Manhattan Community Access Corp. v. Halleck

(Slip Opinion) OCTOBER TERM, 2018 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
MANHATTAN COMMUNITY ACCESS CORP. ET AL. v.
HALLECK ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SECOND CIRCUIT
No. 17–1702. Argued February 25, 2019—Decided June 17, 2019
New York state law requires cable operators to set aside channels on
their cable systems for public access. Those channels are operated by
the cable operator unless the local government chooses to itself oper-
ate the channels or designates a private entity to operate the chan-
nels. New York City (the City) has designated a private nonprofit
corporation, petitioner Manhattan Neighborhood Network (MNN), to
operate the public access channels on Time Warner’s cable system in
Manhattan. Respondents DeeDee Halleck and Jesus Papoleto
Melendez produced a film critical of MNN to be aired on MNN’s pub-
lic access channels. MNN televised the film. MNN later suspended
Halleck and Melendez from all MNN services and facilities. The pro-
ducers sued, claiming that MNN violated their First Amendment
free-speech rights when it restricted their access to the public access
channels because of the content of their film. The District Court
dismissed the claim on the ground that MNN is not a state actor and
therefore is not subject to First Amendment constraints on its edito-
rial discretion. Reversing in relevant part, the Second Circuit con-
cluded that MNN is a state actor subject to First Amendment con-
straints.
Held: MNN is not a state actor subject to the First Amendment. Pp. 5–
16.
(a) The Free Speech Clause of the First Amendment prohibits only
governmental, not private, abridgment of speech. See, e.g., Denver
Area Ed. Telecommunications Consortium, Inc. v. FCC, 518 U.S. 727,
737. This Court’s state-action doctrine distinguishes the government
from individuals and private entities. Pp. 5–14.
(1) A private entity may qualify as a state actor when, as rele-
2 MANHATTAN COMMUNITY ACCESS CORP. v. HALLECK
Syllabus
vant here, the entity exercises “powers traditionally exclusively re-
served to the State.” Jackson v. Metropolitan Edison Co., 419 U.S.
345, 352. The Court has stressed that “very few” functions fall into
that category. Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 158. The
relevant function in this case—operation of public access channels on
a cable system—has not traditionally and exclusively been performed
by government. Since the 1970s, a variety of private and public ac-
tors have operated public access channels. Early Manhattan public
access channels were operated by private cable operators with some
help from private nonprofit organizations. That practice continued
until the early 1990s, when MNN began to operate the channels.
Operating public access channels on a cable system is not a tradi-
tional, exclusive public function. Pp. 6–8.
(2) The producers contend that the relevant function here is more
generally the operation of a public forum for speech, which, they
claim, is a traditional, exclusive public function. But that analysis
mistakenly ignores the threshold state-action question. Providing
some kind of forum for speech is not an activity that only governmen-
tal entities have traditionally performed. Therefore, a private entity
who provides a forum for speech is not transformed by that fact alone
into a state actor. See Hudgens v. NLRB, 424 U.S. 507, 520–521.
Pp. 8–10.
(3) The producers note that the City has designated MNN to op-
erate the public access channels on Time Warner’s cable system, and
that the State heavily regulates MNN with respect to those channels.
But the City’s designation is analogous to a government license, a
government contract, or a government-granted monopoly, none of
which converts a private entity into a state actor—unless the private
entity is performing a traditional, exclusive public function. See, e.g.,
San Francisco Arts & Athletics, Inc. v. United States Olympic Comm.,
483 U.S. 522, 543–544. And the fact that MNN is subject to the
State’s extensive regulation “does not by itself convert its action into
that of the State.” Jackson, 419 U.S., at 350. Pp. 11–14.
(b) The producers alternatively contend that the public access
channels are actually the City’s property and that MNN is essentially
managing government property on the City’s behalf. But the City
does not own or lease the public access channels and does not possess
any formal easement or other property interest in the channels. It
does not matter that a provision in the franchise agreements between
the City and Time Warner allowed the City to designate a private en-
tity to operate the public access channels on Time Warner’s cable sys-
tem. Nothing in the agreements suggests that the City possesses any
property interest in the cable system or in the public access channels
on that system. Pp. 14–15.
Cite as: 587 U. S. ____ (2019) 3
Syllabus
882 F.3d 300, reversed in part and remanded.
KAVANAUGH, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and THOMAS, ALITO, and GORSUCH, JJ., joined. SOTOMAYOR, J.,
filed a dissenting opinion, in which GINSBURG, BREYER, and KAGAN, JJ.,
joined.
Cite as: 587 U. S. ____ (2019) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 17–1702
_________________
MANHATTAN COMMUNITY ACCESS CORPORATION,
ET AL., PETITIONERS v. DEEDEE HALLECK, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT
[June 17, 2019]
JUSTICE KAVANAUGH delivered the opinion of the Court.
The Free Speech Clause of the First Amendment con-
strains governmental actors and protects private actors.
To draw the line between governmental and private, this
Court applies what is known as the state-action doctrine.
Under that doctrine, as relevant here, a private entity
may be considered a state actor when it exercises a func-
tion “traditionally exclusively reserved to the State.”
Jackson v. Metropolitan Edison Co., 419 U.S. 345, 352
(1974).
This state-action case concerns the public access chan-
nels on Time Warner’s cable system in Manhattan. Public
access channels are available for private citizens to use.
The public access channels on Time Warner’s cable system
in Manhattan are operated by a private nonprofit corpora-
tion known as MNN. The question here is whether
MNN—even though it is a private entity—nonetheless is a
state actor when it operates the public access channels. In
other words, is operation of public access channels on a
cable system a traditional, exclusive public function? If so,
then the First Amendment would restrict MNN’s exercise
2 MANHATTAN COMMUNITY ACCESS CORP. v. HALLECK
Opinion of the Court
of editorial discretion over the speech and speakers on the
public access channels.
Under the state-action doctrine as it has been articulated
and applied by our precedents, we conclude that opera-
tion of public access channels on a cable system is not a
traditional, exclusive public function. Moreover, a private
entity such as MNN who opens its property for speech by
others is not transformed by that fact alone into a state
actor. In operating the public access channels, MNN is a
private actor, not a state actor, and MNN therefore is not
subject to First Amendment constraints on its editorial
discretion. We reverse in relevant part the judgment of
the Second Circuit, and we remand the case for further
proceedings consistent with this opinion.
I
A
Since the 1970s, public access channels have been a
regular feature on cable television systems throughout the
United States. In the 1970s, Federal Communications
Commission regulations required certain cable operators
to set aside channels on their cable systems for public
access. In 1979, however, this Court ruled that the FCC
lacked statutory authority to impose that mandate. See
FCC v. Midwest Video Corp., 440 U.S. 689 (1979). A few
years later, Congress passed and President Reagan signed
the Cable Communications Policy Act of 1984. 98 Stat.
2779. The Act authorized state and local governments to
require cable operators to set aside channels on their cable
systems for public access. 47 U.S. C. §531(b).
The New York State Public Service Commission regu-
lates cable franchising in New York State and requires
cable operators in the State to set aside channels on their
cable systems for public access. 16 N. Y. Codes, Rules &
Regs. §§895.1(f), 895.4(b) (2018). State law requires that
use of the public access channels be free of charge and
Cite as: 587 U. S. ____ (2019) 3
Opinion of the Court
first-come, first-served. §§895.4(c)(4) and (6). Under state
law, the cable operator operates the public access channels
unless the local government in the area chooses to itself
operate the channels or designates a private entity to
operate the channels. §895.4(c)(1).
Time Warner (now known as Charter) operates a cable
system in Manhattan. Under state law, Time Warner
must set aside some channels on its cable system for
public access. New York City (the City) has designated a
private nonprofit corporation named Manhattan Neigh-
borhood Network, commonly referred to as MNN, to oper-
ate Time Warner’s public access channels in Manhattan.
This case involves a complaint against MNN regarding its
management of the public access channels.
B
Because this case comes to us on a motion to dismiss, we
accept the allegations in the complaint as true. See Ash-
croft v. Iqbal, 556 U.S. 662, 678 (2009).
DeeDee Halleck and Jesus Papoleto Melendez produced
public access programming in Manhattan. They made a
film about MNN’s alleged neglect of the East Harlem
community. Halleck submitted the film to MNN for airing
on MNN’s public access channels, and MNN later tele-
vised the film. Afterwards, MNN fielded multiple com-
plaints about the film’s content. In response, MNN tem-
porarily suspended Halleck from using the public access
channels.
Halleck and Melendez soon became embroiled in another
dispute with MNN staff. In the wake of that dispute,
MNN ultimately suspended Halleck and Melendez from
all MNN services and facilities.
Halleck and Melendez then sued MNN, among other
parties, in Federal District Court. The two producers
claimed that MNN violated their First Amendment free-
speech rights when MNN restricted their access to the
4 MANHATTAN COMMUNITY ACCESS CORP. v. HALLECK
Opinion of the Court
public access channels because of the content of their film.
MNN moved to dismiss the producers’ First Amendment
claim on the ground that MNN is not a state actor and
therefore is not subject to First Amendment restrictions on
its editorial discretion. The District Court agreed with
MNN and dismissed the producers’ First Amendment
claim.
The Second Circuit reversed in relevant part. 882 F.3d
300, 308 (2018). In the majority opinion authored by
Judge Newman and joined by Judge Lohier, the court
stated that the public access channels in Manhattan are a
public forum for purposes of the First Amendment. Rea-
soning that “public forums are usually operated by gov-
ernments,” the court concluded that MNN is a state actor
subject to First Amendment constraints. Id., at 306–307.
Judge Lohier added a concurring opinion, explaining that
MNN also qualifies as a state actor for the independent
reason that “New York City delegated to MNN the tradi-
tionally public function of administering and regulating
speech in the public forum of Manhattan’s public access
channels.” Id., at 309.
Judge Jacobs dissented in relevant part, opining that
MNN is not a state actor. He reasoned that a private
entity’s operation of an open forum for speakers does not
render the host entity a state actor. Judge Jacobs further
stated that the operation of public access channels is not a
traditional, exclusive public function.
We granted certiorari to resolve disagreement among
the Courts of Appeals on the question whether private
operators of public access cable channels are state actors
subject to the First Amendment. 586 U. S. __ (2018).
Compare 882 F.3d 300 (case below), with Wilcher v. Ak-
ron, 498 F.3d 516 (CA6 2007); and Alliance for Commu-
nity Media v. FCC, 56 F.3d 105 (CADC 1995).
Cite as: 587 U. S. ____ (2019) 5
Opinion of the Court
II
Ratified in 1791, the First Amendment provides in
relevant part that “Congress shall make no law . . . abridg-
ing the freedom of speech.” Ratified in 1868, the Four-
teenth Amendment makes the First Amendment’s Free
Speech Clause applicable against the States: “No State
shall make or enforce any law which shall abridge the
privileges or immunities of citizens of the United States;
nor shall any State deprive any person of life, liberty, or
property, without due process of law . . . .” §1. The text
and original meaning of those Amendments, as well as
this Court’s longstanding precedents, establish that the
Free Speech Clause prohibits only governmental abridg-
ment of speech. The Free Speech Clause does not prohibit
private abridgment of speech. See, e.g., Denver Area Ed.
Telecommunications Consortium, Inc. v. FCC, 518 U.S.
727, 737 (1996) (plurality opinion); Hurley v. Irish-
American Gay, Lesbian and Bisexual Group of Boston,
Inc., 515 U.S. 557, 566 (1995); Hudgens v. NLRB, 424
U.S. 507, 513 (1976); cf. Miami Herald Publishing Co. v.
Tornillo, 418 U.S. 241, 256 (1974).
In accord with the text and structure of the Constitu-
tion, this Court’s state-action doctrine distinguishes the
government from individuals and private entities. See
Brentwood Academy v. Tennessee Secondary School Athletic
Assn., 531 U.S. 288, 295–296 (2001). By enforcing that
constitutional boundary between the governmental and
the private, the state-action doctrine protects a robust
sphere of individual liberty.
Here, the producers claim that MNN, a private entity,
restricted their access to MNN’s public access channels
because of the content of the producers’ film. The produc-
ers have advanced a First Amendment claim against
MNN. The threshold problem with that First Amendment
claim is a fundamental one: MNN is a private entity.
Relying on this Court’s state-action precedents, the
6 MANHATTAN COMMUNITY ACCESS CORP. v. HALLECK
Opinion of the Court
producers assert that MNN is nonetheless a state actor
subject to First Amendment constraints on its editorial
discretion. Under this Court’s cases, a private entity can
qualify as a state actor in a few limited circumstances—
including, for example, (i) when the private entity per-
forms a traditional, exclusive public function, see, e.g.,
Jackson, 419 U.S., at 352–354; (ii) when the government
compels the private entity to take a particular action, see,
e.g., Blum v. Yaretsky, 457 U.S. 991, 1004–1005 (1982); or
(iii) when the government acts jointly with the private
entity, see, e.g., Lugar v. Edmondson Oil Co., 457 U.S.
922, 941–942 (1982).
The producers’ primary argument here falls into the
first category: The producers contend that MNN exercises
a traditional, exclusive public function when it operates
the public access channels on Time Warner’s cable system
in Manhattan. We disagree.
A
Under the Court’s cases, a private entity may qualify as
a state actor when it exercises “powers traditionally exclu-
sively reserved to the State.” Jackson, 419 U.S., at 352.
It is not enough that the federal, state, or local govern-
ment exercised the function in the past, or still does. And
it is not enough that the function serves the public good or
the public interest in some way. Rather, to qualify as a
traditional, exclusive public function within the meaning
of our state-action precedents, the government must have
traditionally and exclusively performed the function. See
Rendell-Baker v. Kohn, 457 U.S. 830, 842 (1982); Jackson,
419 U.S., at 352–353; Evans v. Newton, 382 U.S. 296, 300
(1966).
The Court has stressed that “very few” functions fall
into that category. Flagg Bros., Inc. v. Brooks, 436 U.S.
149, 158 (1978). Under the Court’s cases, those functions
include, for example, running elections and operating a
Cite as: 587 U. S. ____ (2019) 7
Opinion of the Court
company town. See Terry v. Adams, 345 U.S. 461, 468–
470 (1953) (elections); Marsh v. Alabama, 326 U.S. 501,
505–509 (1946) (company town); Smith v. Allwright, 321
U.S. 649, 662–666 (1944) (elections); Nixon v. Condon,
286 U.S. 73, 84–89 (1932) (elections). 1 The Court has
ruled that a variety of functions do not fall into that cate-
gory, including, for example: running sports associations
and leagues, administering insurance payments, operating
nursing homes, providing special education, representing
indigent criminal defendants, resolving private disputes,
and supplying electricity. See American Mfrs. Mut. Ins.
Co. v. Sullivan, 526 U.S. 40, 55–57 (1999) (insurance
payments); National Collegiate Athletic Assn. v. Tar-
kanian, 488 U.S. 179, 197, n. 18 (1988) (college sports);
San Francisco Arts & Athletics, Inc. v. United States
Olympic Comm., 483 U.S. 522, 544–545 (1987) (amateur
sports); Blum, 457 U.S., at 1011–1012 (nursing home);
Rendell-Baker, 457 U.S., at 842 (special education); Polk
County v. Dodson, 454 U.S. 312, 318–319 (1981) (public
defender); Flagg Bros., 436 U.S., at 157–163 (private
dispute resolution); Jackson, 419 U.S., at 352–354 (elec-
tric service).
The relevant function in this case is operation of public
access channels on a cable system. That function has
not traditionally and exclusively been performed by
government.
Since the 1970s, when public access channels became a
regular feature on cable systems, a variety of private and
public actors have operated public access channels, includ-
——————
1 Relatedly, this Court has recognized that a private entity may, un-
der certain circumstances, be deemed a state actor when the govern-
ment has outsourced one of its constitutional obligations to a private
entity. In West v. Atkins, for example, the State was constitutionally
obligated to provide medical care to prison inmates. 487 U.S. 42, 56
(1988). That scenario is not present here because the government has
no such obligation to operate public access channels.
8 MANHATTAN COMMUNITY ACCESS CORP. v. HALLECK
Opinion of the Court
ing: private cable operators; private nonprofit organiza-
tions; municipalities; and other public and private com-
munity organizations such as churches, schools, and li-
braries. See Denver Area, 518 U.S., at 761–762 (plurality
opinion); R. Oringel & S. Buske, The Access Manager’s
Handbook: A Guide for Managing Community Television
14–17 (1987).
The history of public access channels in Manhattan
further illustrates the point. In 1971, public access chan-
nels first started operating in Manhattan. See D. Bren-
ner, M. Price, & M. Meyerson, Cable Television and Other
Nonbroadcast Video §6:29, p. 6–47 (2018). Those early
Manhattan public access channels were operated in large
part by private cable operators, with some help from
private nonprofit organizations. See G. Gillespie, Public
Access Cable Television in the United States and Canada
37–38 (1975); Janes, History and Structure of Public
Access Television, 39 J. Film & Video, No. 3, pp. 15–17
(1987). Those private cable operators continued to operate
the public access channels until the early 1990s, when
MNN (also a private entity) began to operate the public
access channels.
In short, operating public access channels on a cable
system is not a traditional, exclusive public function within
the meaning of this Court’s cases.
B
To avoid that conclusion, the producers widen the lens
and contend that the relevant function here is not simply
the operation of public access channels on a cable system,
but rather is more generally the operation of a public
forum for speech. And according to the producers, opera-
tion of a public forum for speech is a traditional, exclusive
public function.
That analysis mistakenly ignores the threshold state-
action question. When the government provides a forum
Cite as: 587 U. S. ____ (2019) 9
Opinion of the Court
for speech (known as a public forum), the government may
be constrained by the First Amendment, meaning that the
government ordinarily may not exclude speech or speakers
from the forum on the basis of viewpoint, or sometimes
even on the basis of content. See, e.g., Southeastern Pro-
motions, Ltd. v. Conrad, 420 U.S. 546, 547, 555 (1975)
(private theater leased to the city); Police Dept. of Chicago
v. Mosley, 408 U.S. 92, 93, 96 (1972) (sidewalks); Hague v.
Committee for Industrial Organization, 307 U.S. 496,
515–516 (1939) (streets and parks).
By contrast, when a private entity provides a forum for
speech, the private entity is not ordinarily constrained by
the First Amendment because the private entity is not a
state actor. The private entity may thus exercise editorial
discretion over the speech and speakers in the forum.
This Court so ruled in its 1976 decision in Hudgens v.
NLRB. There, the Court held that a shopping center
owner is not a state actor subject to First Amendment
requirements such as the public forum doctrine. 424
U.S., at 520–521; see also Lloyd Corp. v. Tanner, 407
U.S. 551, 569–570 (1972); Central Hardware Co. v.
NLRB, 407 U.S. 539, 547 (1972); Alliance for Community
Media, 56 F.3d, at 121–123.
The Hudgens decision reflects a commonsense principle:
Providing some kind of forum for speech is not an activity
that only governmental entities have traditionally per-
formed. Therefore, a private entity who provides a forum
for speech is not transformed by that fact alone into a
state actor. After all, private property owners and private
lessees often open their property for speech. Grocery
stores put up community bulletin boards. Comedy clubs
host open mic nights. As Judge Jacobs persuasively ex-
plained, it “is not at all a near-exclusive function of the
state to provide the forums for public expression, politics,
information, or entertainment.” 882 F.3d, at 311 (opinion
concurring in part and dissenting in part).
10 MANHATTAN COMMUNITY ACCESS CORP. v. HALLECK
Opinion of the Court
In short, merely hosting speech by others is not a tradi-
tional, exclusive public function and does not alone trans-
form private entities into state actors subject to First
Amendment constraints.
If the rule were otherwise, all private property owners
and private lessees who open their property for speech
would be subject to First Amendment constraints and
would lose the ability to exercise what they deem to be
appropriate editorial discretion within that open forum.
Private property owners and private lessees would face
the unappetizing choice of allowing all comers or closing
the platform altogether. “The Constitution by no means
requires such an attenuated doctrine of dedication of
private property to public use.” Hudgens, 424 U.S., at 519
(internal quotation marks omitted). Benjamin Franklin
did not have to operate his newspaper as “a stagecoach,
with seats for everyone.” F. Mott, American Journalism
55 (3d ed. 1962). That principle still holds true. As the
Court said in Hudgens, to hold that private property own-
ers providing a forum for speech are constrained by the
First Amendment would be “to create a court-made law
wholly disregarding the constitutional basis on which
private ownership of property rests in this country.” 424
U.S., at 517 (internal quotation marks omitted). The
Constitution does not disable private property owners and
private lessees from exercising editorial discretion over
speech and speakers on their property. 2
The producers here are seeking in effect to circumvent
this Court’s case law, including Hudgens. But Hudgens is
sound, and we therefore reaffirm our holding in that case. 3
——————
2 A distinct question not raised here is the degree to which the First
Amendment protects private entities such as Time Warner or MNN
from government legislation or regulation requiring those private
entities to open their property for speech by others. Cf. Turner Broad-
casting System, Inc. v. FCC, 512 U.S. 622, 636–637 (1994).
3 In Cornelius v. NAACP Legal Defense & Educational Fund, Inc.,
Cite as: 587 U. S. ____ (2019) 11
Opinion of the Court
C
Next, the producers retort that this case differs from
Hudgens because New York City has designated MNN to
operate the public access channels on Time Warner’s cable
system, and because New York State heavily regulates
MNN with respect to the public access channels. Under
this Court’s cases, however, those facts do not establish
that MNN is a state actor.
New York City’s designation of MNN to operate the
public access channels is analogous to a government li-
cense, a government contract, or a government-granted
monopoly. But as the Court has long held, the fact that
the government licenses, contracts with, or grants a mo-
nopoly to a private entity does not convert the private
entity into a state actor—unless the private entity is
performing a traditional, exclusive public function. See,
e.g., San Francisco Arts & Athletics, 483 U.S., at 543–544
(exclusive-use rights and corporate charters); Blum, 457
U.S., at 1011 (licenses); Rendell-Baker, 457 U.S., at 840–
841 (contracts); Polk County, 454 U.S., at 319, n. 9, and
320–322 (law licenses); Jackson, 419 U.S., at 351–352
(electric monopolies); Columbia Broadcasting System, Inc.
v. Democratic National Committee, 412 U.S. 94, 120–121
(1973) (broadcast licenses); Moose Lodge No. 107 v. Irvis,
407 U.S. 163, 176–177 (1972) (liquor licenses); cf. Trustees
——————
this Court said in passing dicta that “a speaker must seek access to
public property or to private property dedicated to public use to evoke
First Amendment concerns.” 473 U.S. 788, 801 (1985). But Cornelius
dealt with government-owned property. As JUSTICE THOMAS explained
in Denver Area Educational Telecommunications Consortium, Inc. v.
FCC, the Court’s admittedly imprecise and overbroad phrase in Cor-
nelius is not consistent with this Court’s case law and should not be
read to suggest that private property owners or private lessees are
subject to First Amendment constraints whenever they dedicate their
private property to public use or otherwise open their property for
speech. 518 U.S. 727, 827–828 (1996) (opinion concurring in judgment
in part and dissenting in part).
12 MANHATTAN COMMUNITY ACCESS CORP. v. HALLECK
Opinion of the Court
of Dartmouth College v. Woodward, 4 Wheat. 518, 638–639
(1819) (corporate charters). The same principle applies if
the government funds or subsidizes a private entity. See
Blum, 457 U.S., at 1011; Rendell-Baker, 457 U.S., at 840.
Numerous private entities in America obtain govern-
ment licenses, government contracts, or government-
granted monopolies. If those facts sufficed to transform a
private entity into a state actor, a large swath of private
entities in America would suddenly be turned into state
actors and be subject to a variety of constitutional con-
straints on their activities. As this Court’s many state-
action cases amply demonstrate, that is not the law. Here,
therefore, the City’s designation of MNN to operate the
public access channels on Time Warner’s cable system
does not make MNN a state actor.
So, too, New York State’s extensive regulation of MNN’s
operation of the public access channels does not make
MNN a state actor. Under the State’s regulations, air
time on the public access channels must be free, and pro-
gramming must be aired on a first-come, first-served
basis. Those regulations restrict MNN’s editorial discre-
tion and in effect require MNN to operate almost like a
common carrier. But under this Court’s cases, those re-
strictions do not render MNN a state actor.
In Jackson v. Metropolitan Edison Co., the leading case
on point, the Court stated that the “fact that a business is
subject to state regulation does not by itself convert its
action into that of the State.” 419 U.S., at 350. In that
case, the Court held that “a heavily regulated, privately
owned utility, enjoying at least a partial monopoly in the
providing of electrical service within its territory,” was not
a state actor. Id., at 358. The Court explained that the
“mere existence” of a “regulatory scheme”—even if “exten-
sive and detailed”—did not render the utility a state actor.
Id., at 350, and n. 7. Nor did it matter whether the State
had authorized the utility to provide electric service to the
Cite as: 587 U. S. ____ (2019) 13
Opinion of the Court
community, or whether the utility was the only entity
providing electric service to much of that community.
This case closely parallels Jackson. Like the electric
utility in Jackson, MNN is “a heavily regulated, privately
owned” entity. Id., at 358. As in Jackson, the regulations
do not transform the regulated private entity into a state
actor.
Put simply, being regulated by the State does not make
one a state actor. See Sullivan, 526 U.S., at 52; Blum,
457 U.S., at 1004; Rendell-Baker, 457 U.S., at 841–842;
Jackson, 419 U.S., at 350; Moose Lodge, 407 U.S., at 176–
177. As the Court’s cases have explained, the “being
heavily regulated makes you a state actor” theory of state
action is entirely circular and would significantly endan-
ger individual liberty and private enterprise. The theory
would be especially problematic in the speech context,
because it could eviscerate certain private entities’ rights
to exercise editorial control over speech and speakers on
their properties or platforms. Not surprisingly, as
JUSTICE THOMAS has pointed out, this Court has “never
even hinted that regulatory control, and particularly
direct regulatory control over a private entity’s First
Amendment speech rights,” could justify subjecting the
regulated private entity to the constraints of the First
Amendment. Denver Area, 518 U.S., at 829 (opinion
concurring in judgment in part and dissenting in part).
In sum, we conclude that MNN is not subject to First
Amendment constraints on how it exercises its editorial
discretion with respect to the public access channels. To
be sure, MNN is subject to state-law constraints on its
editorial discretion (assuming those state laws do not
violate a federal statute or the Constitution). If MNN
violates those state laws, or violates any applicable con-
tracts, MNN could perhaps face state-law sanctions or
liability of some kind. We of course take no position on
any potential state-law questions. We simply conclude
14 MANHATTAN COMMUNITY ACCESS CORP. v. HALLECK
Opinion of the Court
that MNN, as a private actor, is not subject to First
Amendment constraints on how it exercises editorial
discretion over the speech and speakers on its public
access channels.
III
Perhaps recognizing the problem with their argument
that MNN is a state actor under ordinary state-action
principles applicable to private entities and private prop-
erty, the producers alternatively contend that the public
access channels are actually the property of New York
City, not the property of Time Warner or MNN. On this
theory, the producers say (and the dissent agrees) that
MNN is in essence simply managing government property
on behalf of New York City.
The short answer to that argument is that the public
access channels are not the property of New York City.
Nothing in the record here suggests that a government
(federal, state, or city) owns or leases either the cable
system or the public access channels at issue here. Both
Time Warner and MNN are private entities. Time Warner
is the cable operator, and it owns its cable network, which
contains the public access channels. MNN operates those
public access channels with its own facilities and equip-
ment. The City does not own or lease the public access
channels, and the City does not possess a formal easement
or other property interest in those channels. The fran-
chise agreements between the City and Time Warner do
not say that the City has any property interest in the
public access channels. On the contrary, the franchise
agreements expressly place the public access channels
“under the jurisdiction” of MNN. App. 22. Moreover, the
producers did not allege in their complaint that the City
has a property interest in the channels. And the produc-
ers have not cited any basis in state law for such a conclu-
sion. Put simply, the City does not have “any formal
Cite as: 587 U. S. ____ (2019) 15
Opinion of the Court
easement or other property interest in those channels.”
Denver Area, 518 U.S., at 828 (opinion of THOMAS, J.).
It does not matter that a provision in the franchise
agreements between the City and Time Warner allowed
the City to designate a private entity to operate the public
access channels on Time Warner’s cable system. Time
Warner still owns the cable system. And MNN still oper-
ates the public access channels. To reiterate, nothing in
the franchise agreements suggests that the City possesses
any property interest in Time Warner’s cable system, or in
the public access channels on that system.
It is true that the City has allowed the cable operator,
Time Warner, to lay cable along public rights-of-way in
the City. But Time Warner’s access to public rights-of-
way does not alter the state-action analysis. For Time
Warner, as for other cable operators, access to public
rights-of-way is essential to lay cable and construct a
physical cable infrastructure. See Turner Broadcasting
System, Inc. v. FCC, 512 U.S. 622, 628 (1994). But the
same is true for utility providers, such as the electric
utility in Jackson. Put simply, a private entity’s permis-
sion from government to use public rights-of-way does not
render that private entity a state actor.
Having said all that, our point here should not be read
too broadly. Under the laws in certain States, including
New York, a local government may decide to itself operate
the public access channels on a local cable system (as
many local governments in New York State and around
the country already do), or could take appropriate steps to
obtain a property interest in the public access channels.
Depending on the circumstances, the First Amendment
might then constrain the local government’s operation of
the public access channels. We decide only the case before
us in light of the record before us.
16 MANHATTAN COMMUNITY ACCESS CORP. v. HALLECK
Opinion of the Court
* * *
It is sometimes said that the bigger the government, the
smaller the individual. Consistent with the text of the
Constitution, the state-action doctrine enforces a critical
boundary between the government and the individual, and
thereby protects a robust sphere of individual liberty.
Expanding the state-action doctrine beyond its traditional
boundaries would expand governmental control while
restricting individual liberty and private enterprise. We
decline to do so in this case.
MNN is a private entity that operates public access
channels on a cable system. Operating public access
channels on a cable system is not a traditional, exclusive
public function. A private entity such as MNN who opens
its property for speech by others is not transformed by
that fact alone into a state actor. Under the text of the
Constitution and our precedents, MNN is not a state actor
subject to the First Amendment. We reverse in relevant
part the judgment of the Second Circuit, and we remand
the case for further proceedings consistent with this opinion.
It is so ordered.
Cite as: 587 U. S. ____ (2019) 1
SOTOMAYOR, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 17–1702
_________________
MANHATTAN COMMUNITY ACCESS CORPORATION,
ET AL., PETITIONERS v. DEEDEE HALLECK, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT
[June 17, 2019]
JUSTICE SOTOMAYOR, with whom JUSTICE GINSBURG,
JUSTICE BREYER, and JUSTICE KAGAN join, dissenting.
The Court tells a very reasonable story about a case that
is not before us. I write to address the one that is.
This is a case about an organization appointed by the
government to administer a constitutional public forum.
(It is not, as the Court suggests, about a private property
owner that simply opened up its property to others.) New
York City (the City) secured a property interest in public-
access television channels when it granted a cable fran-
chise to a cable company. State regulations require those
public-access channels to be made open to the public on
terms that render them a public forum. The City con-
tracted out the administration of that forum to a private
organization, petitioner Manhattan Community Access
Corporation (MNN). By accepting that agency relation-
ship, MNN stepped into the City’s shoes and thus qualifies
as a state actor, subject to the First Amendment like any
other.
I
A
A cable-television franchise is, essentially, a license to
create a system for distributing cable TV in a certain area.
It is a valuable right, usually conferred on a private com-
2 MANHATTAN COMMUNITY ACCESS CORP. v. HALLECK
SOTOMAYOR, J., dissenting
pany by a local government. See 47 U.S. C. §§522(9)–(10),
541(a)(2), (b)(1); Turner Broadcasting System, Inc. v. FCC,
512 U.S. 622, 628 (1994). A private company cannot enter
a local cable market without one. §541(b)(1).
Cable companies transmit content through wires that
stretch “between a transmission facility and the television
sets of individual subscribers.” Id., at 627–628. Creating
this network of wires is a disruptive undertaking that
“entails the use of public rights-of-way and easements.”
Id., at 628.
New York State authorizes municipalities to grant cable
franchises to cable companies of a certain size only if those
companies agree to set aside at least one public access
channel. 16 N. Y. Codes, Rules & Regs. §§895.1(f ),
895.4(b)(1) (2016). New York then requires that those
public-access channels be open to all comers on “a first-
come, first-served, nondiscriminatory basis.” §895.4(c)(4).
Likewise, the State prohibits both cable franchisees and
local governments from “exercis[ing] any editorial control”
over the channels, aside from regulating obscenity and
other unprotected content. §§895.4(c)(8)–(9).
B
Years ago, New York City (no longer a party to this suit)
and Time Warner Entertainment Company (never a party
to this suit) entered into a cable-franchise agreement.
App. 22. Time Warner received a cable franchise; the City
received public-access channels. The agreement also
provided that the public-access channels would be operated
by an independent, nonprofit corporation chosen by the
Manhattan borough president. But the City, as the prac-
tice of other New York municipalities confirms, could have
instead chosen to run the channels itself. See §895.4(c)(1);
Brief for Respondents 35 (citing examples).
MNN is the independent nonprofit that the borough
president appointed to run the channels; indeed, MNN
Cite as: 587 U. S. ____ (2019) 3
SOTOMAYOR, J., dissenting
appears to have been incorporated in 1991 for that precise
purpose, with seven initial board members selected by the
borough president (though only two thus selected today).
See App. 23; Brief for Respondents 7, n. 1. The City ar-
ranged for MNN to receive startup capital from Time
Warner and to be funded through franchise fees from
Time Warner and other Manhattan cable franchisees.
App. 23; Brief for New York County Lawyers Association
(NYCLA) as Amicus Curiae 27; see also App. to Brief for
Respondents 19a. As the borough president announced
upon MNN’s formation in 1991, MNN’s “central charge is
to administer and manage all the public access channels of
the cable television systems in Manhattan.” App. to Brief
for NYCLA as Amicus Curiae 1.
As relevant here, respondents DeeDee Halleck and
Jesus Papoleto Melendez sued MNN in U. S. District
Court for the Southern District of New York under 42
U.S. C. §1983. They alleged that the public-access chan-
nels, “[r]equired by state regulation and [the] local fran-
chise agreements,” are “a designated public forum of
unlimited character”; that the City had “delegated control
of that public forum to MNN”; and that MNN had, in turn,
engaged in viewpoint discrimination in violation of re-
spondents’ First Amendment rights. App. 39.
The District Court dismissed respondents’ First
Amendment claim against MNN. The U. S. Court of
Appeals for the Second Circuit reversed that dismissal,
concluding that the public-access channels “are public
forums and that [MNN’s] employees were sufficiently
alleged to be state actors taking action barred by the First
Amendment.” 882 F.3d 300, 301–302 (2018). Because
the case before us arises from a motion to dismiss, re-
spondents’ factual allegations must be accepted as true.
Hernandez v. Mesa, 582 U. S. ___, ___ (2017) ( per curiam)
(slip op., at 1).
4 MANHATTAN COMMUNITY ACCESS CORP. v. HALLECK
SOTOMAYOR, J., dissenting
II
I would affirm the judgment below. The channels are
clearly a public forum: The City has a property interest in
them, and New York regulations require that access to
those channels be kept open to all. And because the City
(1) had a duty to provide that public forum once it granted
a cable franchise and (2) had a duty to abide by the First
Amendment once it provided that forum, those obligations
did not evaporate when the City delegated the administra-
tion of that forum to a private entity. Just as the City
would have been subject to the First Amendment had it
chosen to run the forum itself, MNN assumed the same
responsibility when it accepted the delegation.
A
When a person alleges a violation of the right to free
speech, courts generally must consider not only what was
said but also in what context it was said.
On the one hand, there are “public forums,” or settings
that the government has opened in some way for speech
by the public (or some subset of it). The Court’s prece-
dents subdivide this broader category into various subcat-
egories, with the level of leeway for government regulation
of speech varying accordingly. See Minnesota Voters
Alliance v. Mansky, 585 U. S. ___, ___ (2018) (slip op.,
at 7). Compare Frisby v. Schultz, 487 U.S. 474, 480 (1988)
(streets and public parks, traditional public forums), with
Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546,
555 (1975) (city-leased theater, designated public forum),
with Christian Legal Soc. Chapter of Univ. of Cal., Has-
tings College of Law v. Martinez, 561 U.S. 661, 669, 679,
and n. 12 (2010) (program for registered student organiza-
tions, limited public forum). But while many cases turn
on which type of “forum” is implicated, the important
point here is that viewpoint discrimination is impermissi-
ble in them all. See Good News Club v. Milford Central
Cite as: 587 U. S. ____ (2019) 5
SOTOMAYOR, J., dissenting
School, 533 U.S. 98, 106 (2001).
On the other hand, there are contexts that do not fall
under the “forum” rubric. For one, there are contexts in
which the government is simply engaging in its own
speech and thus has freedom to select the views it prefers.
See, e.g., Walker v. Texas Div., Sons of Confederate Veter-
ans, Inc., 576 U. S. ___, ___–___ (2015) (slip op., at 6–7)
(specialty license plates); Pleasant Grove City v. Summum,
555 U.S. 460, 467–469, 481 (2009) (privately donated
permanent monuments in a public park). 1 In addition,
there are purely private spaces, where the First Amend-
ment is (as relevant here) inapplicable. The First
Amendment leaves a private store owner (or homeowner),
for example, free to remove a customer (or dinner guest)
for expressing unwanted views. See, e.g., Lloyd Corp. v.
Tanner, 407 U.S. 551, 569–570 (1972). In these settings,
there is no First Amendment right against viewpoint
discrimination.
Here, respondents alleged viewpoint discrimination.
App. 39. So a key question in this case concerns what the
Manhattan public-access channels are: a public forum of
some kind, in which a claim alleging viewpoint discrimina-
tion would be cognizable, or something else, such as gov-
ernment speech or purely private property, where picking
favored viewpoints is appropriately commonplace. 2 Nei-
ther MNN nor the majority suggests that this is an in-
——————
1 That does not mean that no restrictions apply at all to the govern-
ment’s expression in such spaces, but it does mean that the government
can pick and choose among different views. See Walker, 576 U. S., at
___, ___–___ (slip op., at 6, 17–18); Summum, 555 U.S., at 468.
2 The channels are not, of course, a physical place. Under the Court’s
precedents, that makes no difference: Regardless of whether something
“is a forum more in a metaphysical than in a spatial or geographic
sense, . . . the same principles are applicable.” Rosenberger v. Rector
and Visitors of Univ. of Va., 515 U.S. 819, 830 (1995) (treating “Stu-
dent Activities Fund” as the forum at issue and citing cases in which a
school’s mail system and a charity drive were the relevant forums).
6 MANHATTAN COMMUNITY ACCESS CORP. v. HALLECK
SOTOMAYOR, J., dissenting
stance of government speech. This case thus turns first
and foremost on whether the public-access channels are or
are not purely private property. 3
1
This Court has not defined precisely what kind of gov-
ernmental property interest (if any) is necessary for a
public forum to exist. See Cornelius v. NAACP Legal
Defense & Ed. Fund, Inc., 473 U.S. 788, 801 (1985) (“a
speaker must seek access to public property or to private
property dedicated to public use”). But see ante, at 11, n. 3
(appearing to reject the phrase “private property dedicated
to public use” as “passing dicta”). I assume for the sake of
argument in this case that public-forum analysis is inap-
propriate where the government lacks a “significant prop-
erty interest consistent with the communicative purpose of
the forum.” Denver Area Ed. Telecommunications Consor-
tium, Inc. v. FCC, 518 U.S. 727, 829 (1996) (THOMAS, J.,
concurring in judgment in part and dissenting in part).
Such an interest is present here. As described above,
New York State required the City to obtain public-access
channels from Time Warner in exchange for awarding a
cable franchise. See supra, at 2. The exclusive right to
use these channels (and, as necessary, Time Warner’s
infrastructure) qualifies as a property interest, akin at the
very least to an easement.
The last time this Court considered a case centering on
public-access channels, five Justices described an interest
like the one here as similar to an easement. Although
JUSTICE BREYER did not conclude that a public-access
channel was indeed a public forum, he likened the cable
——————
3 As discussed below, it is possible that some (or even many) public-
access channels are government speech. The channels that MNN
administers, however, are clearly better thought of as a public forum
given the New York regulations mandating open and equal access. See
infra, at 9–10, and n. 7.
Cite as: 587 U. S. ____ (2019) 7
SOTOMAYOR, J., dissenting
company’s agreement to reserve such channels “to the
reservation of a public easement, or a dedication of land
for streets and parks, as part of a municipality’s approval
of a subdivision of land.” Denver Area, 518 U.S., at 760–
761 (joined by Stevens and Souter, JJ.). And Justice
Kennedy observed not only that an easement would be an
appropriate analogy, id., at 793–794 (opinion concurring
in part, concurring in judgment in part, and dissenting in
part, joined by GINSBURG, J.), but also that “[p]ublic access
channels meet the definition of a public forum,” id., at 791,
“even though they operate over property to which the
cable operator holds title,” id., at 792; see also id., at 792–
793 (noting that the entire cable system’s existence stems
from the municipality’s decision to grant the franchise).
What those five Justices suggested in 1996 remains true
today.
“A common idiom describes property as a ‘bun-
dle of sticks’—a collection of individual rights which, in
certain combinations, constitute property.” United States
v. Craft, 535 U.S. 274, 278 (2002). Rights to exclude and
to use are two of the most crucial sticks in the bundle. See
id., at 283. “State law determines . . . which sticks are in a
person’s bundle,” id., at 278, and therefore defining prop-
erty itself is a state-law exercise. 4 As for whether there is
a sufficient property interest to trigger First Amendment
forum analysis, related precedents show that there is.
As noted above, there is no disputing that Time Warner
owns the wires themselves. See Turner, 512 U.S., at 628.
If the wires were a road, it would be easy to define the
public’s right to walk on it as an easement. See, e.g., In re
India Street, 29 N.Y. 2d 97, 100–103, 272 N. E 2d 518,
——————
4 The parties have not pointed this Court to any New York law defini-
tively establishing the status of the channels. But even if there were
uncertainty about the status of the channels under New York law, that
would not be a reason to resolve the case against respondents (plaintiffs
below) at the motion to dismiss stage. See infra, at 12, n. 9, 14.
8 MANHATTAN COMMUNITY ACCESS CORP. v. HALLECK
SOTOMAYOR, J., dissenting
518–520 (1971). Similarly, if the wires were a theater,
there would be no question that a government’s long-term
lease to use it would be sufficient for public-forum pur-
poses. Southeastern Promotions, 420 U.S., at 547, 555. But
some may find this case more complicated because the
wires are not a road or a theater that one can physically
occupy; they are a conduit for transmitting signals that
appear as television channels. In other words, the ques-
tion is how to understand the right to place content on
those channels using those wires.
The right to convey expressive content using someone
else’s physical infrastructure is not new. To give another
low-tech example, imagine that one company owns a
billboard and another rents space on that billboard. The
renter can have a property interest in placing content on
the billboard for the lease term even though it does not
own the billboard itself. See, e.g., Naegele Outdoor Adver-
tising Co. of Minneapolis v. Lakeville, 532 N.W.2d 249,
253 (Minn. 1995); see also Matter of XAR Corp. v. Di Do-
nato, 76 A.D. 2d 972, 973, 429 N. Y. S. 2d 59, 60
(1980) (“Although invariably labeled ‘leases,’ agreements
to erect advertising signs or to place signs on walls or
fences are easements in gross”).
The same principle should operate in this higher tech
realm. Just as if the channels were a billboard, the City
obtained rights for exclusive use of the channels by the
public for the foreseeable future; no one is free to take the
channels away, short of a contract renegotiation. Cf.
Craft, 535 U.S., at 283. The City also obtained the right
to administer, or delegate the administration of, the chan-
nels. The channels are more intangible than a billboard,
but no one believes that a right must be tangible to qualify
as a property interest. See, e.g., Armstrong v. United
States, 364 U.S. 40, 48–49 (1960) (treating destruction of
valid liens as a taking); Adams Express Co. v. Ohio State
Auditor, 166 U.S. 185, 219 (1897) (treating “privileges,
Cite as: 587 U. S. ____ (2019) 9
SOTOMAYOR, J., dissenting
corporate franchises, contracts or obligations” as taxable
property). And it is hardly unprecedented for a govern-
ment to receive a right to transmit something over a pri-
vate entity’s infrastructure in exchange for conferring
something of value on that private entity; examples go
back at least as far as the 1800s. 5
I do not suggest that the government always obtains a
property interest in public-access channels created by
franchise agreements. But the arrangement here is con-
sistent with what the Court would treat as a governmen-
tal property interest in other contexts. New York City
gave Time Warner the right to lay wires and sell cable TV.
In exchange, the City received an exclusive right to send
its own signal over Time Warner’s infrastructure—no
different than receiving a right to place ads on another’s
billboards. Those rights amount to a governmental prop-
erty interest in the channels, and that property interest is
clearly “consistent with the communicative purpose of the
forum,” Denver Area, 518 U.S., at 829 (opinion of THOMAS,
J.). Indeed, it is the right to transmit the very content to
which New York law grants the public open and equal
access.
2
With the question of a governmental property interest
resolved, it should become clear that the public-access
channels are a public forum. 6 Outside of classic examples
——————
5 For example, during the railroad boom, governments obtained not
only physical easements in favor of the public over tracks used, owned,
and managed by private railroads, including rights to use the rails and
all relevant “fixtures and appurtenances,” see, e.g., Lake Superior &
Mississippi R. Co. v. United States, 93 U.S. 442, 444, 453–454 (1877),
but also, in some situations, rights to transmit personnel and freight for
free or at reduced rates, Ellis, Railroad Land Grant Rates, 1850–1945,
21 J. Land & P. U. Econ. 207, 209, 211–212 (1945).
6 Though the majority disagrees on the property question, I do not
take it seriously to dispute that this point would follow. See ante, at
10 MANHATTAN COMMUNITY ACCESS CORP. v. HALLECK
SOTOMAYOR, J., dissenting
like sidewalks and parks, a public forum exists only where
the government has deliberately opened up the setting for
speech by at least a subset of the public. Cornelius, 473
U.S., at 802. “Accordingly, the Court has looked to the
policy and practice of the government,” as well as the
nature of the property itself, “to ascertain whether it
intended to designate a place not traditionally open to
assembly and debate as a public forum.” See ibid. For
example, a state college might make its facilities open to
student groups, or a municipality might open up an audi-
torium for certain public meetings. See id., at 802–803.
The requisite governmental intent is manifest here. As
noted above, New York State regulations require that the
channels be made available to the public “on a first-come,
first-served, nondiscriminatory basis.” 16 N. Y. Codes,
Rules & Regs. §895.4(c)(4); see also §§895.4(c)(8)–(9). The
State, in other words, mandates that the doors be wide
open for public expression. MNN’s contract with Time
Warner follows suit. App. 23. And that is essentially how
MNN itself describes things. See Tr. of Oral Arg. 9 (“We
do not prescreen videos. We—they come into the door. We
put them on the air”). 7 These regulations “evidenc[e] a
clear intent to create a public forum.” Cornelius, 473
U.S., at 802.
B
If New York’s public-access channels are a public forum,
it follows that New York cannot evade the First Amend-
ment by contracting out administration of that forum to a
——————
14–15.
7 New York may be uncommon (as it often is); public-access channels
in other States may well have different policies and practices that make
them more like government speech than constitutional forums. See
Brief for Respondents 30–31; Brief for American Civil Liberties Union
et al. as Amici Curiae 13–15. New York’s scheme, however, is the only
one before us.
Cite as: 587 U. S. ____ (2019) 11
SOTOMAYOR, J., dissenting
private agent. When MNN took on the responsibility of
administering the forum, it stood in the City’s shoes and
became a state actor for purposes of 42 U.S. C. §1983.
This conclusion follows from the Court’s decision in West
v. Atkins, 487 U.S. 42 (1988). The Court in West unani-
mously held that a doctor hired to provide medical care to
state prisoners was a state actor for purposes of §1983.
Id., at 54; see also id., at 58 (Scalia, J., concurring in part
and concurring in judgment). Each State must provide
medical care to prisoners, the Court explained, id., at 54,
and when a State hires a private doctor to do that job, the
doctor becomes a state actor, “ ‘clothed with the authority
of state law,’ ” id., at 55. If a doctor hired by the State
abuses his role, the harm is “caused, in the sense relevant
for state-action inquiry,” by the State’s having incarcer-
ated the prisoner and put his medical care in that doctor’s
hands. Ibid.
The fact that the doctor was a private contractor, the
Court emphasized, made no difference. Ibid. It was “the
physician’s function within the state system,” not his
private-contractor status, that determined whether his
conduct could “fairly be attributed to the State.” Id., at
55–56. Once the State imprisoned the plaintiff, it owed
him duties under the Eighth Amendment; once the State
delegated those duties to a private doctor, the doctor
became a state actor. See ibid.; see also id., at 56–57. If
the rule were any different, a State would “ ‘be free to
contract out all services which it is constitutionally obli-
gated to provide and leave its citizens with no means
for vindication of those rights, whose protection has
been delegated to ‘private’ actors, when they have been
denied.’ ” Id., at 56, n. 14.
West resolves this case. Although the settings are dif-
ferent, the legal features are the same: When a govern-
ment (1) makes a choice that triggers constitutional obli-
gations, and then (2) contracts out those constitutional
12 MANHATTAN COMMUNITY ACCESS CORP. v. HALLECK
SOTOMAYOR, J., dissenting
responsibilities to a private entity, that entity—in agree-
ing to take on the job—becomes a state actor for purposes
of §1983. 8
Not all acts of governmental delegation necessarily
trigger constitutional obligations, but this one did. New
York State regulations required the City to secure public-
access channels if it awarded a cable franchise. 16 N. Y.
Codes, Rules & Regs. §895.4(b)(1). The City did award a
cable franchise. The State’s regulations then required the
City to make the channels it obtained available on a “first-
come, first-served, nondiscriminatory basis.” 9 §895.4(c)(4).
——————
8 Governments are, of course, not constitutionally required to open
prisons or public forums, but once they do either of these things,
constitutional obligations attach. The rule that a government may not
evade the Constitution by substituting a private administrator, mean-
while, is not a prison-specific rule. More than 50 years ago, for exam-
ple, this Court made clear in Evans v. Newton, 382 U.S. 296 (1966),
that the city of Macon, Georgia, could not evade the Fourteenth
Amendment’s Equal Protection Clause by handing off control of a park
to a group “of ‘private’ trustees.” Id., at 301. Rather, “the public
character of [the] park require[d] that it be treated as a public institu-
tion subject to the command of the Fourteenth Amendment, regardless
of who ha[d] title under state law.” Id., at 302.
9 Accordingly, this is not a case in which a private entity has been
asked to exercise standardless discretion. See, e.g., American Mfrs.
Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 52 (1999). Had New York law
left MNN free to choose its favorite submissions, for example, a differ-
ent result might well follow.
MNN has suggested to this Court that its contract with Time Warner
allows it “to curate content, to decide to put shows together on one of
our channels or a different channel.” Tr. of Oral Arg. 6; see Reply Brief
9. But MNN’s contract cannot defeat New York law’s “first-come, first-
served, nondiscriminatory” scheduling requirement, 16 N. Y. Codes,
Rules & Regs. §895.4(c)(4), and the discretion MNN asserts seems to be
at most some limited authority to coordinate the exact placement and
timing of the content it is obliged to accept indiscriminately, see Tr. of
Oral Arg. 25–26. That seems akin to the authority to make reasonable
time, place, and manner provisions, which is consistent with adminis-
tering any public forum. See Ward v. Rock Against Racism, 491 U.S.
781, 791 (1989). As for any factual assertions about how the channels
Cite as: 587 U. S. ____ (2019) 13
SOTOMAYOR, J., dissenting
That made the channels a public forum. See supra, at 9–
10. Opening a public forum, in turn, entailed First
Amendment obligations.
The City could have done the job itself, but it instead
delegated that job to a private entity, MNN. MNN could
have said no, but it said yes. (Indeed, it appears to exist
entirely to do this job.) By accepting the job, MNN accepted
the City’s responsibilities. See West, 487 U.S., at 55.
The First Amendment does not fall silent simply because a
government hands off the administration of its constitu-
tional duties to a private actor.
III
The majority acknowledges that the First Amendment
could apply when a local government either (1) has a
property interest in public-access channels or (2) is more
directly involved in administration of those channels than
the City is here. Ante, at 15. And it emphasizes that it
“decide[s] only the case before us in light of the record
before us.” Ibid. These case-specific qualifiers sharply
limit the immediate effect of the majority’s decision, but
that decision is still meaningfully wrong in two ways.
First, the majority erroneously decides the property ques-
tion against the plaintiffs as a matter of law. Second, and
more fundamentally, the majority mistakes a case about
the government choosing to hand off responsibility to an
agent for a case about a private entity that simply enters a
marketplace.
A
The majority’s explanation for why there is no govern-
——————
are operated in practice, this case arises from MNN’s motion to dismiss,
so the facts asserted against it must be accepted as true. Hernandez v.
Mesa, 582 U. S. ___, ___ (2017) (per curiam) (slip op., at 1). And any
uncertainty about the facts or New York law, in any event, would be a
reason to vacate and remand, not reverse.
14 MANHATTAN COMMUNITY ACCESS CORP. v. HALLECK
SOTOMAYOR, J., dissenting
mental property interest here, ante, at 14–15, does not
hold up. The majority focuses on the fact that “[b]oth
Time Warner and MNN are private entities”; that Time
Warner “owns its cable network, which contains the public
access channels”; and that “MNN operates those public
access channels with its own facilities and equipment.”
Ante, at 14; see also ante, at 15. Those considerations
cannot resolve this case. The issue is not who owns the
cable network or that MNN uses its own property to oper-
ate the channels. The key question, rather, is whether the
channels themselves are purely private property. An
advertiser may not own a billboard, but that does not
mean that its long-term lease is not a property interest.
See supra, at 8.
The majority also says that “[n]othing in the record here
suggests that a government . . . owns or leases either the
cable system or the public access channels at issue here.”
Ante, at 14. But the cable system itself is irrelevant, and,
as explained above, the details of the exchange that yielded
Time Warner’s cable franchise suggest a governmental
property interest in the channels. See supra, at 6–9.
The majority observes that “the franchise agreements
expressly place the public access channels ‘under the
jurisdiction’ of MNN,” ante, at 14, but that language sim-
ply describes the City’s appointment of MNN to administer
the channels. The majority also chides respondents for
failing to “alleg[e] in their complaint that the City has a
property interest in the channels,” ibid., but, fairly read,
respondents’ complaint includes such an assertion. 10 In
——————
10 Respondents alleged that the City “created an electronic public
forum” and “delegat[ed] control of that forum to” MNN. App. 17. They
further alleged that “[a]lmost all cable franchise agreements require
cable operators—as a condition for easements to use the public rights-
of-way—to dedicate some channels for programming by the public,” id.,
at 20, invoked the state regulations requiring the designation of a
channel here, id., at 21, and then alleged that the City’s franchise
Cite as: 587 U. S. ____ (2019) 15
SOTOMAYOR, J., dissenting
any event, any ambiguity or imprecision does not justify
resolving the case against respondents at the motion-to-
dismiss stage. To the extent the majority has doubts
about respondents’ complaint—or factual or state-law
issues that may bear upon the existence of a property
interest—the more prudent course would be to vacate and
remand for the lower courts to consider those matters
more fully. In any event, as I have explained, the best
course of all would be to affirm.
B
More fundamentally, the majority’s opinion erroneously
fixates on a type of case that is not before us: one in which
a private entity simply enters the marketplace and is then
subject to government regulation. The majority swings
hard at the wrong pitch.
The majority focuses on Jackson v. Metropolitan Edison
Co., 419 U.S. 345 (1974), which is a paradigmatic example
of a line of cases that reject §1983 liability for private
actors that simply operate against a regulatory backdrop.
Jackson emphasized that the “fact that a business is
subject to state regulation does not by itself convert its
action into that of the State.” Id., at 350; accord, ante, at
12. Thus, the fact that a utility company entered the
marketplace did not make it a state actor, even if it was
highly regulated. See Jackson, 419 U.S., at 358; accord,
——————
agreement “requires Time Warner to set aside” the channels, id., at 22.
While the complaint does not use the words “property interest,” those
allegations can be read to include the idea that whatever was “set
aside” or “dedicate[d],” id., at 20, 22, qualified as a sufficient City
property interest to support respondents’ assertion of a public forum.
Cf. People v. Brooklyn & Queens Transit Corp., 273 N.Y. 394, 400–401,
7 N.E.2d 833, 835 (1937) (discussing dedications of property to public
use); cf. also Denver Area Ed. Telecommunications Consortium, Inc. v.
FCC, 518 U.S. 727, 794 (1996) (Kennedy, J., concurring in part, con-
curring in judgment in part, and dissenting in part) (noting this
theory).
16 MANHATTAN COMMUNITY ACCESS CORP. v. HALLECK
SOTOMAYOR, J., dissenting
ante, at 12–13. The same rule holds, of course, for private
comedy clubs and grocery stores. See ante, at 9. 11
The Jackson line of cases is inapposite here. MNN is
not a private entity that simply ventured into the market-
place. It occupies its role because it was asked to do so by
the City, which secured the public-access channels in
exchange for giving up public rights of way, opened those
channels up (as required by the State) as a public forum,
and then deputized MNN to administer them. That dis-
tinguishes MNN from a private entity that simply sets up
shop against a regulatory backdrop. To say that MNN is
nothing more than a private organization regulated by the
government is like saying that a waiter at a restaurant is
——————
11 There was a time when this Court’s precedents may have portended
the kind of First Amendment liability for purely private property
owners that the majority spends so much time rejecting. See Marsh v.
Alabama, 326 U.S. 501, 505–509 (1946) (treating a company-owned
town as subject to the First Amendment); Food Employees v. Logan
Valley Plaza, Inc., 391 U.S. 308, 315–320, and n. 9, 325 (1968) (extend-
ing Marsh to cover a private shopping center to the extent that it
sought to restrict speech about its businesses). But the Court soon
stanched that trend. See Lloyd Corp. v. Tanner, 407 U.S. 551, 561–567
(1972) (cabining Marsh and refusing to extend Logan Valley); Hudgens
v. NLRB, 424 U.S. 507, 518 (1976) (making clear that “the rationale of
Logan Valley did not survive” Lloyd). Ever since, this Court has been
reluctant to find a “public function” when it comes to “private commer-
cial transactions” (even if they occur against a legal or regulatory
backdrop), see, e.g., Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 161–163
(1978), instead requiring a closer connection between the private entity
and a government or its agents, see, e.g., Brentwood Academy v. Ten-
nessee Secondary School Athletic Assn., 531 U.S. 288, 298 (2001)
(nonprofit interscholastic athletic association “pervasive[ly] entwine[d]”
with governmental institutions and officials); Lugar v. Edmondson Oil
Co., 457 U.S. 922, 942 (1982) (state-created system “whereby state
officials [would] attach property on the ex parte application of one party
to a private dispute”); see also Burton v. Wilmington Parking Authority,
365 U.S. 715, 723–725 (1961) (restaurant in municipal parking garage
partly maintained by municipal agency); accord, ante, at 6–7. Jackson
exemplifies the line of cases that supplanted cases like Logan Valley—
not cases like this one.
Cite as: 587 U. S. ____ (2019) 17
SOTOMAYOR, J., dissenting
an independent food seller who just happens to be highly
regulated by the restaurant’s owners.
The majority also relies on the Court’s statements that
its “public function” test requires that a function have
been “traditionally and exclusively performed” by the
government. Ante, at 6 (emphasis deleted); see Jackson,
419 U.S., at 352. Properly understood, that rule cabins
liability in cases, such as Jackson, in which a private actor
ventures of its own accord into territory shared (or regu-
lated) by the government (e.g., by opening a power com-
pany or a shopping center). The Court made clear in West
that the rule did not reach further, explaining that “the
fact that a state employee’s role parallels one in the pri-
vate sector” does not preclude a finding of state action.
487 U.S., at 56, n. 15.
When the government hires an agent, in other words,
the question is not whether it hired the agent to do some-
thing that can be done in the private marketplace too. If
that were the key question, the doctor in West would not
have been a state actor. Nobody thinks that orthopedics is
a function “traditionally exclusively reserved to the State,”
Jackson, 419 U.S., at 352.
The majority consigns West to a footnote, asserting that
its “scenario is not present here because the government
has no [constitutional] obligation to operate public access
channels.” Ante, at 7, n. 1. The majority suggests that
West is different because “the State was constitutionally
obligated to provide medical care to prison inmates.” Ante,
at 7, n. 1. But what the majority ignores is that the State
in West had no constitutional obligation to open the prison
or incarcerate the prisoner in the first place; the obligation
to provide medical care arose when it made those prior
choices.
The City had a comparable constitutional obligation
here—one brought about by its own choices, made against
a state-law backdrop. The City, of course, had no constitu-
18 MANHATTAN COMMUNITY ACCESS CORP. v. HALLECK
SOTOMAYOR, J., dissenting
tional obligation to award a cable franchise or to operate
public-access channels. But once the City did award a
cable franchise, New York law required the City to obtain
public-access channels, see supra, at 2, and to open them
up as a public forum, see supra, at 9–10. That is when the
City’s obligation to act in accordance with the First
Amendment with respect to the channels arose. That is
why, when the City handed the administration of that
forum off to an agent, the Constitution followed. See
supra, at 10–13. 12
The majority is surely correct that “when a private
entity provides a forum for speech, the private entity is
not ordinarily constrained by the First Amendment.”
Ante, at 9. That is because the majority is not talking
about constitutional forums—it is talking about spaces
where private entities have simply invited others to come
speak. A comedy club can decide to open its doors as wide
as it wants, but it cannot appoint itself as a government
agent. The difference is between providing a service of
one’s own accord and being asked by the government to
administer a constitutional responsibility (indeed, here,
existing to do so) on the government’s behalf. 13
——————
12 Jackson v. Metropolitan Edison Co., 419 U.S. 345 (1974), by con-
trast, exemplifies a type of case in which a private actor provides a
service that there is no governmental obligation to provide at all. See
id., at 353 (no state requirement for government to provide utility
service); see also, e.g., Hudgens, 424 U.S. 507 (shopping center). In
West v. Atkins, 487 U.S. 42 (1988), by contrast, the prison was obli-
gated to provide health care in accordance with the Eighth Amendment to
its prisoners once it incarcerated them, and here, the City was required
to provide a public forum to its residents in accordance with the First
Amendment once it granted the cable franchise. See supra, at 11–13.
13 Accordingly, the majority need not fear that “all private property
owners and private lessees who open their property for speech [c]ould
be subject to First Amendment constraints.” Ante, at 10. Those kinds
of entities are not the government’s agents; MNN is. Whether such
entities face “extensive regulation” or require “government licenses,
government contracts, or government-granted monopolies,” ante, at 12,
Cite as: 587 U. S. ____ (2019) 19
SOTOMAYOR, J., dissenting
To see more clearly the difference between the cases on
which the majority fixates and the present case, leave
aside the majority’s private comedy club. Imagine instead
that a state college runs a comedy showcase each year,
renting out a local theater and, pursuant to state regula-
tions mandating open access to certain kinds of student
activities, allowing students to sign up to perform on a
first-come, first-served basis. Cf. Rosenberger v. Rector
and Visitors of Univ. of Va., 515 U.S. 819 (1995). After a
few years, the college decides that it is tired of running the
show, so it hires a performing-arts nonprofit to do the job.
The nonprofit prefers humor that makes fun of a certain
political party, so it allows only student acts that share its
views to participate. Does the majority believe that the
nonprofit is indistinguishable, for purposes of state action,
from a private comedy club opened by local entrepreneurs?
I hope not. But two dangers lurk here regardless. On
the one hand, if the City’s decision to outsource the chan-
nels to a private entity did render the First Amendment
irrelevant, there would be substantial cause to worry
about the potential abuses that could follow. Can a state
university evade the First Amendment by hiring a non-
profit to apportion funding to student groups? Can a city
do the same by appointing a corporation to run a munici-
pal theater? What about its parks?
On the other hand, the majority hastens to qualify its
decision, see ante, at 7, n. 1, 15, and to cabin it to the
specific facts of this case, ante, at 15. Those are prudent
limitations. Even so, the majority’s focus on Jackson still
risks sowing confusion among the lower courts about how
and when government outsourcing will render any abuses
that follow beyond the reach of the Constitution.
In any event, there should be no confusion here. MNN
——————
is immaterial, so long as they have not accepted the government’s
request to fulfill the government’s duties on its behalf.
20 MANHATTAN COMMUNITY ACCESS CORP. v. HALLECK
SOTOMAYOR, J., dissenting
is not a private entity that ventured into the marketplace
and found itself subject to government regulation. It was
asked to do a job by the government and compensated
accordingly. If it does not want to do that job anymore, it
can stop (subject, like any other entity, to its contractual
obligations). But as long as MNN continues to wield the
power it was given by the government, it stands in the
government’s shoes and must abide by the First Amend-
ment like any other government actor.
IV
This is not a case about bigger governments and smaller
individuals, ante, at 16; it is a case about principals and
agents. New York City opened up a public forum on public-
access channels in which it has a property interest. It
asked MNN to run that public forum, and MNN accepted
the job. That makes MNN subject to the First Amend-
ment, just as if the City had decided to run the public
forum itself.
While the majority emphasizes that its decision is nar-
row and factbound, ante, at 15, that does not make it any
less misguided. It is crucial that the Court does not con-
tinue to ignore the reality, fully recognized by our prece-
dents, that private actors who have been delegated consti-
tutional responsibilities like this one should be
accountable to the Constitution’s demands. I respectfully
dissent.