and consumer demands, and

where these individual businesses are forced to be

less safe for children and families. And it is an

Internet with less of a self-directed commitment to

free expression. Amicus curiae respectfully submit

that this Court should consider these consequences as

it crafts its decision in this case.

B.

A Determination That Private

Internet Companies Are State Actors

Would Violate Those Actors’ First

Amendment Rights

MNN does not exercise editorial control over

the public access channel it oversees. Halleck v. City

of NY, 224 F. Supp. 3d 238, 240 (S.D.N.Y. Dec. 13,

2016) (citing 16 N.Y. Comp. Codes R. & Regs. tit. 16

§§ 895.4(c)(8)-(9), which prohibits “editorial control”

except for “measures as may be authorized by Federal

or State law to prohibit obscenity or other content

unprotected by the First Amendment”). By contrast,

the vast majority of Internet companies exercise some

meaningful measure of editorial control over their

websites. The First Amendment implications of

holding that MNN is a state actor are therefore

dramatically different from treating Internet

companies as state actors.

Courts have routinely held that online services

receive First Amendment protection for their

20

editorial choices. 15

This conclusion ineluctably

follows from three well-established constitutional

principles that the Supreme Court distilled in Hurley

v. Irish-American Gay, Lesbian and Bisexual Group

of Boston, 515 U.S. 557, 573 (1995). First, “since all

speech inherently involves choices of what to say and

what to leave unsaid, one important manifestation of

the principle of free speech is that one who chooses to

speak may also decide what not to say.” Hurley, 515

U.S. at 573 (internal citations and quotation marks

omitted). Second, “a private speaker does not forfeit

constitutional protection simply by combining

multifarious voices.” Id. at 569. Put differently, the

First Amendment does not “require a speaker to

generate, as an original matter, each item featured in

the communication.” Id. at 570. This Court has, for

example, recognized that cable operators engage in

protected speech “even when they only select

programming originally produced by others,” and

newspapers receive First Amendment protection for

their selection of opinion authors and advertisers in

their publications.

Id.

Third, these bedrock

constitutional protections are not “restricted to the

15

E.g., Robinson v. Hunt Cty., Texas, 2017 WL 7669237, at *3

(N.D. Tex. Dec. 14, 2017) (“Facebook has a right to exercise

control over the contents of its platform.”); La’Tiejira v. Facebook,

Inc., 272 F. Supp. 3d 981, 991 (S.D. Tex. 2017) (Facebook has a

“First Amendment right to decide what to publish and what not

to publish on its platform”); Publius v. Boyer-Vine, 237 F. Supp.

3d 997, 1008 (E.D. Cal. 2017) (owner of a website has a “First

Amendment right to distribute and facilitate protected speech”);

Zhang v. Baidu.com Inc., 10 F. Supp. 3d 433, 437 (S.D.N.Y. 2014)

(attempt to hold an Internet service liable for “its editorial

judgments . . . cannot be squared with the First Amendment”).

21

press.” Id. at 574. They are “enjoyed by business

corporations generally.” Id.

Given these straightforward and firmlyestablished principles, Internet companies have a

First Amendment right to make editorial choices on

their websites. As a consequence, a decision holding

or implying that these organizations are state actors

would not only run counter to this Court’s state action

standards, but also abridge these services’ First

Amendment rights.

IV.

ANY RULING IN THIS CASE SHOULD BE

AN EXCEEDINGLY NARROW ONE,

INFORMED BY THE LEGAL PRINCIPLES

AND PRACTICAL CONSEQUENCES SET

FORTH ABOVE

Courts have repeatedly emphasized that

determining whether a private entity should be

subject to constitutional scrutiny is a “necessarily factbound inquiry.” Lugar v. Edmondson Oil Co., 457 U.S.

922, 939 (1982); see also Askins v. U.S. Dep’t of

Homeland Sec., 899 F.3d 1035, 1045 (9th Cir. 2018)

(noting that “determining whether a location is

properly categorized as a public forum involves largely

factual questions”). And the facts here are clear. The

Cable Communications Policy Act of 1984 “authorizes

cable franchising authorities to require for franchise

renewal ‘that channel capacity be designated for

public, educational, or governmental use.’” Halleck v.

Manhattan Community Access Corp., 882 F.3d 300,

302 (2d Cir. 2018) (quoting 47 U.S.C. § 531(b)). New

York, in turn, “requires that every franchisee of

[certain] cable television station[s] . . . shall designate

. . . at least one full-time activated channel for public

22

access use.” Halleck v. City of NY, 224 F. Supp. 3d 238,

240 (S.D.N.Y. 2016) (quoting N.Y. Comp. Codes R. &

Regs. tit. 16, § 895.4(b)(1)). This public access channel

must be made available to the public “on a first-come,

first-served, nondiscriminatory basis.” Ibid. (quoting

N.Y. Comp. Codes R. & Regs. tit 16, § 895.4(a)(1)). As

a condition of Time Warner’s cable franchise with New

York City, MNN was appointed by the Manhattan

Borough President to administer its public access

channels.

Ibid.

And MNN is prohibited from

exercising any editorial control over this channel, with

the exception of taking measures to “prohibit obscenity

or other content unprotected by the First

Amendment.” Ibid. (quoting N.Y. Comp. Codes R. &

Regs. tit 16, §§ 895.4(c)(8)-(9)).

These features were central to the decision

below. As the Second Circuit explained:

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 . . . [and because MNN employees]

are not interlopers in a public forum . . .

[and instead] are exercising precisely the

authority to administer such a forum

conferred on them by a senior municipal

23

official [the First Amendment applies to

their actions]

Halleck, 882 F.3d at 306-307.

Critically, Respondents agree that this case

turns on these highly specific facts. It argues that

MNN is subject to constitutional scrutiny because (1)

New York’s public access channels are available to the

public on a first-come, first-served basis and are

intended to create a forum for expressive activity; (2)

MNN cannot assert editorial control over the content

displayed on these channels; and (3) New York City

created the channels at issue. See BIO at 23-25 (“This

conduct taken together, evinces New York City’s

unmistakable intent to designate its public access

channels as public forums.”) (emphasis added). The

court below and the parties in this case are therefore

in accord that if this Court holds that MNN is a state

actor, the unique set of facts at issue here warrants a

correspondingly limited holding.

This regulatory structure presents a vivid

contrast to Internet companies’ role in building and

managing their online services. Neither federal nor

state law has mandated the creation of any of Internet

Association’s members—or, for that matter, any

relevant private online service. These companies are

privately-owned, and the government does not play a

comparable role in their oversight or regulation.

Unlike MNN, moreover, these companies can control

both the users who are permitted to access their sites,

as well as the community standards that users must

adhere to. Consequently, Internet Association merely

asks the Court to make clear that any holding

regarding public access channels cannot apply to

24

Internet services, and any finding of state action in

this case sheds no light on whether Internet companies

are subject to constitutional scrutiny. See BIO at 35

(“[S]ocial media [and other internet services are]

nothing like petitioner MNN.”). But see Petitioner’s

Br. at 57 (“[I]f MNN’s minimal nexus to the

government is sufficient to find state action, then

entities such as . . . Facebook [and] Twitter . . . —all of

which are subject to some level of governmental

regulation—should be concerned.”). In so doing, the

Court should reaffirm its commitment to the view that,

absent extraordinary governmental involvement in

the control of a private space or a private entity’s

assumption of all of the functions of a municipality,

neither the public forum nor “public function”

doctrines extend to private property operated by a

private entity.

V.

CONCLUSION

For the foregoing reasons, this Court should

carefully limit its opinion to the unique facts of this

case and make clear that a private entity’s operation

of private property will only rarely be subject to

constitutional scrutiny.

25

Respectfully submitted,

CHAD GOLDER

Counsel of Record

LAUREN E. ROSS

MUNGER, TOLLES & OLSON LLP

1155 F Street NW, 7th Floor

Washington, DC 20004

(202) 220-1100

Chad.Golder@mto.com

December 11, 2018