Business & Practice

Producers’ Free Speech Claims Against Public TV Advance

Feb. 15, 2018, 12:30 PM

• Public access channels are public forums, Second Circuit holds

• Holding creates circuit split with D.C. Circuit

A First Amendment suit against operators of a public access channel in New York City that refused to run a program about a media center in East Harlem will proceed after a federal appeals ruling Feb. 9.

The U.S. Court of Appeals for the Second Circuit held that public access channels are electronic versions of public squares and are thus public forums, creating a circuit split with the U.S. Court of Appeals for the D.C. Circuit.

Here, two television producers filmed an event hosted by Manhattan Neighborhood Network marking the opening of the El Barrio Firehouse Community Media Center. They titled the video “The 1% Visits the Barrio,” because they felt that the cable network was more interested in pleasing the wealthy than addressing the programming needs of those living in East Harlem. The producers were suspended after the video aired because, they allege, of the way they portrayed MNN. The network argued the video violated its program content restrictions prohibiting harassment of staff or other producers.

The producers then sued MNN, alleging it violated their First Amendment rights by suspending them because of disapproval of the program’s content.

Need to Be State Actor

The plaintiffs’ First Amendment claim against MNN is only viable if it is a state actor because the First Amendment limits only governmental action, Judge Jon O. Newman wrote for the court.

Public forums are generally operated by governments but MNN is operated by a private non-profit corporation, it said. Nevertheless, there is a “sufficient connection to governmental authority” to deem it a state actor because the Manhattan borough president designated MNN to run the public access channels, the court said.

It sent the case back to the district court to determine whether the MNN defendants violated the Constitution.

Judge Raymond J. Lohier Jr. concurred in a separate opinion and Judge Dennis Jacobs concurred in part and dissented in part, finding that MNN wasn’t a state actor.

Robert T. Perry of Brooklyn, N.Y., represented the producers.

Cozen O’Connor and the Corporate Counsel of the City of New York represented the defendants.

The case is Halleck v. Manhattan Cmty. Access Corp., 2d Cir., No. 16-4155, 2/9/18.

To contact the reporter on this story: Melissa Heelan Stanzione in Washington at mstanzione@bloomberglaw.com To contact the editor responsible for this story: Jessie Kokrda Kamens at jkamens@bloomberglaw.com

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