Individual TV Producers Allowed to Sue Private Operator of Public Access Channel Over Controversial Video

In New York, cable TV providers must provide their customers at least one public access channel.  A public access channel is one that is “designated for noncommercial use by the public on a first-come, first-served, nondiscriminatory basis.”  In Manhattan, a private non-profit corporation called Manhattan Neighborhood Network (MNN) operates one of Manhattan’s public access channels.

In 2012, MNN aired a 25-minute video made by Deedee Halleck, who is no stranger to Manhattan public access television.  Her video was titled “The 1% Visits El Barrio,” and was actually about MNN.  El Barrio was a new community media center that had opened in East Harlem, and Halleck interviewed people who were invited to attend an event hosted by MNN to mark El Barrio’s opening.  Halleck’s video conveyed her view that MNN was “more interested in pleasing the 1% than addressing the community programming needs of those living in East Harlem.”  After the video aired, MNN banned Halleck from submitting programming and prohibited her from using MNN facilities because her 1% video violated MNN’s policy barring “participation in harassment or aggravated threat toward staff and/or other producers.”

The El Barrio Firehouse Community Media Center operated by MNN.

Halleck sued, claiming that MNN was violating her First Amendment rights by treating her differently because of her viewpoint—almost always a constitutional no-no.  MNN’s response was straightforward:  the First Amendment applies only to the government, and MNN is a private corporation.  But in a 2-1 decision earlier this year, the Second Circuit Court of Appeals allowed Halleck’s suit to go forward.  While ordinarily private companies need not comply with the First Amendment, they will have to if they “have a sufficient connection to governmental authority to be deemed state actors.”  And MNN was designated by Manhattan to operate a public access channel.  The Court declared that a public access channel is a “public forum“—akin to a public street or sidewalk—and thus that MNN and its employees are subject to First Amendment lawsuits.  The Court found that public access channels are “the video equivalent of the speaker’s soapbox”  and the “electronic version of the public square.”

Case: Halleck v. Manhattan Cmty. Access Corp., No. 16-4155 (2d Cir. Feb. 9, 2018) (opinion here)