Amicus Curiae Brief — Manhattan Cmty. Access Corp. v. Halleck, 139 S. Ct. 360 (2018) (No. 17-1702)

No. 17-1702

Supreme Court of the United States

MANHATTAN COMMUNITY ACCESS CORPORATION, ET AL.,

mitts Petitioners,

DEEDEE HALLECK, ET AL.,

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE SECOND CIRCUIT

BRIEF AMICI CURIAE OF THE AMERICAN CIVIL

LIBERTIES UNION, NEW YORK CIVIL LIBERTIES UNION,

AND NATIONAL COALITION AGAINST CENSORSHIP,

IN SUPPORT OF RESPONDENTS

Arthur N. Eisenberg David D. Cole

NEW YoOrK CIVIL LIBERTIES Counsel of Record

UNION FOUNDATION AMERICAN CIVIL LIBERTIES

125 Broad Street UNION FOUNDATION

New York, NY 10004 915 15th Street, NW

a Washington, DC 20005

THE WHARTON SCHOOL (202) 676-2330

UNIVERSITY OF PENNSYLVANIA dcole@aclu.org

3730 Walnut Street Vera Eidelman

Philadelphia, PA 19104 AMERICAN CIVIL LIBERTIES

UNION FOUNDATION

125 Broad Street

New York, NY 10004

TABLE OF CONTENTS

A ED GF A ED cicenseescnvscnccensvecsssenssnccenses iii

INTEREST OF AMICI CURIAE......................:0::cc0000 l

INTRODUCTION AND SUMMARY OF

IEE setectsipnicadetvatintcinaissnenincianiaesnenscenasceeesioss 2

STATUTORY AND REGULATORY

SEITE cenisscnchereedetaciebiusdasiipiiaeteimbeeneedioueiiies 7

CRE srstacnpninccnesnsinnrinsraidinsiieniaisemnassenvrcascsserete 16

|. THE STATE ACTION INQUIRY IS

DESIGNED TO IDENTIFY WHEN THE

STATE IS RESPONSIBLE FOR A

PARTICULAR ACTION. .................cc0cceeeeeeeeeees 16

ALL OF MNN’S DECISIONS REGARDING

WHAT CONTENT TO BROADCAST ARE

Se Ss ectrctnccnsecnstanchnciinisinesitintiniiimnseneens 19

A.

B.

D.

MNN’s Broadcast Decisions are State

Action Because State Law Dictates a

“First-Come, First-Served” Policy That

Leaves MNN No Discretion Over

Broadcast Decisions in the Provision

of a Free Government Service. ................. 19

The Fact that MNN’s Particular Decision

Apparently Misapplied the State’s Rules

Does Not Defeat State Action................... 25

The Court Need Not Reach the Public

Function or Public Forum Questions to

SII III ccckcinenisntdennanpabadesnanednuedess 27

A Finding of State Action Here Will Have

No Untoward Consequences for Private

Ey FINI ciitisiciebeiteintiiessiciiieibevitidbicitilictariend 29

CONCLUSION

EEE EEE EEE EEE EEE EEE EEE EEE EE

TABLE OF AUTHORITIES

CASES

Adickes v. S.H. Kress & Company,

Ea RO NEE es Comer 20

American Manufacturers Mutual Insurance Co. v.

Sullivan, 526 U.S. 40 (1999)........................06 21, 22

Barrows v. Jackson, 346 U.S. 249 (1953)................. 20

Blum v. Yaretsky, 457 U.S. 991 (1982).............. passim

Brentwood Acad. v. Tennessee Secondary Sch.

Athletic Ass'n, 531 U.S. 288 (2001)................ passim

Burton v. Wilmington Parking Auth.,

I a sitasisibieweinlereblianel 17

Catanzano v. Dowling,

pe bio) .- 2 ee 22, 23

Cooper v. Aaron, 358 U.S. 1 (1958) ......................++ 17

Davison v. Randall,

No. 17-2002, 2019 WL 114012 (4th Cir. Jan. 7,

2019), as amended (Jan. 9, 2019) ..................000006 30

Denver Area Educational Telecommunications

Consortium, Inc. v. FCC,

Ef 9, 13, 27

Evans v. Newton, 382 U.S. 296 (1966) ..................... 18

Ex parte Virginia, 100 U.S. 339 (1879).................... 17

Focus on the Family v. Pinellas Suncoast Transit

Authority, 344 F.3d 1263 (11th Cir. 2003) ..... 22, 23

Home Tel. & Tel. Co. v. City of Los Angeles,

og EE eee 26

ill

Hudgens v. Natl Labor Relations Bd.,

Oe ace insditicehsnsiendansinbanaceneuns 29

Jackson v. Metro. Edison Co..,

ey I cecicininscinatesnesndsteninsmansiinninis 16, 31

Knight First Amendment Inst. at Columbia Univ. v.

Trump, 302 F. Supp. 3d 541 (S.D.N.Y. 2018)....... 31

Kraemer v. Heckler,

737 F228 314 God Cir. 1084)..........00..0000000..0000. 22, 23

Lebron v. Natl R.R. Passenger Corp.,

a a cesduaeunesenneanissniienian 17

Leuthy v. LePage,

No. 1:17-CV-00296-JAW, 2018 WL 4134628

kW ree 31

Lugar v. Edmondson Oil Co.,

Ce iin crickahsceisensenicsesctnectiencnatt passim

Nat Collegiate Athletic Ass'n v. Tarkanian,

Te ir cciccricnetasnbsateninecnnieeadecnsssacetinn 17

Pennsylvania v. Board of Directors of City Trusts of

Philadelphia, 353 U.S. 230 (1957)....................... 18

Perry Educ. Ass’n v. Perry Local Educators’ Ass'n,

es Cie SE ininrtinctenicienitninnciiinininisainbaanstaiainn 28

Polk Cty. v. Dodson, 454 U.S. 312 (1981)................. 24

Turner Broad. Sys. Inc. v. FCC,

i i cesduiseneibemesatounte 8

United States v. Classic, 313 U.S. 299 (1941).......... 26

United States v. Stein,

OR eR ee 23

West v. Atkins, 487 U.S 42 (1988) ........................20+ 18

iv

CONSTITUTION

ne, I Ni i ich cinctccantsiecineninenhin passim

STATUTES & REGULATIONS

ee Nt eictetateeniccicitcecbcicdeerieieennamatcinenneas 30

Cable Communications Policy Act of 1984,

er eR ricci initaniecinscierensinnincbannsenesetncisies 8,9

6 Rian Se CSR 8, 20

a I haartlestnetaiaecinietetiacsenteseicbeblshenabasastioan 9

A EI clanircchideecticeesiahcnsdonitinlaksnsatanioddbintdiaationi 10

815 R.1. Admin. Code § 10-05-1.14.1................0....... 11

City of Springfield, Ohio, Codified Ordinances

ib MUI IU hcccshcsastasibsssnaetbietsdinigehanmenadinaiianntniiababesmnegeibcednes 14

Coeur d’Alene, Idaho, Mun. Code § 2.100.040......... 14

Minn. Stat. Ann. § 238.084(2)..........................cccceeee 12

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

Ea na at ae ee. See 10, 19, 20, 23

a a eeienibnebeeaianes )

TE SEES EIS. PA RE ae eas tae Rc rene a 9

ER EEE See Ae

I a i a il a is ee 10

I aa cell stata ciand aie elaasiiscesbcanieinted 10

ESSE ERE EI Be ROLE one arene We 11

RETREATS SS i -5 Ao a ee a ne Oa 9

Okla. Stat. Ann. tit. 11, § 22-107.1(D)..................... 14

St. Louis City Ordinance 8.29.140 .......00.....0.0.......... ll

ED, GD FI, BF cicnscscscicesssceninccwsiestinnnnss 13

LEGISLATIVE MATERIALS

H.R. Rep. No. 98-934 (1984), reprinted in 1984

i a esebiantinaseuaninies 8

OTHER AUTHORITIES

2008 Cable Franchise Agreement by and between

The City of New York and Time Warner

Entertainment Company, L.P. ....................... 12, 13

Chicago Access Network TV User Manual,

https://cantv.org/wp-content/uploads/20 18/1 1/

2018-User-Manual-1.pdf .........................0:0ceeceee eee 14

Community Access Organization Grant and Use

Agreement by and Between Time Warner

Entertainment Company, L.P. and Manhattan

Community Access Corporation d/b/a Manhattan

Neighborhood Network ....................... 10, 12, 13, 21

Government by Contract: Outsourcing and American

Democracy (Jody Freeman & Martha Minow eds.,

SII i cissdithsdhceshtabtenieteibesteetieiddemtingeidastbedsetiieiatietnaesasens 4

Jon D. Michaels, Privatization’s Progeny,

f= LES ene 3,4

MNN Staff, Manhattan Neighborhood Network,

https://perma.cc/A2VX-7QUFP ....... o.oo. eee eecee eee 13

Paul C. Light, The True Size of Government:

Tracking Washington’s Blended Workforce, 1984-

2015, The Volcker Alliance (2017).......................... 3

Public Access Guidelines, L.A. Cable Access Corp.,

https://perma.ce/JETW-P87H...................-.2.2c000000 15

West Sacramento Channel 21 Operating Rules and

Procedures,

https://www.cityofwestsacramento.org/home/

showdocument?id=7 12 ....................ccececeeeeeeeees 12, 15

INTEREST OF AMICI CURIAE!

The American Civil Liberties Union (“ACLU”)

is a nationwide, nonprofit, nonpartisan organization

with over 2 million members and supporters

dedicated to defending the principles of liberty and

equality embodied in the Constitution. The New York

Civil Liberties Union (““NYCLU”) is the New York

State affiliate of the ACLU with approximately

120,000 members in New York State.

The ACLU and NYCLU are steadfast

defenders of First Amendment freedoms. Since its

founding in 1920, the ACLU has appeared before this

Court in numerous cases protecting the freedom of

speech, including Whitney v. California, 274 U.S. 357

(1927); Hague v. CIO, 307 US. 496 (1939);

West Virginia State Board of Education v. Barnette,

319 U.S. 624 (1943); New York Times v. Sullivan, 376

U.S. 254 (1964); and New York Times v. United

States, 403 U.S. 713 (1971). The ACLU also served as

counsel for Petitioners in Denver Area Educational

Telecommunications Consortium, Inc. v. FCC, 518

U.S. 727 (1996).

Because this case requires the Court to

distinguish between private action, which is

protected by the First Amendment, and state action,

which is constrained by the First Amendment, its

proper resolution is a matter of significant concern to

! No counsel for a party authored this brief in whole or in part,

and no person or entity, other than amicus curiae, its members,

and its counsel, made a monetary contribution to the

preparation or submission of this brief Both parties have

consented to the filing of this brief.

the ACLU, NYCLU, and their members. Public

access channels in New York City were created and

are maintained to provide expressive opportunities

for a diversity of voices and viewpoints; New York’s

commitment to ideological diversity is therefore

additionally implicated in this case. The ACLU and

NYCLU support that commitment and for that

reason, as well, the resolution of this case is of

concern to amici and their members.

The National Coalition Against Censorship

(“NCAC”) is an alliance of more than 50 national

non-profit literary, artistic, religious, educational,

professional, labor, and civil liberties groups that are

united in their commitment to freedom of expression.

Since its founding, NCAC has worked to protect the

First Amendment rights of artists, authors, students,

readers, and the general public. NCAC has a

longstanding interest in opposing viewpoint-based

censorship and is joining in this brief to urge the

Court to preserve First Amendment protections

where states dictate content decisions on public

access channels. The views presented in this brief are

those of NCAC and do not necessarily represent the

views of each of its participating organizations.

INTRODUCTION AND SUMMARY OF

ARGUMENT

Respondents argue principally that

Manhattan Community Access Corporation d/b/a

Manhattan Neighborhood Network (“MNN”) is a

state actor because it performs a public function.

This brief argues that MNN’s broadcast content

decisions constitute state action whether or not MNN

is performing a public function. Those decisions are

properly attributable to the state, not any private

decision-maker, because federal, state, and city laws

and policies so strictly circumscribe MNN’s content

decisions that all independent editorial judgment is

displaced. Thus, it is the state, not MNN, that is

responsible for MNN’s content decisions.

With rare exceptions, the Constitution is

designed to regulate public actors, not private

individuals. This fact requires the Court to pay

careful attention to who is responsible when

nominally private actors engage in conduct in

coordination with or on behalf of government actors.

The essential inquiry asks whether given conduct is

properly attributable to a private party, and so free

of constitutional constraint, or to the state, and

therefore bound by the Constitution’s requirements.

Just as it would be inappropriate to impose

constitutional conscraints on truly private decision-

making, so it is wrong to allow the government to

evade constitutional limits by delegating its power to

private parties while retaining control.

Over the course of the last century,

governments at all levels have turned to private

entities to carry out governmental work. See, e.g.,

Paul C. Light, The True Size of Government:

Tracking Washington’s Blended Workforce, 1984-

2015, The Volcker Alliance 34 (2017),

https://www.volckeralliance org/sites/default/files/att

achments/Issue%20Paper_True%20Size%200f%20Go

vernment.pdf. In the last two decades, this has

grown increasingly true at the federal level, id., and

“service contracting is now mainstream, championed

by leading officials across the political spectrum.” Jon

D. Michaels, Privatization’s Progeny, 101 Geo. L.d.

1023, 1025 (2013) (footnotes omitted). The

widespread shift of federal and state government

work to private organizations “is now ubiquitous in

military combat, municipal policing, rule

promulgation, environmental policymaking, prison

administration, and public-benefits determinations,”

among others. /d.; see also, e.g., Government by

(Jody Freeman & Martha Minow eds., 2009).

The Constitution generally allows

governments to delegate their operations to private

actors, and to determine the parameters of those

delegations. In some circumstances, such delegation

results in the private entity engaging in state action.

This includes situations in which the government

essentially controls the details of the nominally

private actor's work. “If the Fourteenth Amendment

jand other constitutional rights are] not to be

displaced,” such delegations ought not afford the

government a haven to bypass its constitutional

obligations. Brentwood Acad. v. Tennessee Secondary

Sch. Athletic Ass'n, 531 U.S. 288, 295 (2001).

There is no one state action test under existing

doctrine—nor, contrary to Petitioners’ position, are

there simply five. Rather, the crux of the question, in

its various formulations, is whether the actions of an

entity can be fairly attributed to the state.

Here, the answer is yes, because federal, state,

and city laws and policies combine to leave no

meaningful discretion to MNN, a nominally private

entity, over the decision at issue. The public access

channel MNN operates is, moreover, wholly a

creation of the state, and is, in all meaningful senses

here, property in which the government retains a

proprietary interest. New York City negotiated with

its cable operator to preserve a proprietary interest

in the public access channel, and subsequently

designated MNN as its agent to administer the

channel for it. Access to the channel remains free to

the public by law, further illustrating the channel's

essentially public character. MNN is thus not only

subject to regulations that divest it of any

independent editorial discretion; it is charged with

carrying out, without discretion, New York’s plan for

the provision of a government service, free of charge,

over a public easement.

The combination of federal, state, and city

laws and policies that governs MNN compelled the

creation of the public access channel, selected MNN

to run it, and established the rules for what content

MNN must broadcast (all First Amendment

protected content) and how it must schedule

programming (on a first come, first served basis).

This delegation of authority to run a government

service on property in which the government retains

a proprietary interest removes any private judgment

from MNN’s content decisions. It leaves MNN with

only the task of implementing the government-

mandated “first-come, first-served” rule for any First

Amendment protected content. Accordingly, MNN’s

content decisions are properly attributable to the

state, not to independent private judgment—because

in its content decisions, MNN literally has no

authority to exercise independent private judgment.

The fact that MNN may have misapplied the

“first-come, first-served” rule that by law governs its

content decision-making does not alter the result. If

MNN had turned Respondents away on the ground

that it deemed their speech unprotected,

Respondents would have a First Amendment claim,

even if MNN misapplied the rule. The same holds

true here. Because the state has essentially occupied

the field and left no discretion to MNN in carrying

out the government's terms with respect to any

content decision, MNN’s every content decision is

attributable to the state.

Holding that MNN is a state actor for the

limited purpose of its content decisions will have

little, if any, bearing on the work of public access

channel operators in other places, which function

under distinct statutory regimes. Governments easily

can—and do—choose to set up their public access

channels in ways that do not make the organizations

running them state actors. Had New York chosen to

give MNN broad editorial discretion to adopt, for

example, “programming in the public interest,” to

profile issues of local concern, or to cater specifically

to children—as other states and !ocalities have

chosen to do—MNN’s decision to refuse to broadcast

particular content might not constitute state

action. The overwhelming majority of states do not

require their channel operators to broadcast al!

content protected by the First Amendment on a first-

come, first-served basis.

Resolving this case on the grounds asserted

here will also have no implications for social media

platforms and other private media outlets. The

parade of horribles invoked by Petitioners and some

amici, including the Chicago Access Corporation

(“CAC”), the Electronic Frontier Foundation (“EFF”),

and the Cato Institute (“Cato”), is unfounded.

A private entity's voluntary choice to accept content

indiscriminately has no First Amendment or state

action implications precisely because it is the private

entity's choice, not the state’s regulation, that

determines the ultimate decision. But MNN did not

“choose” to adopt a “first-come, first-served” content

rule; that rule was imposed upon it by New York as a

condition of operating the public access channel.

To find state action where the state itself eliminates

private discretion over the administration of a

government service on property in which the

government retains a proprietary interest has no

implications for private entities that choose, of their

own free will, to operate platforms on a first-come,

first-served, or any other, basis.

STATUTORY AND REGULATORY

BACKGROUND

Respondents DeeDee Halleck and Jesus

Papoleto Melendez challenge MNN’s decision to ban

the broadcast of their video and the subsequent

consequences of that ban, including Respondents’

suspensions from broadcasting other content on

MNN. As set forth below, MNN’s decision about

whether to broadcast particular content is entirely

governed by a combination of federal, state, and city

laws, the requirements of which are also reflected in

a contract between MNN, a public channel

operator, and Time Warner, a cable operator,

pursuant to requirements imposed by the City.

I. Federal Law

lor a cable operator to reach subscribers in a

particular region, it must obtain a franchise from the

local government. Federal law—specifically, the

Cable Communications Policy Act of 1984 (the “1984

Cable Act”)—allows local governments to require, as

part of any such franchise, that the cable operator

designate channel capacity for public, educational, or

government (“PEG” or “public access”) use. 47 U.S.C.

§ 531(b). If a local government chooses to require

public access channels, as most do, the Act also

endows local governments with the authority to

“enforce any requirement in any franchise regarding

the providing or use of [public access] channel

capacity.” Id. § 531(c).

Pursuant to the 1984 Cable Act, public access

channels are thus entirely the creation of local or

state governments—-and if the governments so

choose, can be operated as public forums. The House

Report for the 1984 Act described public access

channels as “the video equivalent of the speaker's

soap box or the electronic parallel to the printed

leaflet. They provide groups and individuals who

generally have not had access to the electronic media

with the opportunity to become sources of

information in the electronic marketplace of ideas.”

H.R. Rep. No. 98-934 (1984), reprinted in 1984

U.S.C.C.A_N. 4655, 4667.

In this respect, the 1984 Cable Act enshrined

prior practices. Manhattan's first public access

stations, for example, were established in the early

1970s. Resp. Br. 6. Those channels relied on “cable or

optical fibers strung aboveground or buried in ducts

to reach the homes or businesses of subscribers.”

Turner Broad. Sys. Inc. v. FCC, 512 U.S. 622, 628

(1994). Installation of the cables often required the

physical uprooting of public streets to enable the

establishment of the cable system. /d. In those early

days of cable television, public access channels were

largely governed by franchise agreements between

local governments and cable operators. Resp. Br. 4

(citing Denver Area Educational Telecommunications

Consortium, Inc. v. FCC, 518 U.S. 727, 788 (1996)

(Kennedy, J., concurring in part, concurring in the

judgment in part, and dissenting in part)).

Although the 1984 Cable Act disallows cable

operators (here, Time Warner) from exercising

“editorial control” over any public access channel, §

531(e), it leaves significant discretion to state and

'ncal governments about whether, and if so how, to

run such channels. See id. § 531(b) (stating that a

local government “may require rules and procedures

for the use of [public access] channel capacity”).

Accordingly, different states and localities have

chosen to run their public access channels quite

differently, as reflected in their statutes and in many

operating entities’ ultimate programming policies. As

we show below, in its choice to eliminate any content

discretion from the public access channel operator,

New York stands virtually alone.

2. New York State Law

New York’s statutory scheme for public access

channels is highly prescriptive. It requires local

governments to establish a public access channel as

part of any cable franchise above a certain size, and

to designate an “entity” to operate the channel. N_Y.

Comp. Codes R. & Regs. tit. 16, §§ 895.1(f,

895.4(b)(1), (c)(1). And New York state law sets forth

strict parameters for how that entity must make

broadcast decisions, both in terms of what to

broadcast and when.

9

First, New York law requires that a public

access channel operator broadcast any content that is

protected by the First Amendment. New York law

defines “public access channel” as “a channel

designated for noncommercial use by the public on a

first-come, first-served, nondiscriminatory basis.”

Id. § 895.4(a)(1) (emphasis added); see also Resp. Br.

27 n.9 (noting that MNN accepts that state law bars

it from exercising editorial discretion). This means

that the public access channel operator must

broadcast material without reference to its content,

unless the content is not protected by the

Constitution. See 47 U.S.C. § 559 (making it a federal!

crime to transmit unprotected content); see also

Community Access Organization “CAO” Grant and

Use Agreement by and Between Time Warner

Entertainment Company, L.P. and Manhattan

Community Access Corporation d/b/a Manhattan

Neighborhood Network § 4.1 (“CAO Agreement”)

(requiring MNN to comply with all local, state, and

federal laws with respect to program content).

Thus, MNN does not have the freedom to choose

among the virtually infinite varieties of protected

centent; if the content is protected, MNN must

broadcast it.”

Second, New York law requires the public

access channel operator to schedule all First

* New York further forbids cable franchisees (here, Time

Warner) from “exercis{ing] any editorial contro!” over protected

content, N.Y. Comp. Codes R. & Regs. tit. 16, § 895.4(c)(8), and

municipalities from “exercis[ing] any editorial control over any

use by the public of a public access channel except as may be

permitted by law.” Jd. § 895.4(c)(9).

10

Amendment protected content on a “first-come, first-

served, nondiscriminatory basis.” N.Y. Comp. Codes

R. & Regs. tit. 16, § 895.4(c)(4) (emphasis added).

Together, these provisions’ eliminate any

independent’ editorial discretion over content

selection or scheduling.

Third, New York law establishes public

oversight over the public access channel operator's

content and scheduling decisions. It requires the

public access channel operator to maintain records

about how it fulfills its broadcasting duties by

collecting the names and addresses of all persons

using or requesting to use any public access channel.

Id. § 895.4(c)(10). The law also requires the operator

to make those records “available for public inspection

for a minimum of two years.” /d.

In combination, these regulations leave MNN

no meaningful discretion about what content to

broadcast or when; instead, New York law dictates

the terms of all broadcast decisions and MNN must

simply carry them out, subject to public oversight.

This combination of regulations is exceedingly rare.

It is entirely the result of the state’s regulatory

choices, and is not the approach taken by nearly any

other state, or by New York in regulating any other

broadcast or cable channels.*

* Amici have been able to identify only two other states and a

small number of local governments that also mandate this rule:

Rhode Island, Hawaii, St. Louis, MO, and some towns in

Minnesota. See, eg., 815 RI. Admin. Code § 10-05-1.14.1;

St. Louis City Ordinance 8.29.140. Some other state and local

governments also offer a “first come, first served” scheduling

rule—but only as one of many options available to its public

1]

3. New York City Law

New York City (“the City”) further entrenches

this regulatory system through its agreements with

cable franchisees. As required by state law, when the

City entered into franchise agreements’ with

Manhattan-area cable operators, it created public

access channels and negotiated a proprietary interest

in them for public access. See Resp. Br. 34.

Time Warner Cable (“TWC” or “Time Warner’) is the

City’s current franchisee, and the City requires TWC

to dedicate six channels to public access content. /d.

And, pursuant to the Manhattan Borough President’s

authority under the agreement, the City has

designated MNN to administer the channels.

See 2008 Cable Franchise Agreement by and between

The City of New York and Time Warner

Entertainment Company, L.P., §§ 1.18, 8.1.7-8.1.12

(“Franchise Agreement”).

To carry out these requirements, TWC and

MNN entered into another agreement, under which

MNN must “comply with all applicable local, state,

and federal laws with respect to program content on

the Public Access Channels,” including the first-

come, first-served nondiscriminatory rule, and the

prohibition on broadcasting content that is not

protected by the First Amendment. See CAO

Agreement § 4.1.

access channel operators. See, eg., Minn Stat. Ann §

238.084(z) (expressly authorizing municipalities to determine

whether or not public access channels must be “available for use

by the general public on a _ first-come, first-served,

nondiscriminatory basis”); West Sacramento Channel 21

Operating Rules and Procedures §§ 9.1, 10.1.

12

Further, the City dictates the terms under

which TWC provides multi-million dollar grants to

MNN and how such funds will be used. Franchise

Agreement § 8.3; CAO Agreement §§ 2.1—2.3. Finally,

the City retains some governmental influence over

MNN’s board of directors: the Manhattan Borough

President appoints two individuals to MNN’s Board

of Directors, which currently includes ten directors,

one director emeritus, and two non-voting members.

MNN Staff, Manhattan Neighborhood Network,

https://perma.cc/A2VX-7QUF; see also Resp. Br. 7

n.l.

4. Other State and Local Schemes Differ

Markedly from New York’s

Public access channels come in many forms.

Denver Area, 518 U.S. at 762 (describing the wide-

ranging “system of public, private, and mixed

nonprofit elements [that], through its supervising

boards and nonprofit or governmental access

managers, can set programming policy and approve

or disapprove particular programming services”).

Most states and local governments have rules

governing public access channels, but, unlike New

York, the vast majority do not seek to eliminate all

content discretion of the channel operator. Rather,

most state and local laws prescribe broad goals for

public access channel operators, and leave the

operator substantial room for independent editorial

judgment.

Tennessee, for example, has defined “PEG

programming’ as “local interest programming,” such

as local government meetings, community events,

educational programming, and community news.

Tenn. Code Ann. § 7-59-309. Similarly, in Coeur

13

d’Alene, Idaho, public access channel operators are

directed to broadcast “information concerning local

government and public education.” Coeur d'Alene,

Idaho, Mun. Code § 2.100.040.

In Illinois, local governments choose to give

their public access channel operators discretion.

Chicago Access Network Television (“CAN TV”),

administered by amicus CAC, for example, has the

discretion to “impose reasonable limitations” in order

to facilitate a number of goals, _ including

“representative diversity of programming,” “overall

composition and flow,” “building viewership with

a viable program schedule,” and “scheduling

flexibility.” CAN TV Access User Manual § II.A,

https://cantv.org/wp-content/uploads/2018/11/2018-

User-Manual-1.pdf. In addition, CAN TV defines its

own scheduling priorities, which give preference to

local and timely programming. /d. § I1.B.

In Springfield, Ohio, public access channel

operators can broadcast “accurate information on

local municipal government affairs, on matters which

would promote the public peace, health, safety,

welfare and attractiveness of the community and on

matters which would promote responsible citizenship

in the community.” City of Springfield, Ohio, Codified

Ordinances § 121.04. These standards leave broad

discretion for content choices by the public access

channel operator.

Oklahoma leaves its municipalities the choice

of whether or not to require public access channels at

all. Where public access channels are established,

Oklahoma law gives their operators the option of

“provid|[ing] a ‘family friendly tier of video services in

lieu of . . . public access.” Okla. Stat. Ann. tit. 11,

14

§ 22-107.1(D) (emphasis added).

Los Angeles takes perhaps the most

discretionary approach. There, the Cable Television

Access Corporation exercises its discretion to

broadcast what it deems “the ‘Best Of Public Access

programming in the City of Los Angeles.” Public

Access Guidelines, L.A. Cable Access Corp.,

https://perma.cc/JE7W-P87H.

In addition to discretion to make content

decisions, other state and local governments also

offer public access channel operators varying

amounts of discretion about scheduling. For example,

in West Sacramento, California, public access

channel operators can schedule programming

“according to particular themes (e.g., public affairs,

sports, ethnic, etc.)” and based on the “production

quality of programs.” West Sacramento Channel 21

Operating Rules and Procedures § = 9.1,

https://www.cityofwestsacramento.org/home/showdoc

ument?id=7 12.

As these examples show, state and local

governments can decide to give public access channel

operators broad editorial discretion. And they have

done so in a wide variety of ways, creating discretion

to do everything from airing the “best of’ content to

profiling issues of local concern to catering

specifically to children. But states may also choose,

as New York has here, to take full responsibility for

content selection by dictating the terms in such a

way as to eliminate private editorial judgment

altogether.

ARGUMENT

THE STATE ACTION INQUIRY IS

DESIGNED TO IDENTIFY WHEN THE

STATE IS RESPONSIBLE FOR A

PARTICULAR ACTION.

MNN should be deemed a state actor for

purposes of its content decisions because it is New

York, not MNN, that has determined the rules that

govern all content decision-making on a channel

designated by law for free government service, and

those rules deny MNN any independent editorial

control. By definition, any content decision MNN

makes is therefore an implementation of New York’s

terms, which wholly control content aired on its

public access channel.

The state action inquiry exists to determine

whether nominally private conduct can “be fairly

attributable to the State.” Lugar v. Edmondson Oil

Co., 457 U.S. 922, 937 (1982); see also Jackson v.

Metro. Edison Co., 419 U.S. 345, 351 (1974)

(formulating the inquiry as whether the action “may

be fairly treated as that of the State itself”).

This inquiry is essential for two reasons. On

the one hand, it allows courts to preserve “an area of

individual freedom by limiting the reach of federal

law;” on the other, it “assure[s] that constitutional

standards are invoked when .. . the State is

responsible.” Brentwood, 531 U.S. at 295 (internal

marks and alterations omitted). The latter assurance

is necessary because “[t]he Constitution constrains

governmental action ‘by whatever instruments or in

whatever modes that action may be taken.” Lebron

v. Natl R.R. Passenger Corp., 513 U.S. 374, 392

16

(1995) (quoting Ex parte Virginia, 100 U.S. 339, 346-

347 (1879)). Given this combination of interests,

properly applying the state action inquiry requires a

fine balance. Expanding the reach of state action too

far could intrude impermissibly on the freedom of

private actors, who are generally not subject to the

Constitution even when they perform functions at

the government's behest or subject to regulation. At

the same time, if the Court is too restrictive about

identifying state action, government actors would be

able to sidestep the Constitution by nominally

delegating authority to private entities while

actually retaining governmental control.

“What is fairly attributable [to the state] is a

matter of normative judgment, and the criteria lack

rigid simplicity.” Brentwood, 531 U.S. at 295. Indeed,

this Court has defined state action broadly as

“necessarily following upon ‘state participation

through any arrangement, management, funds or

property.” Burton v. Wilmington Parking Auth.,

365 U.S. 715, 722 (1961) (quoting Cooper v. Aaron,

358 U.S. 1, 4 (1958)). At the same time, the Court

has specified “a host of facts that can bear on the

fairness of such an attribution.” Brentwood, 531 U.S.

at 296.4 “Whether these different tests are actually

‘ For example, the Court has found state action where (1) “the

State creates the legal framework governing the conduct,” Nat

Collegiate Athletic Ass'n v. Tarkanian, 488 U.S. 179, 192 (1988);

(2) the State exercises “coercive power’ or (3) “significant

encouragement, either overt or covert,” Brentwood, 531 U.S. at

296 (quoting Blum v. Yaretsky, 457 U.S. 991, 1004 (1982)); (4) a

private actor and the state willfully engage in “joint activity,”

id. (quoting Lugar, 457 U.S. at 941); (5) an “agency of the State”

controls the private actor, id. (quoting Pennsylvania v. Board of

17

different in operation or simply different ways of

characterizing the necessarily fact-bound inquiry

that confronts the Court,” Lugar, 457 U.S. at 939,

“they all have a common purpose. [The] goal in every

case is to determine whether an action ‘can fairly be

attributed to the State.” Brentwood, 531 U.S. at 306

(Thomas, J., dissenting) (quoting Blum, 457 U.S. at

1004).

Achieving that goal requires a “necessarily

fact-bound” inquiry. Lugar, 457 U.S. at 939; see also

Evans, 382 U.S. at 299. Each case must be assessed

on its own facts, and while “[flacts that address any

of the [state action] criteria are significant, .. . no

one criterion must necessarily be applied.”

Brentwood, 531 U.S. at 303. Rather than requiring

strict adherence to any specific test, this Court has

insisted on “careful attention to the gravamen of the

plaintiffs complaint” in considering whether a case

presents state action. Blum, 457 U.S. at 1003.

Engaging in such an inquiry here reveals that

MNN’s challenged conduct was state action.

Directors of City Trusts of Philadelphia, 353 U.S. 230 (1957)

(per curiam)), (6) the State delegates a public function to a

private actor, id. (citing West v. Atkins, 487 U.S 42, 56 (1988));

(7) the private actor and government are “entwined,” either

through governmental policies or the government's involvement

in the private actors management or control, id. (quoting Evans

v. Newton, 382 U.S. 296, 299 (1966)); and more. As this list

shows, the dissenting judge below and Petitioners both

oversimplify existing doctrine by suggesting that there are five

discrete state action tests.

18

ALL OF MNN’S DECISIONS REGARDING

WHAT CONTENT TO BROADCAST ARE

STATE ACTION.

A. MNN’s Broadcast Decisions are

State Action Because State Law

Dictates a “First-Come, First-

Served” Policy That Leaves MNN

No Discretion Over Broadcast

Decisions in the Provision of a Free

Government Service.

MNN’s conduct in this case constituted state

action because government regulation wholly

determines MNN’s broadcast and _ scheduling

decisions: under New York law and the contracts

required by the City, MNN had to broadcast

Respondents’ program, as First Amendment

protected content, “on a first-come, first-served,

nondiscriminatory basis." N.Y. Comp. Codes R. &

Regs. tit. 16, § 895.4(a)(1).

MNN is, moreover, providing a government

service free of charge over a public easement. As

described above, New York City negotiated with

TWC to preserve a proprietary interest in the public

access channel, see Resp. Br. 34, and designated

MNN to administer that channel, id. at 36. It retains

the power to appoint two of MNN’s board members,

and it continues to require that access to the channel

remain free to the public by law.

These facts make all of MNN’s decisions about

what content to broadcast “fairly attributable to the

State.” Lugar, 457 U.S. at 937. The Court has

recognized that a regulatory regime that dictates the

choice a private actor must make establishes state

19

action. In Adickes v. S.H. Kress & Company, for

example, this Court held that where “the . . . act by

the private party is compelled by a statutory

provision . . . it is the State that has commanded the

result by its law.” 398 U.S. 144, 171 (1970). In

Adickes, the Court held that “a _ state-enforced

custom” dictating a particular result was enough to

create state action. Here, express state law displaces

all independent editorial judgment and wholly

dictates MNN’s content decisions.

Similarly, this Court has held that nominally

private action should be treated as state action when

it “becomes not [the purportedly private actor's]

voluntary choice but the State’s choice.” Barrows v.

Jackson, 346 U.S. 249, 254 (1953). In Barrows, the

state’s power to impose sanctions on a private actor

for making a particular choice transformed the

private actors choice from voluntary to state-

determined. Here, the same effect is created by the

fact that the 1984 Cable Act endows local

governments with the authority to “enforce any

requirement in any franchise regarding the providing

or use of [public access] channel capacity,” 47 U.S.C.

§ 531(c), and by New York’s choice to impose a “first

come, first served” regulatory requirement for all

protected speech. N.Y. Comp. Codes R. & Regs. tit.

16, §§ 895.4(a)(1), (c)(4).

The state action here is bolstered by the fact

that MNN and New York City are “willful

participants] in [the] joint activity,” Brentwood, 531

U.S. at 296, of maintaining the public access channel.

In essence, the City entered into franchise

agreements that allowed Manhattan-area cable

operators to build infrastructure on city property, in

exchange for which the City required them to provide

public access channels. See Resp. Br. 34. The City

retained operational authority over the public access

channels, in the form of what might be described as a

technological easement. The City designated MNN as

its agent to operate the public access channel in

1991, under strict terms that control its every

content decision. /d. 7, n.1. MNN ‘jas, in turn,

entered into the CAO Agreement, which requires

MNN to “comply with all applicable local, state, and

federal laws with respect to program content on the

Public Access Channels”—again including the first-

come, first-served rule for protected speech. CAO

Agreement § 4.1.

The critical role played by the “first-come,

first-served” law in the state action inquiry here is

made clear by two cases in which this Court declined

to find state action, precisely because state law did

not dictate the private entity’s decision. In Blum v.

Yaretsky, the Court found no state action where

statutes and regulations required physicians or

nursing homes to complete forms relating to patient

discharge or transfer decisions, but did not mandate

the substance of those decisions, which “ultimately

turnfed] on medical judgments made by private

parties according to professional standards that are

not established by the State.” 457 U.S. at 1008

(emphasis added). Similarly, in American

Manufacturers Mutual Insurance Co. v. Sullivan, the

Court held that private insurers are not state actors

because “the decision to withhold payment, like the

decision to transfer Medicaid patients to a lower level

of care in Blum, is made by concededly private

parties, and turns on judgments made by private

parties without standards established by the State.”

21

526 U.S. 40, 52 (1999) (internal marks omitted and

emphasis added). Here, by contrast, the standard

governing MNN’s choice as to content has been

established by the state, and has wholly displaced

private decision-making, such that MNN’s content

decisions cannot be said to be its own private

judgments.

When government standards, rather than

private-sector standards, dictate the result a

nominally private actor must reach, circuit courts

have accordingly found state action. For instance, in

Focus on the Family v. Pinellas Suncoast Transit

Authority, the Eleventh Circuit found that a

nominally private actor responsible for approving or

rejecting advertisements in bus shelters engages in

state action “where the state contractually requires

the private actor to take particular actions—e.g., to

reject proposed advertisements under certain

specifically delineated circumstances.” 344 F.3d

1263, 1278 (11th Cir. 2003).

Similarly, in Catanzano by Catanzano ov.

Dowling, the Second Circuit held that the decisions

made by home health care service providers about

whether and how to provide home health care to

Medicaid recipients constituted state action because

“[slignificantly, unlike in Blum, the decisions made

by the [home health care providers] are not purely

medical judgments made according to professional

standards. Instead, [a New York statute] requires

the[m] to determine whether the health and safety

of the recipient can be maintained ‘as defined by

the department of health in regulation.” 60 F.3d 113,

119 (2d Cir. 1995); see also Kraemer v. Heckler, 737

F.2d 214, 220 (2d Cir. 1984) (‘[T]here is a far

22

stronger basis for finding state action in the decisions

jof nominally private parties} which evaluate

entitlement to Medicare benefits” in part because the

“decision-making process itself appears to be

governed largely by statute, regulation, HCFA

manuals, and transmitt.! letters.”).

In United States v. Stein, 541 F.3d 130 (2d Cir.

2008), the Second Circuit likewise found that an

accounting firm’s decisions about whether to pay

defendants’ legal fees based on whether or not they

“cooperated” constituted state action in part because

the government defined the standard for what

constituted “cooperation.” Unlike the physicians and

nursing homes in Blum, the court explained, the firm

in Stein “was never ‘free to define’ [the relevant

standard] independently” of the government. /d. at

149. Rather, the government defined cooperation,

and the private entity was bound by that definition.

Id.

Similarly, MNN is not “free to define” what

content to air on its public access channels. New

York has removed any private discretion by requiring

MNN to grant airtime to any content protected

by the First Amendment in the order that

MNN receives it. See N.Y. Comp. Codes R. & Regs.

tit. 16, §§ 895.4(a)(1), (c)(4). As in Focus on the

Family, Catanzano, and Stein, the government has

set forth the standards by which the nominally

private actor, MNN, must make its decision. MNN

cannot rely on any independent criteria or otherwise

exercise independent discretion when determining

whether to broadcast particular content. Accordingly,

its broadcast decisions constitute state action.

23

By contrast, had New York permitted MNN to

operate a public access channel pursuant to a broad

delegation of editorial control—for example, by

directing it to broadcast programs that are of local

interest, as in Tennessee; by specifying only that it

be family friendly, as in Oklahoma; or by permitting

it to choose to focus on building viewership and

representing diversity, as in Chicago—MNN would

be left substantial discretion to make independent

decisions about what content to broadcast. Those

decisions would generally not be fairly attributable to

the state, precisely because the state rule would have

afforded the private entity broad latitude for its own

private decision-making. Here, instead, New York

law essentially occupies the field with respect to

content selection, compelling MNN to operate the

station on a “first-come, first-served” basis without

any of 1ts own editorial discretion.

Under this narrow approach, MNN’s other

actions—for example, its employment or contracting

decisions—would not necessarily be state action. The

question presented by this case is merely whether

MNN is a state actor for the purpose of selecting and

scheduling the content it broadcasts. The fact that

one part of a private entity's conduct constitutes

state action need not rob it of its private designation

for other conduct. See, e.g., Polk Cty. v. Dodson, 454

U.S. 312, 325 (1981) (holding that, while a public

defender is not engaging in state action when she

advocates for her client, she may be engaging in state

action when she “perform|s] . . . functions” for the

state, notwithstanding the fact that the state is her

employer in both cases). MNN is not necessarily a

state actor with respect to the many other activities

as to which it enjoys discretion to act independently.

24

It is, however, a state actor for the purpose of

selecting and scheduling content.

B. The Fact that MNN’s Particular

Decision Apparently Misapplied the

State’s Rules Does Not Defeat State

Action.

Amicus Chicago Access Corporation (“CAC”)

argues that because MNN’s action seems to have

contravened, rather than enforced, the “first-come,

first-served” rule, MNN did not act “under color of

state law,” and its actions are not attributable to the

state. CAC Amicus Br. 9—11. But because MNN has

been delegated authority to administer a government

service over a public easement under a “first-come,

first-served” rule that eliminates any private

discretion over content, MNN’s every content decision

is controlled by, and therefore attributable to, the

state.

MNN cannot make any content decisions

except pursuant to New York’s content rule, which

affords MNN no independent editorial judgment.

That MNN may have misapplied state law does not

mean that it is not a state actor, any more than the

fact that a police officer violates his departmental

rules on use of lethal force relieves his actions from

constitutional constraint. Respondents claim that

MNN’s application of the New York state rule to

them violated the First Amendment. Because the

state is the source of the rule, the city delegated

authority to implement the rule to MNN, and the

state rule leaves MNN no independent private

discretion, MNN’s actions are properly attributable

to the state.

This can be illustrated by a slight variation on

the facts. If MNN rejected Respondents’ content on

the ground that it deemed the speech unprotected by

the First Amendment, surely Respondents would

have a First Amendment claim, precisely because

MNN, as the city’s delegate, would be implementing

a state-imposed rule that affords no room for

discretion. (Because speech is either constitutionally

protected or not, there is no room for discretion.)

Whether MNN erred in concluding that the content

in question was unprotected would not make its

actions private rather than state action. So, too, here.

The fact that MNN may have misapplied the “first-

come, first served” rule does not transform state

action into private action.

In this way, this case is akin to a state official

“in the exercise of the authority with which he is

clothed, misus[ing] the power possessed to do a

wrong forbidden by the [Constitution].” Home Tel. &

Tel. Co. v. City of Los Angeles, 227 U.S. 278, 287

(1913); see also United States v. Classic, 313 U.S.

299, 326 (1941). Such violations are governed by the

Constitution regardless of the violation of state law.

Classic, 313 U.S. at 326.

CAC relies heavily on Lugar. But that case is

distinguishable. There, the Court held that the mere

fact that a private party invokes a _ statutory

prejudgment attachment remedy does not transform

the private party's wholly discretionary choice to

invoke the attachment regime into state action. /d. at

939. Lugar held that “[ajction by a private party

pursuant to this statute, without something more,

[i]s not sufficient to justify a characterization of that

party as a ‘state actor.” /Jd. But here, there is

26

“something more.” Unlike the private party in

Lugar, which had full discretion to seek attachment,

here MNN has no discretion whatsoever with respect

to broadcast content decisions. The state rule wholly

displaces private decision-making. And MNN is not

any private party, but an entity explicitly delegated

authority to administer access to a government

service over a public easement.

Cc. The Court Need Not Reach the

Public Function or Public Forum

Questions to Resolve this Case.

Because state action flows from the state’s

decision to leave MNN no independent editorial

discretion whatsoever in administering its public

access channel, the Court need not reach the

question of whether this or any other public access

channel is a public forum—or whether maintenance

of a public forum constitutes a public function, as

Respondents maintain. The fact that federal, state,

and city law have combined to dictate the only

decision MNN can properly make about whether and

when to broadcast content on the public access

channel is sufficient for the state action inquiry.

Accordingly, the Court can follow the approach it

took in Denver Area and decline to address whether

public access channels in general constitute public

forums. It is “unwise and unnecessary definitively to

pick one analogy or one specific set of words” as

public access channels come in many different forms.

Denver Area, 518 U.S. at 742.

The question presented by this case is not

whether all public access channels are public forums,

or whether all public access channel operators are

state actors. It is only whether MNN in particular is

27

a state actor for purposes of content decisions under

the special rules imposed by New York and New

York City. The state action inquiry asks whether

conduct can fairly be attributed to the state. The

public forum inquiry asks whether a particular space

or medium must be open to the public for speech

purposes, either as a matter of tradition or through

government designation. These are distinct inquiries.

Of course, the specific rule New York has

chosen to impose—first-come, first-served for any

content protected by the First Amendment—.is highly

relevant to both the state action and public forum

inquiries. The choice to open a channel for speech on

a first-come, first-served basis strongly supports the

establishment of a designated public forum. See, e.g.,

Perry Educ. Ass'n v. Perry Local Educators’ Ass’n,

460 U.S. 37, 45-46 (1983) (noting that government

action in both traditional and designated public

forums is bound by the same standards). And New

York’s “first-come, first-served” rule also renders

MNN’s content decisions attributable to the state

because the state has so completely displaced MNN’s

independent editorial judgment.

But while the facts of this case may support

both a finding of state action and public forum

status, the underlying theories are ultimately

distinct, and the Court need not determine whether

or not public access channels generally, or under

New York law specifically, constitute public forums

in order to resolve this petition.

Nor need the Court determine whether

maintaining a public access channel is a “public

function” traditionally reserved to government. Even

if it is not, the combination of laws applicable here

displaces private judgment by wholly dictating all

content decisions with respect to a free service

provided on property in which the state maintains a

proprietary interest. That is sufficient to establish

state action.

A finding of state action here will not

implicate the status of the vast majority of other

public access channel operators, much less of wholly

private actors that operate large-scale

communications platforms, like Facebook, Twitter,

and YouTube. It is a red herring to suggest that if

Petitioners are state actors in this case, all other

public access channels and social media platforms

are, too. As shown above, most states and localities

afford substantial independent editorial discretion to

their public access channel operators. A finding of

state action here, based on the complete preclusion of

independent editorial discretion, will have no bearing

on the status of different public access channel

arrangements.

D. A Finding of State Action Here Will

Have No Untoward Consequences

for Private Media Providers.

Finally, finding MNN to be a state actor for

purposes of its content decisions would have no

implications whatsoever for private social media

platforms that choose content on their own terms. It

is settled law that the mere fact that private entities

open their property for public use—which is the

similarity some amici appear to see between MNN

and social media companies, see, e.g., EFF Br. 4—10,

Internet Association Br. 16, Cato Br. 13—does not

transform the space into a public forum. Hudgens v.

Nat'l Labor Relations Bd., 424 U.S. 507, 519 (1976).

Indeed, as amici argue, a private platform’s

independent decision to accept content of a particular

type is generally a manifestation of the private

party’s own expressive choices, itself likely protected

by the First Amendment and other constitutional

provisions. Nor does a private entity's independent

choice to accept a broad variety of content even

remotely create state action.

The facts presented by this case could not be

more different from the operation of social media

companies. Unlike social media companies, MNN has

authority to run the public access channel only

because that authority has been delegated to it by

the city and state, and the public access channels it

manages exist only because the city has demanded

that they be created as a condition on cable

operators’ access to public rights of way. Social media

platforms were not created by the government, nor

are their operators chosen by the government.

Moreover, as discussed at length above, the statutory

regime governing the operation of public access

channels in New York takes a uniquely heavy hand

in dictating MNN’s content decisions; social media

companies’ content decisions are not governed by

regulation that is in any way similar. To the

contrary, federal law generally shields them from

liability for how they moderate content created by

third parties. See 47 U.S.C. § 230(c).6

® Lower courts have considered whether public officials who

block individuals from commenting on their social media pages

violate the First Amendment. See, e.g., Davison v. Randall, No.

17-2002, 2019 WL 114012 (4th Cir. Jan. 7, 2019), as amended

(Jan. 9, 2019); Leuthy v. LePage, No. 1:17-CV-00296-JAW, 2018

30

In general, common carriers are likewise

entirely different. The fact that a private business is

heavily regulated does not make it a state actor.

Jackson, 419 U.S. at 350. Here, the state has not

merely sought to regulate a private business. Rather,

it has used its sovereign authority to negotiate a

public proprietary interest in public access channels,

and then delegated the implementation of a free

government service on that channel to MNN

pursuant to strict terms that wholly control its

content decisions.

Thus, if the Court conducts the careful, fact-

bound inquiry as suggested here, the parade of

horribles envisioned by Petitioners and other amici

will not come to pass. Unlike MNN, public access

channel operators in most states are not statutorily

required to broadcast all protected speech on a first-

come, first-served basis. And the circumstances of

social media sites and other online platforms lie even

further afield. This case asks the Court only to

determine whether MNN engaged in state action,

and the Court can easily answer “yes” without

Inst. at Columbia Univ. v . Trump, 302 F. Supp. 3d 541

(S.D.N_Y. 2018), appeal docketed, No. 18-1691 (2d Cir. June 5,

ey Ronee chen hy ag bey nr rte ae

public official's social media page constitutes a public forum.

This case presents only an analog of the first question, and does

not implicate the second—much less whether all socal media

platforms are public forums, a question not raised by any of

these cases.

disturbing the operation of nearly any other public

access channel or that of online platform operators.

CONCLUSION

For the reasons stated above, the judgment of

the United States Court of Appeals for the Second

Circuit should be affirmed.

Respectfully Submitted,

Arthur N. Eisenberg David D. Cole

NEW YORK CIVIL Counsel of Record

LIBERTIES UNION AMERICAN CIVIL LIBERTIES

FOUNDATION UNION FOUNDATION

125 Broad Street 915 15th Street, NW

New York, NY 10004 Washington, DC 20005

(202) 675-2330

Amanda Shanor dcole@aclu.org

THE WHARTON SCHOOL

UNIVERSITY OF Vera Eidelman

PENNSYLVANIA AMERICAN CIVIL LIBERTIES

3730 Walnut Street UNION FOUNDATION

Philadelphia, PA 19104 125 Broad Street

Dated: January 18, 2019

New York, NY 10004

32