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

No. 17-1702

In the

Supreme Court of the Anited States

MANHATTAN COMMUNITY

ACCESS CORPORATION, et al.,

Petitioners,

Vv.

DEEDEE HALLECK, et al.,

Respondents.

On Writ of Certiorari to

the United States Court of

Appeals for the Second Circuit

BRIEF AMICUS CURIAE OF

PACIFIC LEGAL FOUNDATION AND

TECHFREEDOM IN SUPPORT OF PETITIONERS

DANIEL M. ORTNER JAMES M. MANLEY

Pacific Legal Foundation Counsel of Record

930 G Street Pacific Legal Foundation

Sacramento, CA 95814 3217 E. Shea Blvd., #108

Phone: (916) 419-7111 Phoenix, AZ 85028

Email DOrtner@pacificlegal org Phone: (916) 419-7111

Email: JManley@pacificlegal org

BERIN SZOKA THOMAS A. BERRY

TechF reedom Pacific Legal Foundation

110 Maryland Ave. N.E. 3100 Claredon Blvd.

Suite 409 Suite 610

Washington, DC 20002 Arlington, VA 22201

Phone: (202) 803-2867 Phone: (916) 419-7111

Email: bezoka@techfreedom.org Email: TBerry@pacificlegal org

Counsel for Amici Curiae Pacific Legal Foundation and TechFreedom

QUESTIONS PRESENTED

1. Whether the Second Circuit erred in rejecting this

Court’s state actor tests and instead creating a per se

rule that private operators of public access channels

are state actors subject to constitutional liability.

2. Whether the Second Circuit erred in holding—

contrary to the Sixth and D.C. Circuits—that private

entities operating public access television stations are

state actors for constitutional purposes where the

state has no control over the private entity's board or

operations.

ul

TABLE OF CONTENTS

PAGE

QUESTIONS PRESENTED ...................2....ccccceeeeeeeeeeee i

SRD Se GE Se ED sicoccscerecensersecsocnsessemenintins iii

INTEREST OF AMICI CURIAE.......000000000000000000-0.0.. 1

INTRODUCTION AND

SUMMARY OF ARGUMENT ..........................cccceeeeee 2

FID cnnicepccesuiptiicininniniennsibiniinniatnniidinniniinanetin 4

|. THE SECOND CIRCUITS OVERBROAD

RULING RISKS TRANSFORMING VAST

SWATHES OF PRIVATE PROPERTY INTO

IE I visctenrcnninteiciiettieetucicadamhainaintinent denedeestntiiai 4

A. Mere Resemblance to a Public Forum

Cannot Transform Private Property.................. 9

B. Private Entities Do Not Become

State Actors Merely Because They

Channel Individual Speech .............................. 15

C. The Fact That Public Access Channels

Serve the Public Good Rather Than

Generate Profit Should Not Turn

Thome imto Public Poa ...........ccccccoscccceccecesccccseee 19

D. Scarcity Cannot Justify the Transformation

of Private Property into a Public Forum ......... 20

Se ee nncirecinastisisinrensitinnccentatiinsaiantienasceiensitinataniiil 24

i

TABLE OF AUTHORITIES

CASES

PAGE

Amalgamated Food Emp. Union Local 590

v. Logan Valley Plaza, Inc., 391 U.S. 308

(1968), abrogated by Hudgens v. N. L. R. B.,

ee a attettbieinittevtianinncreiinmiaeninions 11

Ashcroft v. Free Speech Coalition,

Lf eee 14

Blum v. Yaretsky,

QI ————EE—————— 5—7

Brandywine-Main Line Radio, Inc. v. F.C.C.,

Pols RU UR ll 13-14

Burton v. Wilmington Parking Auth.,

I, Ci aiiectnsnntntiinnssactonnsemnermiciniaies s

Burwell v. Hobby Lobby Stores, Inc.,

oO) eo SS | 19

City of Los Angeles v. Preferred Commce'ns, Inc.,

a a a icttinectnincnienitinemcnccennmenessen 15

Columbia Broad. Sys., Inc. v. Democratic

Nat. Comm., 412 U.S. 94 (1973) ............... 15, 20-21

Cyber Promotions, Inc. v. Am. Online, Inc.,

948 F. Supp. 436 (E.D. Pa. 1996).......................... 12

Denver Area Educational Telecommunications

Consortium, Inc. v. F.C.C.,

ee ee I vareticicisicmcepsipisinimaionnenanimntg passim

Evans v. Newton,

ee 6, 8

Green v. Am. Online, Inc.,

BE -eee 12

iV

PAGE

Hague v. Comm. for Indus. Org.,

gg EEL OE ae ee 10

Halleck v. Manhattan Cmty. Access Corp.,

882 F.3d 300 (2d Cir. 2018).........0....... ccc cceccc cece 7-8

Hurley v. Irish-Am. Gay, Lesbian & Bisexual

Grp. of Boston, 515 U.S. 557 (1995)... 18

Information Providers’ Coalition for

Defense of First Amendment v. F.C.C.,

928 F.2d 866 (9th Cir. 1991) ......0.. 00... 16

Int Soc. for Krishna Consciousness, Inc. v. Lee,

ER ERE SEE 10-11

Jackson v. Metro. Edison Co.,

fp Ee ener 6

Janus v. Am. Fed’n of State, Cty.,

& Mun. Employees, Council 31,

EEE ESA a 18

Langdon v. Google, Inc.,

474 F. Supp. 2d 622 (D. Del. 2007).............. 12

Lloyd Corp., Lid. v. Tanner,

Cg nee 11

Loce v. Time Warner Entm’t Advance/ Newhouse

P’ship, 191 F.3d 256 (2d Cir. 1999) ....00000 0... 19

Lugar v. Edmondson Oil Co.,

cd 5, 7

Minnesota Voters Alliance v. Mansky,

EE RAEI 1

Nat Inst. of Family & Life Advocates v. Becerra,

ee ey SE Ca cctrcrnsieritnscteinininiienccmnenssennmocs 18

National Socialist Party of America v.

Village of Skokie, 432 U.S. 43 (1977).................... 14

PAGE

Packingham v. North Carolina,

Ee ee 10

Perry Educ. Ass’n v. Perry Local

Educators’ Ass’n, 460 U.S. 37 (1983).................... 12

Prager Univ. v. Google LLC,

No. 17-CV-06064-LHK, 2018 WL 1471939,

EF Ee 8 6 eee 12

Prune Yard Shopping Ctr. v. Robins,

ok ER 17-18

Red Lion Broadcasting Co. v. F.C.C.,

Lt kf ene 20, 23

Soderholm v. Chicago Nat. League Ball

Club, Inc., 587 N.E.2d 517 (IL. App. 1992) .......... 20

Syracuse Peace Council v. F.C.C.,

867 F.2d 654 (D.C. Cir. 1989) .......0.0.000.0000-c eee. 13

Trustees of Dartmouth Coll. v. Woodward,

I i iesmmings 4-5

Turner Broadcasting System, Inc. v. FC.C.,

Tannen 15, 21-22

United States v. Stevens,

isi celeaticecieebnitiil 14

United States v. United Foods, Inc.,

I a neem naiainintion 18

Wilcher v. City of Akron,

498 F.3d 516 (6th Cir. 2007) ...............-0000---0-0... 7-8

RULES

ee I eaeepanenmieaineaniasinmnaidii 1

Bs Rh Be II ectecevasnnicinimontensnnsesamnssemenisencnssnsieenieeatoes 1

vi

PAGE

OTHER AUTHORITIES

Comcast, YouTube App on Xfinity X1 Overview,

https://www.xfinity.com/support/

articles/x 1-youtube-app-overview

(last visited Dec. 5, 2018)..............22...0....00200000-00--- 22

Federal Communications Commission,

18th Report, Annual Assessment of

the Status of Competition in the Market

for the Delivery of Video Programming................ 21

Free Speech TV, Manhattan News Network

Partners with Free Speech TV

(Dec. 21, 2016) https://freespeech.org/press-

releases/mnn-welcomes-free-speech-tv/ ......... 16-17

Report Concerning General Fairness Doctrine

Obligations of Broadcast Licensees,

Be BP CI isceciccscccimistnnsenencnsccessémncosons 13

Snider, Mike,

Cord cutting accelerates as pay TV loses I

million customers in largest-ever quarterly loss,

USA Today (Nov. 7, 2018) https://www.usatoday.com/

story/tech/talkingtech/20 18/1 1/07/cord-cutting-

accelerates- 1-m-customers-dropped-pay-tv-last-

quarter/1919471OO2/ 020... ce cece eceeeeeeeeeee enone 22

The 1% Visits El Barrio; Whose Community’,

YouTube (July 29, 2012), https://

www.youtube.com/watch?v=QEbDMTGEQ I xc ...... 22

Winkler, Adam,

We the Corporations (2018) .............2......cc.-c0ee--00e0e+ 5

|

INTEREST OF AMICI CURIAE!

Founded in 1973, Pacific Legal Foundation is a

nonprofit, tax-exempt corporation organized under

the laws of the State of California for the purpose of

engaging in litigation in matters affecting the public

interest. PLF provides a voice in the courts for

mainstream Americans who believe in_ limited

government, private property rights, individual

freedom, and free enterprise. PLF has long defended

the freedoms of speech and association, including

most recently before this Court in Minnesota Voters

Alliance v. Mansky, 138 S. Ct. 1876 (2018).

PLF’s interest in this case stems from its

concern that the Second Circuit’s decision would

radically curtail private property rights and freedom

of expression by imposing constitutional restraints

that are intended to limit the scope of the government

onto private individuals.

Founded in 2010, TechFreedom is a nonprofit,

non-partisan think tank dedicated to educating

policymakers, the media and the public about

technology policy. Tech reedom advocates for policies

that promote civil liberties, dynamism,

entrepreneurship, and permissionless innovation in

technology and telecommunications. TechFreedom

' Pursuant to this Court's Rule 37.3(a), all parties have consented

to the filing of this brief. Pursuant to Rule 37.6, Amicus Curiae

affirms that no counsel for any party authored this brief in whole

or in part, and no counsel or party made a monetary contribution

intended to fund the preparation or submission of this brief. No

person other than Amicus Curiae, ite members, or its counsel

made a monetary contribution to its preparation or submission.

does so through publishing white papers, holding

conferences and briefings, engaging with

policymakers, filing briefs, amicus briefs and

comments in regulatory proceedings across numerous

government agencies.

At the core of TechFreedom’s work is protecting

the First Amendment. The Second Circuit’s expansion

of the “public forum” doctrine is unconstitutional and

would actually reduce diversity of voices in American

discourse. In an age of rapid technological change, we

must not throw away the 200-year-old concept of a

separation between the rights and responsibilities of

private entities and government actors. The First

Amendment applies only to the former and attempts

to force governmental obligations on private actors

will entrench incumbent companies and stifle the

innovation that has resulted in such rapid and

positive change in the Internet ecosystem.

INTRODUCTION AND

SUMMARY OF ARGUMENT

This nation’s long-standing respect for private

enterprise, individual freedom, and private property

ownership has led to the most dynamic engines for

growth the world has ever known. When the sphere of

governmental authority is small and the room for

private ingenuity and liberty is expansive, there is

room for human flourishing and for unparalleled

achievement. Nowhere can this be seen more clearly

than with the growth of technology which has

transformed the way that human beings interact.

Today, individuals come together to exchange ideas

and debate about everything from celebrity gossip to

the foundational principles of the American Republic

in spaces that are owned and operated by private

parties. From television networks to Internet social

media sites, these privately created venues contribute

to a dynamic and robust marketplace of ideas. But

individuals dissatisfied with private control of these

forums seek to leverage government power to regulate

them out of existence or even to take them over.

This case involves one such private forum—a

television channel. While cable television networks

are regulated by an extensive and burdensome web of

federal, state, and city regulations, the network

nevertheless retains constitutional rights regarding

the content that it broadcasts on its channels. But

according to the Second Circuit because a particular

television channel operates for the public good and

encourages the exchange of ideas like a traditional

public forum its operation must be bound by the

limitations of the United States Constitution and the

private entity in charge of making programming

decisions cannot discriminate against any content

type or viewpoint. The Second Circuit's decision is so

broad that under its reasoning large swathes of

private property can be transformed into public

property, and many private parties could be restricted

and constrained as if they were state actors. If that

decision is allowed to stand it will have the

consequence of stifling competition and diversity in

the marketplace of ideas.

The Second Circuit’s decision is deeply flawed

in at least four respects. First, private property does

not become a public forum just because of its

resemblance to public fora. Second, television

networks and other private communications networks

are not merely conduits of the speech of others but

retain discreet First Amendment rights. Third, the

use of private property for the public good does not

result in the property being stripped of its private

character. Finally, scarcity of channels' of

communication cannot justify increasingly regulating

the use of private property and does not lead to the

transformation of that property into a public forum.

This Court must reverse the Second Circuit’s decision.

ARGUMENT

I

THE SECOND CIRCUIT'S

OVERBROAD RULING RISKS

TRANSFORMING VAST SWATHES OF

PRIVATE PROPERTY INTO PUBLIC FORA

The principle that a private corporation does

not become a governmental actor merely because it

has been granted permission or authority by the

government is one that has deep roots in our nation’s

history and legal tradition. Nearly 200 years ago in

the seminal case of Trustees of Dartmouth Coll. v.

Woodward, 17 U.S. 518, 629 (1819), the Supreme

Court considered whether the charter of Dartmouth

College could be amended by the state of New

Hampshire. New Hampshire argued that “the act of

incorporation [was] a grant of political power’ that

“create|d] a civil institution, to be employed in the

administration of the government.” Jd. at 629. Chief

Justice John Marshall rejected that argument,

emphasizing that the grant or charter of incorporation

does not “change[] the character of the institution, or

transfers to the government any new power over it.”

Id. at 638. Even though Dartmouth College had been

established in furtherance of public ends and had been

given its existence by the colonial government of New

Hampshire, it still retained its private character and

interest. See Adam Winkler, We the Corporations 145—

164 (2018) (describing the Dartmouth College decision

and its impact on the Supreme Court’s treatment of

corporations). Justice Marshall’s conclusion that the

government's power to regulate a corporation was

limited “resonated with the claims colonists made on

the limits on parliamentary power during the debates

over independence” and was consistent with “the

rhetoric of the Revolution.” Winkler at 161.

“Careful adherence” to the distinction between

private and governmental entities is vital because it

“preserves an area of individual freedom by limiting

the reach of federal law and federal judicial power.”

Lugar v. Edmondson Oil Co., 457 U.S. 922, 936 (1982).

This Court has diligently maintained that distinction,

see Blum v. Yaretsky, 457 U.S. 991, 1004 (1982) (“[t}he

mere fact that a business is subject to state regulation

does not by itself convert its action into that of the

State”), especially in the context of the First

Amendment where “governmental action, ordinarily

does not itself throw into constitutional doubt the

decisions of private citizens to permit, or to restrict,

speech . . . .” Denver Area Educational

Telecommunications Consortium, Inc. v. F.C.C., 518

U.S. 727, 737 (1996).

This Court’s precedent allows for two

exceptions to the general principle that private actors

do not become governmental actors even in the face of

extensive regulatory oversight. First, there is a

narrow carve-out for the “exercise by a private entity

of powers traditionally exclusively reserved to the

State.” Jackson v. Metro. Edison Co., 419 U.S. 345,

352 (1974). This power must be one that is

“traditionally associated with sovereignty, such as

eminent domain.” Jd. at 353. This Court has

emphasized that functions that are merely “affected

with a public interest” or “clothed with a public use”

do not qualify as “powers traditionally exclusively

reserved to the State.” /d. at 352. “The range of

government activities is broad and varied, and the fact

that government has engaged in a particular activity

does not necessarily mean that an _ individual

entrepreneur or manager of the same kind of

undertaking suffers the same _ constitutional

inhibitions.” Evans v. Newton, 382 U.S. 296, 300

(1966).

Second, an exception exists for “when it can be

said that the State is responsible for the specific

conduct” at question. Blum, 457 U.S. at 1004

(emphasis in original). The state must, in other words,

“exercise|]| coercive power or . . . provide[] such

significant encouragement, either overt or covert, that

the choice must in law be deemed to be that of the

State.” “Mere approval of or acquiescence in the

initiatives of a private party is not sufficient|.|” Jd.

The Court has utilized a slew of different tests for the

relevant inquiry such as the “public function test,” the

“nexus” test, the “state compulsion” test, and the “joint

action test.” Lugar, 457 U.S. at 939. These tests each

have their own idiosyncrasies, but they all boil down

to the same foundational question—is the private

actor in question so heavily controlled or compelled to

act by a state actor that its actions must be seen as an

extension of the state itself?

Under any of these existing tests—none of

which were applied by the Second Circuit—the

Manhattan Neighborhood Network (MNN) is likely

not a state actor. As Judge Jacobs in his separate

opinion concurring in part and dissenting in part

explained, there is no state compulsion because the

City had no direct control over MNN’s editorial

decision making. Halleck v. Manhattan Cmty. Access

Corp., 882 F.3d 300, 310 (2d Cir. 2018) @acobs J.,

concurring in part and dissenting in part). Similarly,

the two City appointed members of the MNN board

did not exercise the kind of control needed to establish

joint action. /d.; cf. Wilcher v. City of Akron, 498 F.3d

516, 522 (6th Cir. 2007) (finding that the state was

liable when it had “reserved express power to review

and overrule decisions . . . governing the public access

channel.”). The miniscule amount of control that the

government has over MNN’s day-to-day operations

stands in stark contrast to other cases where a court

determined that a private entity was a state actor. For

instance, Kvans, 382 U.S. at 299, concerned a park

which was deeded to the city, used by the city for city

functions, and maintained by the city and therefore

had become public property. Finally, MNN was not

performing a function that was a “traditional and

exclusive public function.” Halleck, 882 F.3d at 311.

As the Sixth Circuit correctly concluded in a similar

case, “TV service is not a traditional service of local

government” and the fact that public access channels

are managed by the government in some communities

does not transform the service into “a power reserved

exclusively to the state.” Wilcher, 498 F.3d at 519.

That should have settled the matter; the case should

be remanded to allow the Second Circuit to apply the

correct tests in the first instance.

Determining state actor status requires closely

“sifting facts and weighting circumstances.” Burton v.

Wilmington Parking Auth., 365 U.S. 715, 722 (1961).

It is certainly easy to envision a public access

television network that is a state actor. For instance,

if a government entity runs the network, or if the

government exercises direct control and supervision

over the content that the network displays. Although

the facts of this case do not appear to support the

conclusion that MNN is a state actor, the Second

Circuit could have written a narrow opinion applying

the tests set forth above that would leave open the

door for state actor status in a closer case.

The Second Circuit’s ruling was anything but

narrow. Instead, the court held that the public access

channel was a public forum because of its resemblance

to traditional public fora. See Pet. App. 13a (“A public

access channel is the electronic version of the public

square.”). Because MNN was required to operate the

channel, this led to the conclusion that it was a state

actor. Unfortunately, the Second Circuit’s overbroad

decision risks transforming many private actors into

state actors and large swathes of property into public

fora. The Second Circuit’s decision lacks any

meaningful limiting principle and would be disastrous

for freedom of speech if allowed to stand.

Specifically, the decision below is deeply flawed

in at least four respects. First, mere resemblance to

government-run public fora does not create a public

forum. Second, public access channels and other

content providers are not merely conduits for the

speech of others. Third, use of private property for the

public good does not strip it of its private character.

Fourth, scarcity does not justify the transformation of

private property into a public forum.

A. Mere Resemblance to a Public Forum

Cannot Transform Private Property

For the Second Circuit, all that was required to

declare that publi: access channels are public fora was

that the channels resemble traditional “soap box/es]”

found in public streets and parks. See Denver Area

Educational Telecommunications Consortium, Inc. v.

F.C.C., 518 U.S. 727 (1996) (Kennedy J., concurring).

But if mere similitude to a public forum creates a

public forum, then a broad swath of traditionally

private property will be converted into public fora. A

newspaper's opinion section or online comment forum

10

can allow for the airing of different and competing

perspectives. A shopping mall can allow competing

brands to have a storefront. An online content

provider such as Facebook or YouTube can allow users

to create and share diverse content. Each of these fora

in some ways resemble a “soap box” in a traditional

public forum. See Packingham v. North Carolina, 137

S. Ct. 1730, 1737 (2017) (describing the Internet as

“the modern public square”). Under the reasoning of

the Second Circuit, all of these can be turned into

public fora.

Fortunately, that is not the law of this Court.

Under this Court’s long-standing doctrine, it is only

“government property that has traditionally been

available for public expression” that is subject to the

full rigors of the First Amendment. Jnt7l Soc. for

Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 678

(1992) (emphasis added). The public right of access to

government-owned and controlled property flows from

the fact that such property has “immemorially been

held in trust for the use of the public and, time out of

mind, ha[s] been used for purposes of assembly,

communicating thoughts between citizens, and

discussing public questions.” Hague v. Comm. for

Indus. Org., 307 U.S. 496, 515 (1939). Access to such

property that has been held in the public trust is “part

of the privileges, immunities, rights, and liberties of

citizens.” Id. The same cannot be said for privately

held property no matter how closely it may resemble

a public square.

ll

To the contrary, the idea that private property

becomes a public forum if it approximates a public

forum was wisely rejected by this Court. In

Amalgamated Food Emp. Union Local 590 v. Logan

Valley Plaza, Inc., 391 U.S. 308, 309 (1968), abrogated

by Hudgens v. N. L. R. B., 424 U.S. 507 (1976), this

Court engaged in an ill-fated effort to expand the

scope of a public forum onto private property. When

the owners of a store in a shopping mall sued to enjoin

union picketers from accessing their property, this

Court held that “the shopping center premises were

not privately owned but instead constituted the

business area of a municipality” because they were

similar in nature to “streets, sidewalks, parks, and

other similar public places are so _ historically

associated with the exercise of First Amendment

rights.” /d. at 315. A few years later, this Court wisely

reversed course and emphasized that property does

not “lose its private character merely because the

public is generally invited to use it for designated

purposes.” Lloyd Corp., Ltd. v. Tanner, 407 U.S. 551,

569 (1972). See also Intl Soc. For Krishna

Consciousness, 505 U.S. at 681 (emphasizing that the

similarities between government and private fora was

“irrelevant to public fora analysis”).

The Second Circuit's decision is an invitation to

return to the long-repudiated Logan Valley doctrine.

This Court should reject that invitation. Transforming

private property into public property would have a

perverse impact on the marketplace of ideas. Such a

rule would be especially burdensome to private

property owners who create spaces for the expression

12

of a panoply of views. Social media entities in

particular have staked their businesses on creating

open platforms for the airing of diverse views. Under

the Second Circuit’s reasoning, social media platforms

could face civil liability whenever they impose any

kind of content restrictions, wholly upending the state

of the law. See Cyber Promotions, Inc. v. Am. Online,

Inc., 948 F. Supp. 436, 456 (E.D. Pa. 1996) (an ISP is

not a state actor); see also Green v. Am. Online, Inc.,

318 F.3d 465, 472 (3d Cir. 2003) (same); Prager Univ.

v. Google LLC, No. 17-CV-06064-LHK, 2018 WL

1471939, at *8 (N.D. Cal. Mar. 26, 2018) (YouTube is

not a public forum); Langdon v. Google, Inc., 474 F.

Supp. 2d 622, 631—32 (D. Del. 2007) (a search engine

is neither a state actor nor a public forum).

Concretely, many websites would rather disable

comment functionality entirely than have to justify

comment moderation under the rigorous standards of

the First Amendment.

Applying the public forum doctrine to privately

created fora would paradoxically inhibit speech by

encouraging the proprietor of the forum to close it

entirely rather than risk First Amendment liability.

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

460 U.S. 37, 49 n.9 (1983) (observing that a judicial

attempt to make school mailboxes into public fora

“would invite schools to close their mail systems to all

but school personnel.”). A precedent that private

property can become a public forum would therefore

have the result of limiting the number of private

entities that risk putting themselves in a position to

be designated a public forum. That is the lesson of a

13

close historical precedent: the FCC's Fairness

Doctrine.

The Fairness Doctrine was an FCC. rule that

“required broadcast media licensees (1) ‘to provide

coverage of vitally important controversial issues of

interest in the community served by the licensees’ and

(2) ‘to provide a reasonable opportunity for the

presentation of contrasting viewpoints on such

issues.” Syracuse Peace Council v. F.C.C., 867 F.2d

654, 655 (D.C. Cir. 1989) (quoting Report Concerning

General Fairness Doctrine Obligations of Broadcast

Licensees, 102 F.C.C.2d 143, 146 (1985)). In practice,

the arbiters of what constituted “contrasting

viewpoints” and “reasonable opportunities” were

F.C.C. bureaucrats and judges. And when either

disagreed with a licensee’s belief that the right voices

had been presented, those licensees faced penalties of

fines or even a loss of their license entirely. See, e.g.,

Brandywine-Main Line Radio, Inc. v. F.C.C., 473 F.2d

16, 63 (D.C. Cir. 1972) (Bazelon, C.J., dissenting)

(“The Federal Communications Commission has

subjected Brandywine to the supreme penalty: it may

no longer operate as a radio broadcast station.”).

When the Fairness Doctrine was in effect,

broadcasters “|came] under repeated attacks from

government spokesmen who did not like the way

television reported a variety of hot public issues.” /d.

at 78. The result was that individual broadcast

stations felt obligated to “decrease the number of

issues [they] discussed, or to decrease the intensity of

[their] presentation.” /d. at 70.

14

Imposing First Amendment public forum

doctrine on private platforms risks a similar effect.

While proponents may hope that such a rule would

only “eliminate bias,” individual platforms may

instead impose much stricter limitations on all

speakers, so as to reduce the risk of any one speaker

claiming “viewpoint discrimination.” This lesson was

learned with respect to the Fairness Doctrine, an

approach that was rejected by bipartisan consensus.

A similar attempt at mandating “fairness” should not

be imposed on private broadcasters now through

judicial means. “To argue that a more effective press

requires a more regulated press flies in the face of

what history has taught us about the values and

purposes of protecting the individual’s freedom of

speech.” Jd. at 79.

The risk of censorship is especially severe in the

context of social media organizations. If social media

entities are required to choose between allowing Nazi

hate speech, videos depicting animal cruelty, or

simulated virtual child porn as the First Amendment

requires the government to allow?, or engaging in an

aggressive crack-down on_ speech, then these

organizations are likely to restrict speech in order to

avoid creating a public forum in the first place.

2 National Socialist Party of America v. Viilage of Skokie, 432

U.S. 43 (1977) (Nazi march); United States v. Stevens, 559 U.S.

460 (2010) (snuff and crush films); Ashcroft v. Free Speech

Coalition, 535 U.S. 234 (2002) (virtual child porn).

15

B. Private Entities Do Not Become

State Actors Merely Because They

Channel Individual Speech

The Second Circuit also relied implicitly on

Justice Kennedy’s argument that since a government

entity granted the franchise and required the creation

of public access channels, the channel operators were

merely “conduits for the speech of others.” Denver

Area, 518 U.S. at 793 (Kennedy J., concurring). In

other words, MNN could not control the message

expressed on the public access channels because the

speech was not its speech at all. This reasoning is

contrary to this Court’s precedent which emphasizes

that cable operators are no less entitled to “decide . . .

the ideas and beliefs deserving of expression,

consideration, and adherence” and to be free from

“governmental control over the content of messages

expressed by private’ individuals.” Turner

Broadcasting System, Inc. v. F.C.C., 512 U.S. 622, 641

(1994). Cable programming operators exercise their

First Amendment rights in innumerable ways such as

“through original programming or by exercising

editorial discretion over which stations or programs to

include in [their] repertoire.” City of Los Angeles v.

Preferred Commce’ns, Inc., 476 U.S. 488, 494 (1986); see

also Columbia Broad. Sys., Inc. v. Democratic Nat.

Comm., 412 U.S. 94, 117 (1973) (“[A] broadcast

licensee has a large measure of journalistic freedom”).

Federal law imposes some limits on the ability

of cable programmers to exercise editorial control over

public access channels. As several members of this

16

Court have noted, those limits are constitutionally

suspect under the unconstitutional conditions

doctrine and should be “subject to some form of

heightened scrutiny.” Denver Area, 518 U.S. at 821

(Thomas J., dissenting). But regardless of the

continued validity of public access requirements,

federal regulations do not bestow the public with

constitutional access rights “that directly conflict with

the constitutionally protected private speech rights of

another person or entity.” Jd. at 820. As Justice

Thomas explained in Denver Area, “[j]ust because the

Court has apparently accepted, for now, the

proposition that the Constitution permits some degree

of forced speech in the cable context does not mean

that the beneficiaries of a Government-imposed forced

speech program enjoy additional First Amendment

protections beyond those normally afforded to purely

private speakers.” Jd. at 822. See also Information

Providers’ Coalition for Defense of First Amendment v.

F.C.C., 928 F.2d 866, 877 (9th Cir. 1991) (“[A] carrier

is free under the Constitution to terminate service to

dial-a-porn operators altogether’).

Moreover, contrary to the Second Circuit’s

determination that public access providers are mere

“conduits,” public access providers can and do

“exercise|] editorial discretion” as permitted by the

First Amendment outside of federally imposed limits.

For instance, one of the channels that MNN offers to

the public is a partnership with Free Speech TV, a

. news network that offers a “progressive perspective on

the news” and offers such left-leaning programing as

Democracy Now! and Gay USA. See Free Speech TV,

17

Manhattan News Network Partners with Free Speech

TV (Dec. 21, 2016)°. The result of this partnership is

a richer diversity of programing. Taking the Second

Circuit's reasoning to its logical conclusion, public

access channels such as MNN would be unable to take

steps to curate content or structure programming in

furtherance of their mission to serve the public, let

alone engage in similar partnerships such as that

between MNN and Free Speech TV. A government

actor required to carry public speech on equal terms

could not host a network that treated progressive

viewpoints more favorably than conservative

viewpoints. Treating MNN as a state actor would

therefore stifle diversity, harm the marketplace of

ideas, and disserve the public. And this same logic

could apply to any entity that could be described as

“conduits for the speech of others,” such as social

media platforms. The Second Circuit's misguided

decision would therefore wreak havoc on the ability of

speech platforms to exercise editorial discretion or

control.

Unfortunately, this Court's decision § in

PruneYard Shopping Cir. v. Robins, 447 U.S. 74, 87

(1980) contributed to the Second Circuit’s confusion.

In that case, the Court reiterated its determination

that the First Amendment did not require property

owners to relinquish private property rights, but

suggested that the First Amendment did not prevent

a state from forcing a large shopping mall to operate

as a public forum when the property was open to the

8 https://freespeech. org/press-releases/mnn-welcomes-free-speech-tv/.

18

public and private speech was unlikely to be

attributed to the owner. PruneYard was wrong when

it was decided, and has grown ever more dubious in

light of this Court’s increasing scrutiny of laws that

compel speech. See Janus v. Am. Fed’n of State, Cty.,

& Mun. Employees, Council 31, 138 S. Ct. 2448 (2018)

(forced subsidy of union speech violates the free

speech rights of nonmembers); Nat? Inst. of Family &

Life Advocates v. Becerra, 138 S. Ct. 2361 (2018) daw

requiring crisis pregnancy centers to notify patients of

the availability of publicly funded abortion was

compelled speech and violated the First Amendment);

United States v. United Foods, Inc., 533 U.S. 405, 413

(2001) (compelled assessment for mushroom

promotion violated the First Amendment). The Court

should therefore take this opportunity to repudiate

the PruneYard doctrine and clarify that private

property owners cannot be compelled by government

fiat to allow their property to be used as a public

forum. In any event, this case is distinguishable from

PruneYard in that MNN exercised its editorial

discretion to bar speech specifically because it

objected to the content. See Hurley v. Irish-Am. Gay,

Lesbian & Bisexual Grp. of Boston, 515 U.S. 557, 580

(1995) (explaining that PruneYard “did not involve

any concern that access to this area might affect the

shopping center owner's exercise of his own right to

speak” and that the owner in Prune Yard “did not even

allege that he objected to the content of the

pamphlets”) (internal citations omitted). If this Court

does not wholly repudiate Prune Yard, it should clarify

that PruneYard is limited to cases where the content

19

of the speech in question is not contrary to the owner's

right of self-expression.

C. The Fact That Public Access Channels

Serve the Public Good Rather Than

Generate Profit Should Not Turn

Them into Public Fora

More than 20 years ago, the Second Circuit

correctly concluded that a provider of leased access

channels was not a state actor. Loce v. Time Warner

Entm’t Advance/ Newhouse P’ship, 191 F.3d 256 (2d

Cir. 1999). In reaching the opposite conclusion in this

case, the Second Circuit honed in on the distinction

between nonprofit uses of property, which it saw as

akin to government action, and for-profit uses, which

are akin to private commerce. But this distinction is

arbitrary and meaningless with regard to the reach of

the First Amendment. In both instances cable

operators are required to offer channels to the public

that might have been used for another purpose and

are subject to the same degree of government

oversight. Nor is the presence or absence of a profit

motive constitutionally significant. For-profit

companies are “not require|d] . . . to pursue profit at

the expense of everything else, and many do not do

so.” Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct.

2751, 2771 (2014). For-profit organizations “support a

wide variety of charitable causes . . . to further

humanitarian and other altruistic objectives.” Jd.

Owners of a for-profit are not required to sacrifice

constitutional rights such as the right to freedom of

speech and private property if they choose to pursue

20

the public good. Similarly, a private property owner

can open his property for both paid and unpaid uses

without relinquishing private property rights. See

Soderholm v. Chicago Nat. League Ball Club, Inc., 587

N.E.2d 517, 520 (ill. App. 1992) (holding that “mere

permission to use land does not ripen into a

prescriptive right regardless of the length of time that

such enjoyment is permitted”). For instance, the

owner of a concert venue might allow artists to

perform there for a fee, but also allow a charitable

benefit concert to use the space without cost. This

Court should clarify that the nonprofit use of property,

such as providing public access channels, does not

transform the property into a public forum.

D. Scarcity Cannot Justify the Transformation

of Private Property into a Public Forum

An alternative rationale for the Second

Circuit's ruling is the claim that public access

networks are a limited resource and that therefore

scarcity requires opening up these fora to the public.

This Court has at times embraced the argument that

scarcity can justify government regulations that

guarantee public access. Red Lion Broadcasting Co. v.

F-.C.C., 395 U.S. 367 (1969). And in limited contexts,

such as with a true government-granted monopoly,

scarcity might justify greater government

intervention. But there are several significant

problems with that argument in this case.

First, the scarcity rationale in Red Lion was

“dubious from [it]s infancy,” Denver Area, 518 U.S. at

813 (Thomas J., dissenting); see also Columbia Broad.

21

Sys., Inc. v. Democratic Nat. Comm., 412 U.S. 94, 155

(1973) (Douglas J., concurring) (arguing that scarcity

or the desire for a balanced perspective “was no reason

to put the saddle of the federal bureaucracy on the

backs of publishers”), is inapplicable to cable

television, Turner, 512 U.S. at 622, and has become

obsolete in light of other technological developments.

This Court denied cable operators full protection of

the First Amendment in Turner, only because of the

“special characteristics of the cable medium: the

bottleneck monopoly power exercised by cable

operators ... .” 512 U.S. at 661. This supposed

“gatekeeper” power over the content viewed by

Americans depended on two factors: First, cable

providers controlled very nearly 100% of the market

for Multichannel Video Programming Distribution in

data then available to the Court. This monopoly power

disappeared almost immediately with the rise of

satellite television. According to the most recent data

from the Federal Communications Commission, at the

end of 2015, cable operators had just 53.1% of the

MVPD market and 99% of Americans had access to

three television providers (satellite or cable). Federal

Communications Commission, 18th Report, Annual

Assessment of the Status of Competition in the

Market for the Delivery of Video Programming, 4 2,

21 & Table III.A.2. These statistics dramatically

overstate the continuing power of cable operators, both

because they are now three years old, and cable’s

market share has declined steadily for years, and also

because the percentage of Americans subscribing to

any television service has also declined. Many

Americans have simply “cut the cord” to television

22

services entirely. In the fall of 2018 alone, more than

one million cable and satellite TV subscribers

cancelled their subscriptions, largely because of the

greater availability of online options. See Mike Snider,

Cord cutting accelerates as pay TV loses 1 million

customers in largest-ever quarterly loss, USA Today

(Nov. 7, 2018).

The second factor critical to Turner has also

disappeared: “When an individual subscribes to cable,

the physical connection between the television set and

the cable network gives the cable operator bottleneck,

or gatekeeper, control over most (if not all) of the

television programming tl t is channeled into the

subscriber's home.” Turner, 512 U.S. at 656. But

today, even those who do subscribe to cable (or

satellite) service, can easily access video content

online just as easily. For instance, the video at the

heart of this litigation can be accessed by any member

of the public on YouTube®. And Comcast, the nation’s

largest cable company, allows its subscribers to access

YouTube content through an app presented alongside

its own content in the Xfinity user interface. See

Comcast, YouTube App on Xfinity X1 Overview®.

There is simply no longer the need to treat cable (or

‘ https:/Awww.usatoday.com/story/tech/talkingtech/20 18/1 1/07/cord-

cutting-accelerates- l-m-customers-dropped-pay-tv-last-

quarter/1919471002/

5 The 1% Visits El Barrio; Whose Community?, YouTube (July

29, 2012) https://www.youtube.com/watch?v=QEbMTGEQ I xc.

6 — https:/Avww.xfinity.com/support/articles/x 1 -youtube-app-overview

(last visited Dec. 5, 2018).

23

broadcast) television as a scarce resource that justifies

government intervention and oversight.

Finally, the Second Circuit’s decision goes far

further than the Supreme Court did in Red Lion.

There, the Court found that federal regulations

requiring community access did not violate the First

Amendment. Here, the Second Circuit found that such

public access requirements were constitutionally

required by virtue of the nature of the forum. The

implications of that extension of Red Lion are stark;

any owner of a scarce resource can now be conscripted

into government service even without any express

federal action, and even when the government

ownership conflicts with the owners First

Amendment rights. See Denver Area, 518 U.S. at 820

(Thomas J., dissenting) (“[T]he Court has not

recognized, as entitled to full constitutional

protection, statutorily created speech rights that

directly conflict with the constitutionally protected

private speech rights of another person or entity.”).

This Court must reject the Second Circuit's faulty

decision.

24

CONCLUSION

This Court should reverse the Second Circuit

and find that MNN is not a state actor.

DATED: December, 2018.

Respectfully submitted,

DANIEL M. ORTNER JAMES M. MANLEY

Pacific Legal Foundation Counsel of Record

930 G Street Pacific Legal Foundation

Sacramento, CA 95814 3217 E. Shea Blvd., #108

Phone: (916) 419-7111 Phoenix, AZ 85028

Email DOrtner@panficlegal org Phone: (916) 419-7111

Email: JManley@pacificlegal org

BERIN SZOKA THOMAS A. BERRY

TechF reedom Pacific Legal Foundation

110 Maryland Ave. N.E. 3100 Claredon Blvd.

Suite 409 Suite 610

Washington, DC 20002 Arlington, VA 22201

Phone: (202) 803-2867 Phone: (916) 419-7111

Emait bezoka@techfreedom org Email: TBerry@pacificlegal org