Jun 26, 2019

Halleck Decision Poses Problems for Both Net Neutrality and Platform Neutrality Activists

Brent Skorup Senior Research Fellow , Christian McGuire Communications Associate

Last week, the Supreme Court ruled in Manhattan Community Access Corp. v. Halleck that the private operator of a public access channel is not legally bound by the First Amendment. This decision could have important and beneficial ramifications for future cases involving net neutrality and platform regulation issues.

The origins of law at issue in the Halleck case trace back to the 1980s, when Congress required cable operators to reserve cable system capacity for local governments. Many of the public access channels that resulted, including the Manhattan Community Access Corporation (known as MNN), are proto-net neutrality creations: individual TV channels that must be held open on a quasi-common carrier basis.

Years ago, New York City designated MNN, a private, nonprofit entity, to operate the city TV channel, set aside (per federal law) by Time Warner Cable. MNN suspended and then turned away some programmers who had been critical of the nonprofit.

The programmers tried to get back on the air and argued that the city TV channel is a public forum and, as a private operator of the city’s channel, MNN was a state actor bound by the First Amendment in its programming curation decisions.

The basic constitutional question in Halleck was, “When Congress compels media distributors to reserve distribution rights for public entities, and an affected city designates a private entity to make programming decisions, is the private entity subject to the First Amendment?” The Court held that the answer is “no:” the private operator is not subject to the First Amendment’s restrictions.

The justices split on a 5-4 decision, and the main disagreement was whether or not the city government had a property interest in the reserved TV channels. The majority decided that the government did not have a property interest. But the dissenting justices argued that there was, and therefore the TV channel is a public forum subject to the First Amendment.

In our opinion, the dissent made the stronger argument. Surprisingly, it is an argument typically associated with libertarian legal theory: the city acquired a property interest when Congress compelled reservation of TV channels for local government.

If the dissent is correct that public entities acquire a property interest in cable system capacity, that means must-carry and other channel reservation mandates are subject to Fifth Amendment takings analysis. They would probably be subject to the First Amendment as well. This would have major implications for net neutrality, common carrier, and internet platform regulations.

However, while the dissenters had a strong point on the property interest angle, they were clear that they were comfortable with laws allowing cities to withhold an operating license from media distributors who don’t reserve distribution rights to public actors. Further, they were confident that cities can compel the media distributor to fund government speech, which Time Warner Cable had been doing.

But the case serves as bad news for both parties. Some in the GOP would like to require internet platforms to abide by the First Amendment when they censor, shadowban, or ban users. This case undermines that effort. Similarly, many Democrats would like to impose net neutrality rules, which strictly limit internet service providers’ content curation abilities to only illegal content. Those regulations were equivocal and loopholed when enacted in 2015, but they look less justifiable now.

For more on this topic, see Brent Skorup and JP Mohler’s comment to the FCC on leased access mandates: “Leased Access Mandates Infringe on the First Amendment Rights of Cable Operators.”

Photo credit: Alex Wong/Getty Images

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