A perfectly partisan 5-4 Supreme Court opinion in June took the “public” out of public access channels. From now on, if a private party runs a public access channel, then censorship rules. Brett Kavanaugh wrote the opinion. John Roberts, Jr., Clarence Thomas, Samuel Alito and Neil Gorsuch agreed. The four Democratic appointees all dissented.
New York granted rights to a company to wire up the city for cable service. In exchange, New York required the cable company to carry a public access channel where “air time on the public access channels must be free, and programming must be aired on a first-come, first-served basis.” The public access channel was run by a nonprofit corporation, MNN.
For decades, everything was fine — until this happened:
DeeDee Halleck and Jesus Papoleto Melendez … 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 televised the film. Afterwards, MNN fielded multiple complaints about the film’s content. In response, MNN temporarily 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.
Apparently, MNN’s feelings were so badly hurt that they had to permaban the filmmakers — sort of like these large online companies often do. So Brett Kavanaugh asks:
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?
Brett Kavanaugh decides that the public access channel “is not subject to First Amendment constraints on how it exercises its editorial discretion with respect to the public access channels.” In short, public is private.
Since 1971, New York has been granting valuable easements to cable companies on condition that the companies carry public access channels with actual public access, as dissenter Sonia Sotomayor explains:
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. New York then requires that those public-access channels be open to all comers on “a first-come, first-served, nondiscriminatory basis.” 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. (citations omitted)
Everyone knew the deal before they chose to become involved. But suddenly, a privatized public access channel can use its free speech rights to shut up and censor people in the community. Sound familiar?
This is yet another extension of the Constitutional corporate personhood doctrine that barely existed back in 1971. But since then, a series of “free speech” cases have rewritten the Constitution to benefit corporations. If anyone would have conceived such a thing to be a free speech violation in 1971, then this deal would not have occurred. New York would have kept administration of the public access channel to itself.
Near the end of the opinion, Brett Kavanaugh downplays the significance of the ruling:
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.
In other words, New York can drop some big taxpayer bucks and buy the channel back if or when it becomes available and maybe that will be okay — but it “depends” on things Brett hasn’t seen. However, Brett Kavanaugh reveals his giant ideology here:
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.
Let’s understand exactly what he means here: If we don’t overturn these long-standing state laws, upset the expectations and agreements of all parties involved, and end the requirement that public access channels serve the public, then all property owners would lose their rights. No Brett. That’s called ideology. Now pass me another beer.