In a June 16, 2019 decision, Manhattan Community Access Corp. v. Halleck, 2019 WL 2493920, the Supreme Court considered whether a private entity’s act of barring two individuals from placing programming on public access channels constituted “state action.”[i]  Even by the standards of constitutional law doctrines, the “state action” doctrine is unusually complex; indeed arguably the entire enterprise is conceptually incoherent.

As Justice Kavanaugh, author of the opinion for the Court in Manhattan Community Access Corp., explained: “a private entity can qualify as a state actor in a few limited circumstances—including, for example, (i) when the private entity performs a traditional, exclusive public function; (ii) when the government compels the private entity to take a particular action; or (iii) when the government acts jointly with the private entity.”  Manhattan Community Access Corp., at *4 (citations omitted).[ii]  With regard to the first test, the traditional public function test, the analysis appears straightforward.  Because the test turns on whether a function is in fact exclusively performed by governmental actors, the test will almost never be satisfied with regard to any function due to the increasing out-sourcing of government services.[iii]

Traditional Public Functions: The Need for a Normative Component?

Perhaps the traditional public function test should have a normative component.[iv]  For example, private entities currently operate prisons and detention facilities.[v]  As a descriptive matter then, operating such institutions is not an exclusively public function.  Nevertheless, running such operations should be considered an exclusive public function — whatever entity operates such facilities, whether a governmental or a private one, that entity should be obligated to observe and conform to constitutional constraints.  This resembles the torts concept of non-delegable duties, in which a principal can delegate the performance of a function to an independent contractor, but cannot thereby relieve itself of the responsibility for the independent contractor’s failure to perform the function properly.  RESTATEMENT (THIRD) OF TORTS: PHYSICAL & EMOTIONAL HARM §§ 57-65 (2012).[vi]  The determination of such non-delegable duties turn on normative assessments of responsibility, not descriptive conclusions regarding the frequency with which such responsibilities are delegated to others.  Of course, here the argument is that by delegating particular tasks to a private entity, the government cannot free itself, or its agent, of the obligation to comply with the constitutional limitations on government.

Moreover, recognition of a normative component would place the conclusion that administration of elections is a traditional public function on firmer footing.  The Court held that election administration was a public function in a series of cases dubbed the “White Primary Cases” spanning from the early 1930’s to the early 1950’s.[vii]  But various aspects of election administration have long since been outsourced to private companies.[viii]  Thus, while it may well have been true that elections for public office were exclusively administered by public employees in the 1930’s, 1940’s, and 1950’s, that is arguably no longer the case.  And to follow Justice Kavanaugh’s mode of analysis more completely,[ix] many private organizations also run elections for their officers.  Thus, the Court’s rulings regarding election administration may appear to stand on empirically-precarious grounds.  But given the critical nature of elections in collective self-determination and democratic governance, there is a strong normative case for concluding that the administration of elections should be considered a traditional public function.

The Court’s Decision

In Manhattan Community Access Corp. v. Halleck, the court concluded that Manhattan Community Access Corp. (“MNN”), the private company that controlled the public access channels of provided by Time Warner, Manhattan’s local cable provider, was not a state actor.  This might appear unsurprising — after all many moderators of public access channels are not government entities.[x]

But such a simplistic answer ignores certain facts. First, Time Warner provided the channels, relinquishing its editorial control over them, in exchange for the right to maintain its cables under Manhattan’s streets and rights of way.   Id. at *9, *13 (Sotomayor, J., dissenting).  Second, by state law the channels were designated to be used on a “first-come-first-served basis,” id. at *3, *7; accord, id. at, *9, *13, *14 (Sotomayor, J., dissenting), just like government-owned traditional public fora, see, id. at *13 (Sotomayor, J., dissenting).   Third, New York City negotiated for the right to select the entity who would serve as the moderator, or “traffic cop,” for the channels, i.e., make “time, place, and manner” decisions regarding the content to be broadcast.  Id. at *9, *14 n.9 (Sotomayor, J., dissenting).  Fourth, an elected city official, the Manhattan Borough President, designated MNN, which was created with the assistance of New York City largely for the purposes of exercising that function.  Id. at *9-*10 (Sotomayor, dissenting).

The question that divided the Justices was the starting point for the analysis.  The majority began by deciding whether MNN was engaging in functions that were, at least sometimes, performed by private entities.  It resolved the question largely as an empirical matter.  (The majority then proceeded to determine whether MNN was otherwise so entangled with the government that it should be treated as a government actor, and found that MNN was not, Manhattan Community Access Corp. at *6-*8.)  The majority considered the obligations that arise when government creates a traditional public forum irrelevant, due to MNN’s status as a private actor.[xi]

By way of contrast, the dissent began with the question of the obligations that arise when a government self-consciously creates a traditional public forum.  Id. at *10-*13 (Sotomayor, J., dissenting).  Whether the government choses a private party to moderate the forum or elects to serve as the moderator itself was of no matter.  Manhattan Community Access Corp. at *9, *14 (Sotomayor, J., dissenting) (“[w]hen a government (1) makes a choice that triggers constitutional obligations, and then (2) contracts out those constitutional responsibilities to a private entity, that entity—in agreeing to take on the job—becomes a state actor”).

The Role of Government-Created Fora in Democratic Governance

Numerous privately-owned for a play a critical role in democratic self-governance; thus the First Amendment protects means of communications created and controlled by private entities, even when they provide space for others to express their own views.  See Manhattan Community Access Corp. at *6.  But government-created public fora for discussion of public issues have also played a critical role in civic life going back to the Ancient Greek city states.  Those city-states had a central public space, the agora, which was the center of the athletic, artistic, spiritual and political life of the city.[xii]  The tradition of government-created public fora was described in Hague v. CIO, 307 U.S. 496 (1939):

“Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens.”

In International Society for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672 (1992) (“ISKCON”), involving airport concourses, Justice Kennedy picked up on the theme.

“The liberties protected by the public forum doctrine . . . are essential to a functioning democracy. . . At the heart of our jurisprudence lies the principle that in a free nation citizens must have the right to gather and speak with other persons in public places. The recognition that certain government-owned property is a public forum provides open notice to citizens that their freedoms may be exercised there without fear of a censorial government, adding tangible reinforcement to the idea that we are a free people.”

Id. at 696 (Kennedy, concurring in the judgment).  Justice Kennedy, for himself and three others, warned that absent a recognition that “the policies underlying the doctrine cannot be given effect unless we recognize that open, public spaces and thoroughfares that are suitable for discourse may be public forums, whatever their historical pedigree,” the public forum doctrine would “retain[] no relevance in times of fast-changing technology and increasing insularity.”  Id. at 697-98 (Kennedy, concurring in the judgment).

Thus access to government-created fora on a content-neutral basis plays a central functional role in democratic governance, and such fora are subject to special restriction.  These restrictions are no less important merely because the political branches of government have recognized the importance of maintaining the vibrancy of public fora and taken steps to ensure that new types of public fora are created as methods of communications advance.

Through a combination of the actions of by Congress, New York State, and the City of New York, New York created a modern-day technological forum for the purposes laid out in Hague v. CIO and the discussion of Justice Kennedy above.  By federal statute, Congress authorized states to secure public access, educational, and governmental channels from cable providers as a condition of receipt or renewal of cable franchises.  Cable Communications Policy Act of 1984, Pub. L. 98-549, § 2, 98 Stat. 2782 (Oct. 30, 1984) (codified as amended at 47 U.S.C. § 531).  As the relevant House Committee Report explained:

“One of the greatest challenges over the years in establishing communications policy has been assuring access to the electronic media by people other than the licensees or owners of those media . . .  Public access challenges are often the video equivalent of the speaker’s soap box or the electronic parallel to the printed leaflet.  They provide grounds and individuals who generally have not had access to the electronic media with the opportunity to become sources of information in the electronic marketplace of ideas.”

H.R. Rep. No 98-934 30 (Aug. 1, 1984).

And the New York State Public Utility Commission has defined the distinctive obligations the entities designated to control the programming space on public access channels. [xiii]  The Commission did not seek to establish a means by which a private speaker could control a cable channel either to express its own views or to exercise editorial control over the channel’s content.  Had that been the Commission’s intent, there would be justifiable concern about governmental intrusion into the First Amendment rights of those designated to control public access channels.  But Congress has taken other steps to ensure such speakers’ access to cable systems, including imposing “must-carry” and “leased access” obligations upon cable providers. [xiv]

The role of the manager of the public access channels was precisely not to speak for itself (or at least not to have any greater privilege than anyone else to speak for itself) but to manage the channels without engaging in content-based decision-making, 16 N. Y. Codes, Rules & Regs. §§ 8954(c)(8)–(9).  And that precisely describes the role a government would play in any public forum it self-consciously creates.  Thus, Manhattan Community Access Corp. appears to present one of those situations where, under the traditional public function test, the normative analysis should predominate over the descriptive.  Whether or not private entities sometimes or even often serve this “traffic cop” role in government-created fora, serving in that role should be a function exclusively exercised by entities, be they public or private, having governmental responsibilities.  The most notable such responsibility should be the duty to act in conformance with the U.S. Constitution.

Conclusion

The majority failed to take the considerations set forth above into account in its analysis.  It either failed to recognize the concerns above or improperly equated them with the importance of private entities’ control of privately-created fora offering opportunities for others to express their views, see Manhattan Community Access Corp. at *6.  The dissent’s analysis is on point, but is too tied to arguments regarding the nature of the government’s property interest in the fora, and does not expressly raise the broader issue of whether the traditional public function doctrine must have a normative aspect.

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[i] In the interest of full disclosure, I participated in a moot court for Manhattan Community Access Corp. counsel to help prepare him for oral argument.

[ii] Citations are to the LEXIS pagination.

Interestingly, the majority omitted any reference to two opinions expressing the broadest view of state action, Shelley v. Kramer, 334 U.S. 1 (1948)(enforcement of racially restrictive covenants constitutes “state action”), and Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961) (“symbiotic relationship” provides a basis for finding a private party’s conduct to be state action).  Nor did the majority acknowledge another expansive “state action” test, the “public entertwinement” test set forth in Brentwood Academy v. Tennessee Secondary School Athletic Association, 531 U.S. 288 (2001), while citing the case for other propositions.

[iii] For a discussion of this trend, see PAUL R. VERKUIL, OUTSOURCING SOVEREIGNTY: WHY PRIVATIZATION OF GOVERNMENT FUNCTIONS THREATENS DEMOCRACY AND WHAT WE CAN DO ABOUT IT (Cambridge University Press 2007).

[iv] Actually, the empirical test itself rests on a sort normative proposition, namely that if all or almost all governments have not privatized a function, the function should not be privatized.  Why else interfere with one jurisdiction’s decision to privatize a function simply because no other jurisdiction has previously done so?

[v] The Sentencing Project, Fact Sheet: Private Prisons in the United States (August 2018); Tara Joy, The Problem with Private Prisons, THE WESLEYAN ARGUS, (Feb. 2, 2018).

Indeed, even significant aspects of military operations have been privatized.  See Corporate Warriors: The Rise and Ramifications of the Privatized Military Industry at 4 (International Security, Vol. 26, No. 3, Winter 2001/2002.)

[vi] Granted, the question here is the obligations of the agent, not the principal.  But in the torts context the independent contractor is never relieved of liability for its own tortious acts, whether it is carrying out a delegable or non-delegable duty of the principal.

[vii]  Terry v. Adams, 345 U. S. 461, 468–470 (1953); Smith v. Allwright, 321 U. S. 649, 662–666 (1944); Nixon v. Condon, 286 U. S. 73, 84–89 (1932).  The series of cases and responses by the State of Texas to exclude African-Americans from exercising the franchise showed that Texas was nothing if not persistent.

[viii] Kim Zetter, The Crisis of Election Security, N.Y. TIMES (Sept. 26, 2018).  Outsourcing of elections in other countries, Anne-Marie Oostveen, Outsourcing Democracy: Losing Control of E-Voting in the Netherlands, 2 POLICY & INTERNET (2010), confirm the potential that jurisdictions in the U.S. will turn to outsourcing.

[ix] Id. at *6 (“Providing some kind of forum for speech is not an activity that only governmental entities have traditionally performed. . . . In short, merely hosting speech by others is not a traditional, exclusive public function”).

[x] As the majority observed: “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, including: private cable operators; private nonprofit organizations; municipalities; and other public and private community organizations such as churches, schools, and libraries.”  Manhattan Community Access Corp. at *5.

[xi] Justice Kavanaugh assiduously avoided considering the case to be a First Amendment case.

[xii] “[D]espite the ways cities have grown and sprawled, their centres are especially important. At their very heart is the agora, the democratic meeting place: the public square.”  Jonathan Glancey, The Violent History Of Public Squares, BBC CULTURE (Dec. 3, 2014).

[xiii] As Justice Sotomayor explained: “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).”

[xiv] Cable Television Consumer Protection and Competition Act of 1992, Pub. L. 102–385, 106 Stat. 1460 (codified as amended at 47 U.S.C.A. § 534(b)(1)(must-carry provision); Cable Communications Policy Act of 1984, Pub. L. 98-549, § 2, 98 Stat. 2782 (Oct. 30, 1984)(codified as amended at 47 U.S.C. § 532(b))(leased access).

The constitutionality of imposing “must carry” provisions was upheld in Turner Broadcasting System v. FCC, 520 U.S. 180 (1997).  But even before Congress enacted must carry provisions, the FCC had adopted must carry rules.  See, Quincy Cable TV, Inc. v. FCC, 768 F.2d 1434 (D.C. Cir. 1985), cert. denied, 476 U.S. 1169 (1986).

“A ‘leased channel’ is a channel that federal law requires a cable system operator to reserve for commercial lease by unaffiliated third parties.”  Denver Area Educational Telecommunications Consortium, Inc. v. F.C.C., 518 U.S. 727, 734 (1996).  The provision imposing the obligation was discussed extensively in Denver Area Educational Telecommunications Consortium.