Public Access Television and Free Speech
June 20, 2019 2:17 PM   Subscribe

Opinion analysis: Court holds that First Amendment does not apply to private operator of public-access channels From the majority's opinion: “MNN, as a private actor, is not subject to First Amendment constraints on how it exercises editorial discretion over the speech and speakers on its public access channels.” From the minority's dissent: “Just as the City would have been subject to the First Amendment had it chosen to run the” channels itself, MNN “assumed the same responsibility when it accepted the delegation” to run the channels and must comply with the First Amendment.”

This case started in 2012, and finally had it's day in the highest court in the land.

Originally the U.S. Court of Appeals for the 2nd Circuit allowed their lawsuit to go forward, ruling that MNN is a state actor because the local government chose MNN to operate public-access channels on Manhattan’s cable system.

The verdict from the Supreme court over turned that decision by a 5-4 vote.

The majority was written by Justice Brett Kavanaugh for the majority, in an opinion that was joined by Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito and Neil Gorsuch.

The minority Justice Sonia Sotomayor dissented, in an opinion that was joined by Justices Ruth Bader Ginsburg, Stephen Breyer and Elena Kagan.

This case will set precedent for the future, and could lead to very interesting new cases about who is and is not liable under the First Amendment.

(FPP author's note, I work for a Public Access Television studio in Portland, OR and know a few people who work at MNN. The office is abuzz by this ruling.)
posted by daq (29 comments total) 15 users marked this as a favorite
 
Uh, for us Canadians and non-USians in the house:

• What's Public Access Television?
• What does this ruling mean, practically speaking?
posted by Quackles at 2:39 PM on June 20, 2019 [5 favorites]


So, essentially, all a state actor need do in order to sidestep the Constitution (because, of course, this ruling is gonna be extrapolated beyond 1A, and applied to every other amendment) is to farm-out the work/program/service to a private company that is ideologically in-step with said government? Given that a yuuuuuuge chunk of government services are contracted-out, this ruling can potentially have some really devastating effects.
posted by Thorzdad at 2:40 PM on June 20, 2019 [56 favorites]


Agreed, Thorzdad, this ruling is transparently bullshit on those grounds.
posted by tobascodagama at 2:50 PM on June 20, 2019 [5 favorites]


Wow. I guess we needed another legal nightmare and here it is.
posted by Bella Donna at 2:51 PM on June 20, 2019 [10 favorites]


So, essentially, all a state actor need do in order to sidestep the Constitution (because, of course, this ruling is gonna be extrapolated beyond 1A, and applied to every other amendment) is to farm-out the work/program/service to a private company that is ideologically in-step with said government?

That's been the goal for a long time - from prison privatization to child adoptions (cw - catholic bullshit).

Progressives have been doing good work in getting American government agencies to apply constitutional standards to marginalized groups, so Conservatives have been moving the goalposts by trying to redefine where and how those protections will apply.

See also the fake problem of "Free Speech on Campus"
posted by Pogo_Fuzzybutt at 2:55 PM on June 20, 2019 [16 favorites]


For those who don't know about Public Access Television:
Cable Communications Policy Act of 1984

Section 611 of this act of Congress established Cable channels for public, educational, or government use, also known as PEG. My station runs 5 channels, 4 of them public, and one government. The public channels are open to any one who wishes to create a television show and have it air on the public access cable channels which we control. The government channel is where the local city and county governments air their public meetings. It's kind of like CSPAN, but for local stuff, and no commentary.
posted by daq at 3:06 PM on June 20, 2019 [4 favorites]


This ruling does not apply to private actors performing traditional government functions, so this shouldn't serve as a back door for killing first amendment rights by privatization. Providing public access TV is not a traditional government function.

In my experience online, forums that can't or won't moderate speech are invariably taken over by nazis. I see no reason public access TV would be any different.
posted by Turbo-B at 3:18 PM on June 20, 2019 [4 favorites]


private actors performing traditional government functions

Therein lies the hinge, though. It's a weak sauce argument - that only functions of government that existed before, say, 1931 count as actual functions of government. In the Television Age, why couldn't a community TV station be a government service?
posted by Pogo_Fuzzybutt at 3:25 PM on June 20, 2019 [10 favorites]


This ruling does not apply to private actors performing traditional government functions, so this shouldn't serve as a back door for killing first amendment rights by privatization. Providing public access TV is not a traditional government function.

The majority did emphasize that point, but it's guaranteed that there will be groups bringing a wave of suits to test and push the limits of "private actors performing traditional government functions", and I don't have much faith that this firm line will hold up as all that firm over time.

Especially if, say, Trump wins again and gets another Justice on the Court (both Ginsburg and Breyer are in their 80s) who is friendly to such broad arguments.
posted by Sangermaine at 3:32 PM on June 20, 2019 [6 favorites]


why couldn't a community TV station be a government service

True - there are many public broadcasting media precedents worldwide.

But the real precedent here is that government can wiggle out of it's own rules by outsourcing the implementation to private industry. But, then again... That's nothing new... Military contractors, prisons, etc.
posted by jkaczor at 3:42 PM on June 20, 2019


Oh look a FPP on cable acceAAAAAUGH THAT'S MY CITY THAT'S WHERE I PRODUCED MY SHOW OH GOD IT'S IN FRONT OF KAVANAUGH

I am trying to wrap my head about what this is going to mean, practically, for MNN in particular. When I signed up to produce at MNN (in 2014, I think? After this first came up?), I learned that because of the mandate of public access to promote free speech, literally anything goes. MNN is notorious for airing the Robin Byrd Show, a softcore show which comes on after kids have largely been put to bed. Producers are told that content of that sort needs to air after prime time, but with a few hard guidelines (actual violence, I think? Actual penetration? I forget) we're within our rights to produce and air that content at MNN.

This means that for MNN to take that action against the plaintiff (during the Obama administration, even) the violent suggestions he made are likely to have been pretty dire. We weren't specifically told about this pending case in training... whether because of legal concern for the content of the trial or because they didn't expect it to be an issue for anyone else, I don't know.

Basically, like most cable access, MNN is a lush jungle of weirdos. (We went through orientation next to an aging porn star bent on starting her own show, who I believe actually flashed her boobs when they were taking her producer ID photo.) I quake to think what might happen to it now.
posted by gusandrews at 3:54 PM on June 20, 2019 [7 favorites]


What I can't wait for is for someone do something similar for 2nd Amendment so we can get a ruling that completely ignores all of this so long as it's guns.
posted by Copronymus at 4:02 PM on June 20, 2019


once long ago in the distant 90s to which we can never return more's the pity i saw a cable access show that consisted solely of a guy in an ant suit banging on a big bucket with a stick. also sometimes the ant guy kicked the bucket, really hard. then he'd go back to banging on it with the stick. it is important to note that the ant was not really drumming or anything. none of the things the ant guy was doing with the bucket were in any way musical. it was just a lot of furious banging and furious kicking. greenscreened in behind the ant were random-seeming videos, iirc more or less like the videos projected during karaoke.

at the end of the show a card was displayed that gave the title: ONE PISSED-OFF ANT.

i have unfortunately not been able to find any footage from ONE PISSED-OFF ANT anywhere on the internet. it is possible that no such footage still exists in any form, and so this ant's rage may now be entirely lost to history.
posted by Reclusive Novelist Thomas Pynchon at 4:11 PM on June 20, 2019 [34 favorites]


In my experience online, forums that can't or won't moderate speech are invariably taken over by nazis. I see no reason public access TV would be any different.

See, for example, Alex Jones.
posted by C'est la D.C. at 5:00 PM on June 20, 2019 [1 favorite]


I didn't see the actual decision linked elsewhere so here it is.
posted by any portmanteau in a storm at 6:08 PM on June 20, 2019 [4 favorites]


Hmmm. I read the decision. It does seem consistent with the “traditionally exclusively reserved to the State” bit that comes from 1974 (Jackson v. Metropolitan Edison Co.) I don't know if I agree with that, but it is a decision older than I am.

Here's the wrinkle I see: The government does have to follow the 1st Amendment. If the government knowingly (as of this case being decided) employs a contractor who is not bound by the 1st Amendment, isn't the government in violation of the 1st Amendment? Isn't the government preemptively blocking free speech by contracting their function out?

Bigger picture, there's a lot of stuff like this that doesn't make sense to me. While I am super glad that people aren't allowed to bring guns onto the federal property where I work, how is the federal government able to restrict people carrying guns onto federal property without violating the 2nd Amendment? If the government hires a private security firm, can they now quarter soldiers in my house without my consent? Is a punishment no longer cruel and unusual if it is performed by a contractor?!?

Okay, freaked myself out and worked myself into a tizzy.
posted by BeeDo at 7:17 PM on June 20, 2019 [2 favorites]


Oh snap, the dissension raises my first point.
posted by BeeDo at 7:32 PM on June 20, 2019 [1 favorite]


"God apparently had his own show on Los Angeles public access TV in 1997..."

.........roll to the horses.....
posted by clavdivs at 9:06 PM on June 20, 2019 [1 favorite]


internet fraud detective squad, station number 9 , I'm interested.
posted by doctornemo at 8:37 AM on June 21, 2019


Shared this with the Vermont public access board I was on until recently.
posted by doctornemo at 8:38 AM on June 21, 2019


internet fraud detective squad, station number 9, yes, please, I would love to see your response as well.
posted by Bella Donna at 8:46 AM on June 21, 2019


Question - could someone bring a successful suit that the state violated their first ammendment rights by contracting with a discriminatory 3rd party?

Part of my work includes helping with EEO data, and any time we contract with a state government, the contract includes a section on being an equal employment opportunity business.

Couldn't states also include in the contract other things as well? Should they?
posted by rebent at 9:23 AM on June 21, 2019 [1 favorite]


(it has been brought to my attention that ONE PISSED-OFF ANT would sometimes pause from banging on a bucket to furiously ride an exercise bike, and also one of the main things projected behind the ant was footage from a highway traffic cam. please update your conception of ONE PISSED-OFF ANT, and of 1990s cable access shows in general.)
posted by Reclusive Novelist Thomas Pynchon at 10:59 AM on June 21, 2019 [5 favorites]


Justice Brett Kavanaugh

No
posted by riverlife at 3:53 PM on June 21, 2019 [2 favorites]


> Rather, to qualify as a
traditional, exclusive public function within the meaning of our state-action precedents, the government must have
traditionally and exclusively performed the function.

This is really about charter schools, isn't it?
posted by smelendez at 6:49 PM on June 21, 2019 [7 favorites]


I hadn't considered that, but fuck. I think you're right.
posted by tobascodagama at 7:05 PM on June 21, 2019


Wait, can you spell out the implication for charter schools? I'm not aware of charter school activities that hinge on a first amendment right. Would they no longer have to respect students' first amendment rights to protest, gather, etc?
posted by rebent at 11:40 AM on June 24, 2019


The establishment clause is more to the point. And once the charter school has declared that it's explicitly some such denomination or other of Christianity -- which is fine now, because running a school is not an exclusive public function --, they can choose not to enroll students on the basis of gender identity or sexual orientation under existing religious "freedom" precedents, just like a bakery can choose not to bake a cake for a gay wedding.
posted by tobascodagama at 11:52 AM on June 24, 2019


So you're saying - the decision was that 3rd parties contracted to provide state services are not state actions. ah. damn.
posted by rebent at 5:39 AM on June 25, 2019


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