WASHINGTON (CN) – Dealing a blow to an East Harlem poet’s free-speech claims, the Supreme Court ruled 5-4 Monday that operating a public access channel does not turn a private entity into a state actor.

Joined in the majority by fellow conservatives, Justice Brett Kavanaugh emphasized that governmental entities are not the only ones that can be counted on to provide a forum for speech.

“After all, private property owners and private lessees often open their property for speech,” Kavanaugh wrote. “Grocery stores put up community bulletin boards. Comedy clubs host open mic nights.”

DeeDee Halleck and Jesus Papoleto Melendez brought the underlying suit after their work on a film critical of a Manhattan public-access network got them banned from the studio.

Though the Second Circuit found that the filmmakers could bring free-speech claims against the Manhattan Neighborhood Network, the Supreme Court said this conclusion rested on the incorrect holding that the network qualified as a state actor.

Justice Sonia Sotomayor skewered the majority’s holding in a 20-page dissent.

“A comedy club can decide to open its doors as wide as it wants, but it cannot appoint itself as a government agent,” she wrote. “The difference is between providing a service of one’s own accord and being asked by the government to administer a constitutional responsibility (indeed, here, existing to do so) on the government’s behalf.” (Parentheses in original.)

Joined by Justices Ruth Bader Ginsburg, Stephen Breyer and Elena Kagan, Sotomayor suggested her own hypothetical.

“Imagine instead that a state college runs a comedy showcase each year, renting out a local theater and, pursuant to state regulations mandating open access to certain kinds of student activities, allowing students to sign up to perform on a first-come, first-served basis,” she wrote. “After a few years, the college decides that it is tired of running the show, so it hires a performing-arts nonprofit to do the job. The nonprofit prefers humor that makes fun of a certain political party, so it allows only student acts that share its views to participate. Does the majority believe that the nonprofit is indistinguishable, for purposes of state action, from a private comedy club opened by local entrepreneurs?

“I hope not. But two dangers lurk here regardless. On the one hand, if the city’s decision to outsource the channels to a private entity did render the First Amendment irrelevant, there would be substantial cause to worry about the potential abuses that could follow. Can a state university evade the First Amendment by hiring a nonprofit to apportion funding to student groups? Can a city do the same by appointing a corporation to run a municipal theater? What about its parks?”

Sotomayor said the majority’s holding ignores key facts about the network’s relationship with the city.

“This is not a case about bigger governments and smaller individuals; it is a case about principals and agents,” Sotomayor wrote. “New York City opened up a public forum on public access channels in which it has a property interest. It asked MNN to run that public forum, and MNN accepted the job. That makes MNN subject to the First Amendment, just as if the city had decided to run the public forum itself.”



Kavanaugh on the other hand noted that New York City has a long history of tapping private companies to operate its public access channels, and that the nonprofit status of network does not change the fact that it is a private company. He similarly rejected the filmmakers’ claim that they have a right to express themselves in a venue meant to be a public forum.

“When a private entity provides a forum for speech, [it] is not ordinarily constrained by the First Amendment because the private entity is not a state actor,” Kavanaugh wrote. “The private entity may thus exercise editorial control over the speech and speakers in the forum.”

Melendez, one of the founding poets of the Nuyorican poetry movement, decried the close ruling as an assault to the First Amendment.

“[Lady] Liberty is probably looking under that blindfold yelling, ‘What’s going on, man?” he said.

A spokeswoman for the Manhattan Neighborhood Network, under the umbrella of Manhattan Community Access Corp., applauded Monday’s ruling.

“Manhattan Neighborhood Network is a champion of free speech and our independence from government is exactly what allows us to be the most diverse cablecaster of local and independent viewpoints in the country,” the representative said in an email. “We’re pleased that the Supreme Court has reaffirmed our independence so that we can continue to provide a critically important platform without government interference.”

Cozen O’Connor attorney Michael de Leeuw represented the network before the court.

“I am thrilled that the Supreme Court held that MNN is independent and not part of the government,” de Leeuw said in an email. “This will allow MNN to continue to produce and air the broadest array of viewpoints in the country and continue to teach media skills to high school students and other residents of New York City.”

Halleck, a University of California professor and community activist, blamed the holding on the conservative makeup of the Supreme Court.

“It’s a sad day for free speech today,” Halleck said in a phone interview. “The one forum that has enabled people to speak out without corporate control is public access. … This case is being used to lessen the ability of people to speak out.”

Attorneys for Halleck and Melendez with Mayer Brown have not returned an email seeking comment.