Supreme Court Argument in PEG 1st Amendment Case Keys In on First Come, First Served
The Supreme Court's decision on the operator of Manhattan's public access channels being sued for allegedly violating the First Amendment rights of content producers banned from it (see 1810170027) could largely depend on the meaning of first come, first served. That was a central issue in oral argument Monday. A decision is likely in May or June, both sides told us. April is possible though that would be notably quick, said respondents' counsel Paul Hughes of Mayer Brown.
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Much of argument involved the line between a public entity and a private one that's engaged by the city and administrates city and state policy. Michael de Leeuw of Cozen O'Connor, counsel for petitioner Manhattan Community Access, aka Manhattan Neighborhood Network, said MNN isn't a state actor under any court test, isn't controlled by New York City and didn't act jointly with the city. He said there's lengthy precedent that simply being regulated doesn't make an entity public. When a government creates but doesn't retain control of a forum, that's not a designated public forum with constitutional dimensions, he said.
Respondents' counsel Hughes said New York's general access policy of first come, first served means it lacks discretion and can't decline content. Asked by Justice Elena Kagan where the line would be if MNN had some editorial discretion over what it carried, Hughes said the key is whether it operates under a general access or selected access policy.
Kagan tried to liken public, educational and government channels to cable operators that are unable to operate without access to public rights of way (ROWs) and the public extracting certain conditions in exchange. De Leeuw said the MNN-city contract gives the city power over government and educational channel content, but not public access content. Asked by Chief Justice John Roberts if the city could remove MNN, de Leeuw said it's unclear since there's no express provision in the city's franchise agreement.
Justices also repeatedly challenged de Leeuw under a hypothetical situation of MNN being in charge of running a city-owned theater or of scheduling at a Central Park facility. De Leeuw said a key differentiator is whether the city owns the property; Charter Communications owns the cable system MNN uses. Justices also queried de Leeuw about discretion MNN has over content. Justice Stephen Breyer challenged whether it has any, since content must meet such standards as being noncommercial and on a first-come, first-served basis. "Putting shows on channel 14 vs. channel 16" doesn't seem like real discretion, Breyer said.
Breyer, in a dialogue with Hughes, said that the city doesn't appoint most of MNN's board "seems to cut against you." He said it's unclear if there's a state remedy to the content creators' complaint that resulted in the First Amendment claims against MNN. Justice Brett Kavanaugh told Hughes the multiple school access cases he referred to involve government property not privately owned -- albeit heavily regulated -- facilities, so it's not clear they help his case. Asked by Kavanaugh whether utilities are government actors since they have ROW access, Hughes said utilities aren't exercising a government function in that scenario.
Judges pressed Hughes on what interest the government has in PEG channels. Interest is in the channels themselves and programming on them, as reflected by existence of the first-come, first-served policy, he said. There's a big factual dispute on what first come, first served means, Roberts said.
De Leeuw said respondents' view of a public function "radically" expands the traditional definition, and that operating public access channels is a function government never held in the cable system. He said MNN's franchise agreement with the city doesn't say the channels are a public forum -- something that could have been explicitly done by requiring the city to appoint most board members.