Manhattan Community Access Corp. v. Halleck

NOTICE: This opinion is subject to
formal revision before publication in the preliminary print of the
United States Reports. Readers are requested to notify the Reporter
of Decisions, Supreme Court of the United States, Washington,
D. C. 20543, of any typographical or other formal errors, in
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															SUPREME COURT OF THE UNITED STATES

															_________________

															No. 17–1702

															_________________

															MANHATTAN COMMUNITY ACCESS CORPORATION,
et al., PETITIONERS v. DEEDEE HALLECK, et al.

															on writ of certiorari to the united states
court of appeals for the second circuit

															[June 17, 2019]

															Justice Kavanaugh delivered the opinion of the
Court.

															The Free Speech Clause of the First Amendment
constrains governmental actors and protects private actors. To draw
the line between governmental and private, this Court applies what
is known as the state-action doctrine. Under that doctrine, as
relevant here, a private entity may be considered a state actor
when it exercises a function “traditionally exclusively reserved to
the State.” Jackson v. Metropolitan Edison Co. , 419 U.S.
345 , 352 (1974).

															This state-action case concerns the public
access channels on Time Warner’s cable system in Manhattan. Public
access channels are available for private citizens to use. The
public access channels on Time Warner’s cable system in Manhattan
are operated by a private nonprofit corporation known as MNN. The
question here is whether MNN—even though it is a private
entity—nonetheless is a state actor when it operates the public
access channels. In other words, is operation of public access
channels on a cable system a traditional, exclusive public
function? If so, then the First Amendment would restrict MNN’s
exercise of editorial discretion over the speech and speakers on
the public access channels.

															Under the state-action doctrine as it has been
articulated and applied by our precedents, we conclude that
operation of public access channels on a cable system is not a
traditional, exclusive public function. Moreover, a private entity
such as MNN who opens its property for speech by others is not
transformed by that fact alone into a state actor. In operating the
public access channels, MNN is a private actor, not a state actor,
and MNN therefore is not subject to First Amendment constraints on
its editorial discretion. We reverse in relevant part the judgment
of the Second Circuit, and we remand the case for further
proceedings consistent with this opinion.

															I

															A

															Since the 1970s, public access channels have
been a regular feature on cable television systems throughout the
United States. In the 1970s, Federal Communications Commission
regulations required certain cable operators to set aside channels
on their cable systems for public access. In 1979, however, this
Court ruled that the FCC lacked statutory authority to impose that
mandate. See FCC v. Midwest Video Corp. , 440 U.S.
689 (1979). A few years later, Congress passed and President
Reagan signed the Cable Communications Policy Act of 1984. 98Stat.
2779. The Act authorized state and local governments to require
cable operators to set aside channels on their cable systems for
public access. 47 U. S. C. §531(b).

															The New York State Public Service Commission
regulates cable franchising in New York State and requires cable
operators in the State to set aside channels on their cable systems
for public access. 16 N. Y. Codes, Rules & Regs.
§§895.1(f), 895.4(b) (2018). State law requires that use of the
public access channels be free of charge and first-come,
first-served. §§895.4(c)(4) and (6). Under state law, the cable
operator operates the public access channels unless the local
government in the area chooses to itself operate the channels or
designates a private entity to operate the channels.
§895.4(c)(1).

															Time Warner (now known as Charter) operates a
cable system in Manhattan. Under state law, Time Warner must set
aside some channels on its cable system for public access. New York
City (the City) has designated a private nonprofit corporation
named Manhattan Neighborhood Network, commonly referred to as MNN,
to operate Time Warner’s public access channels in Manhattan. This
case involves a complaint against MNN regarding its management of
the public access channels.

															B

															Because this case comes to us on a motion to
dismiss, we accept the allegations in the complaint as true. See Ashcroft v. Iqbal , 556 U.S.
662 , 678 (2009).

															DeeDee Halleck and Jesus Papoleto Melendez
produced public access programming in Manhattan. They made a film
about MNN’s alleged neglect of the East Harlem community. Halleck
submitted the film to MNN for airing on MNN’s public access
channels, and MNN later televised the film. Afterwards, MNN fielded
multiple complaints about the film’s content. In response, MNN
temporarily suspended Halleck from using the public access
channels.

															Halleck and Melendez soon became embroiled in
another dispute with MNN staff. In the wake of that dispute, MNN
ultimately suspended Halleck and Melendez from all MNN services and
facilities.

															Halleck and Melendez then sued MNN, among other
parties, in Federal District Court. The two producers claimed that
MNN violated their First Amendment free-speech rights when MNN
restricted their access to the public access channels because of
the content of their film.

															MNN moved to dismiss the producers’ First
Amendment claim on the ground that MNN is not a state actor and
therefore is not subject to First Amendment restrictions on its
editorial discretion. The District Court agreed with MNN and
dismissed the producers’ First Amendment claim.

															The Second Circuit reversed in relevant part.
882 F.3d 300, 308 (2018). In the majority opinion authored by Judge
Newman and joined by Judge Lohier, the court stated that the public
access channels in Manhattan are a public forum for purposes of the
First Amendment. Reasoning that “public forums are usually operated
by governments,” the court concluded that MNN is a state actor
subject to First Amendment constraints. Id. , at 306–307.
Judge Lohier added a concurring opinion, explaining that MNN also
qualifies as a state actor for the independent reason that “New
York City delegated to MNN the traditionally public function of
administering and regulating speech in the public forum of
Manhattan’s public access channels.” Id., at 309.

															Judge Jacobs dissented in relevant part, opining
that MNN is not a state actor. He reasoned that a private entity’s
operation of an open forum for speakers does not render the host
entity a state actor. Judge Jacobs further stated that the
operation of public access channels is not a traditional, exclusive
public function.

															We granted certiorari to resolve disagreement
among the Courts of Appeals on the question whether private
operators of public access cable channels are state actors subject
to the First Amendment. 586 U. S. __ (2018). Compare 882 F.3d
300 (case below), with Wilcher v. Akron , 498 F.3d 516
(CA6 2007); and Alliance for Commu- nity Media v. FCC , 56 F.3d 105 (CADC 1995).

															II

															Ratified in 1791, the First Amendment provides
in relevant part that “Congress shall make no law . . .
abridging the freedom of speech.” Ratified in 1868, the Fourteenth
Amendment makes the First Amendment’s Free Speech Clause applicable
against the States: “No State shall make or enforce any law which
shall abridge the privileges or immunities of citizens of the
United States; nor shall any State deprive any person of life,
liberty, or property, without due process of law
. . . .” §1. The text and original meaning of those
Amendments, as well as this Court’s longstanding precedents,
establish that the Free Speech Clause prohibits only governmental abridgment of speech. The Free Speech Clause
does not prohibit private abridgment of speech. See, e.g., Denver Area Ed. Telecommunications Consortium, Inc. v. FCC , 518
U.S. 727 , 737 (1996) (plurality opinion); Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston,
Inc. , 515 U.S.
557 , 566 (1995); Hudgens v. NLRB , 424 U.S.
507 , 513 (1976); cf. Miami Herald Publishing Co. v. Tornillo , 418 U.S.
241 , 256 (1974).

															In accord with the text and structure of the
Constitution, this Court’s state-action doctrine distinguishes the
government from individuals and private entities. See Brentwood
Academy v. Tennessee Secondary School Athletic Assn. , 531 U.S.
288 , 295–296 (2001). By enforcing that constitutional boundary
between the governmental and the private, the state-action doctrine
protects a robust sphere of individual liberty.

															Here, the producers claim that MNN, a private
entity, restricted their access to MNN’s public access channels
because of the content of the producers’ film. The producers have
advanced a First Amendment claim against MNN. The threshold problem
with that First Amendment claim is a fundamental one: MNN is a
private entity.

															Relying on this Court’s state-action precedents,
the producers assert that MNN is nonetheless a state actor subject
to First Amendment constraints on its editorial discretion. Under
this Court’s cases, 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, see, e.g., Jackson , 419 U. S., at
352–354; (ii) when the government compels the private entity
to take a particular action, see, e.g., Blum v. Yaretsky , 457 U.S.
991 , 1004–1005 (1982); or (iii) when the government acts
jointly with the private entity, see, e.g., Lugar v. Edmondson Oil Co. , 457 U.S.
922 , 941–942 (1982).

															The producers’ primary argument here falls into
the first category: The producers contend that MNN exercises a
traditional, exclusive public function when it operates the public
access channels on Time Warner’s cable system in Manhattan. We
disagree.

															A

															Under the Court’s cases, a private entity may
qualify as a state actor when it exercises “powers traditionally
exclusively reserved to the State.” Jackson , 419 U. S.,
at 352. It is not enough that the federal, state, or local
government exercised the function in the past, or still does. And
it is not enough that the function serves the public good or the
public interest in some way. 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. See Rendell-Baker v. Kohn , 457 U.S.
830 , 842 (1982); Jackson , 419 U. S., at 352–353; Evans v. Newton , 382 U.S.
296 , 300 (1966).

															The Court has stressed that “very few” functions
fall into that category. Flagg Bros., Inc. v. Brooks , 436 U.S.
149 , 158 (1978). Under the Court’s cases, those functions
include, for example, running elections and operating a company
town. See Terry v. Adams , 345
U.S. 461 , 468–470 (1953) (elections); Marsh v. Alabama , 326 U.S.
501 , 505–509 (1946) (company town); Smith v. Allwright , 321 U.S.
649 , 662–666 (1944) (elections); Nixon v. Condon , 286 U.S.
73 , 84–89 (1932) (elections).[ 1 ] The Court has ruled that a variety of functions do not
fall into that category, including, for example: running sports
associations and leagues, administering insurance payments,
operating nursing homes, providing special education, representing
indigent criminal defendants, resolving private disputes, and
supplying electricity. See American Mfrs. Mut. Ins. Co. v. Sullivan , 526 U.S.
40 , 55–57 (1999) (insurance payments); National Collegiate
Athletic Assn. v. Tarkanian , 488
U.S. 179 , 197, n. 18 (1988) (college sports); San
Francisco Arts & Athletics, Inc. v. United States
Olympic Comm. , 483 U.S.
522 , 544–545 (1987) (amateur sports); Blum , 457
U. S., at 1011–1012 (nursing home); Rendell-Baker , 457
U. S., at 842 (special education); Polk County v. Dodson , 454 U.S.
312 , 318–319 (1981) (public defender); Flagg Bros. , 436
U. S., at 157–163 (private dispute resolution); Jackson , 419 U. S., at 352–354 (electric service).

															The relevant function in this case is operation
of public access channels on a cable system. That function has not
traditionally and exclusively been performed by government.

															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. See Denver Area , 518 U. S., at 761–762 (plurality opinion);
R. Oringel & S. Buske, The Access Manager’s Handbook: A Guide
for Managing Community Television 14–17 (1987).

															The history of public access channels in
Manhattan further illustrates the point. In 1971, public access
channels first started operating in Manhattan. See D. Brenner, M.
Price, & M. Meyerson, Cable Television and Other Nonbroadcast
Video §6:29, p. 6–47 (2018). Those early Manhattan public
access channels were operated in large part by private cable
operators, with some help from private nonprofit organizations. See
G. Gillespie, Public Access Cable Television in the United States
and Canada 37–38 (1975); Janes, History and Structure of Public
Access Television, 39 J. Film & Video, No. 3, pp. 15–17 (1987).
Those private cable operators continued to operate the public
access channels until the early 1990s, when MNN (also a private
entity) began to operate the public access channels.

															In short, operating public access channels on a
cable system is not a traditional, exclusive public function within
the meaning of this Court’s cases.

															B

															To avoid that conclusion, the producers widen
the lens and contend that the relevant function here is not simply
the operation of public access channels on a cable system, but
rather is more generally the operation of a public forum for
speech. And according to the producers, operation of a public forum
for speech is a traditional, exclusive public function.

															That analysis mistakenly ignores the threshold
state-action question. When the government provides a forum for
speech (known as a public forum), the government may be constrained
by the First Amendment, meaning that the government ordinarily may
not exclude speech or speakers from the forum on the basis of
viewpoint, or sometimes even on the basis of content. See, e.g.,
Southeastern Promotions, Ltd. v. Conrad , 420 U.S.
546 , 547, 555 (1975) (private theater leased to the city); Police Dept. of Chicago v. Mosley , 408 U.S.
92 , 93, 96 (1972) (sidewalks); Hague v. Committee for
Industrial Organization , 307 U.S.
496 , 515–516 (1939) (streets and parks).

															By contrast, when a private entity provides a
forum for speech, the private entity is not ordinarily constrained
by the First Amendment because the private entity is not a state
actor. The private entity may thus exercise editorial discretion
over the speech and speakers in the forum. This Court so ruled in
its 1976 decision in Hudgens v. NLRB . There, the
Court held that a shopping center owner is not a state actor
subject to First Amendment requirements such as the public forum
doctrine. 424 U. S., at 520–521; see also Lloyd Corp. v. Tanner , 407 U.S.
551 , 569–570 (1972); Central Hardware Co. v. NLRB , 407 U.S.
539 , 547 (1972); Alliance for Community Media , 56
F. 3d, at 121–123.

															The Hudgens decision reflects a
commonsense principle: Providing some kind of forum for speech is
not an activity that only governmental entities have traditionally
performed. Therefore, a private entity who provides a forum for
speech is not transformed by that fact alone into a state actor.
After all, private property owners and private lessees often open
their property for speech. Grocery stores put up community bulletin
boards. Comedy clubs host open mic nights. As Judge Jacobs
persuasively explained, it “is not at all a near-exclusive function
of the state to provide the forums for public expression, politics,
information, or entertainment.” 882 F. 3d, at 311 (opinion
concurring in part and dissenting in part).

															In short, merely hosting speech by others is not
a traditional, exclusive public function and does not alone
transform private entities into state actors subject to First
Amendment constraints.

															If the rule were otherwise, all private property
owners and private lessees who open their property for speech would
be subject to First Amendment constraints and would lose the
ability to exercise what they deem to be appropriate editorial
discretion within that open forum. Private property owners and
private lessees would face the unappetizing choice of allowing all
comers or closing the platform altogether. “The Constitution by no
means requires such an attenuated doctrine of dedication of private
property to public use.” Hudgens , 424 U. S., at 519
(internal quotation marks omitted). Benjamin Franklin did not have
to operate his newspaper as “a stagecoach, with seats for
everyone.” F. Mott, American Journalism 55 (3d ed. 1962). That
principle still holds true. As the Court said in Hudgens , to
hold that private property owners providing a forum for speech are
constrained by the First Amendment would be “to create a court-made
law wholly disregarding the constitutional basis on which private
ownership of property rests in this country.” 424 U. S., at
517 (internal quotation marks omitted). The Constitution does not
disable private property owners and private lessees from exercising
editorial discretion over speech and speakers on their
property.[ 2 ]

															The producers here are seeking in effect to
circumvent this Court’s case law, including Hudgens . But Hudgens is sound, and we therefore reaffirm our holding in
that case.[ 3 ]

															C

															Next, the producers retort that this case
differs from Hudgens because New York City has designated
MNN to operate the public access channels on Time Warner’s cable
system, and because New York State heavily regulates MNN with
respect to the public access channels. Under this Court’s cases,
however, those facts do not establish that MNN is a state
actor.

															New York City’s designation of MNN to operate
the public access channels is analogous to a government license, a
government contract, or a government-granted monopoly. But as the
Court has long held, the fact that the government licenses,
contracts with, or grants a monopoly to a private entity does not
convert the private entity into a state actor—unless the private
entity is performing a traditional, exclusive public function. See, e.g., San Francisco Arts & Athletics , 483
U. S., at 543–544 (exclusive-use rights and corporate
charters); Blum , 457 U. S., at 1011 (licenses); Rendell-Baker , 457 U. S., at 840–841 (contracts); Polk County , 454 U. S., at 319, n. 9, and 320–322
(law licenses); Jackson , 419 U. S., at 351–352
(electric monopolies); Columbia Broadcasting System, Inc. v. Democratic National Committee , 412 U.S.
94 , 120–121 (1973) (broadcast licenses); Moose Lodge No.
107 v. Irvis , 407 U.S.
163 , 176–177 (1972) (liquor licenses); cf. Trustees of
Dartmouth College v. Woodward , 4 Wheat. 518, 638–639
(1819) (corporate charters). The same principle applies if the
government funds or subsidizes a private entity. See Blum ,
457 U. S., at 1011; Rendell - Baker , 457
U. S., at 840.

															Numerous private entities in America obtain
government licenses, government contracts, or government-granted
monopolies. If those facts sufficed to transform a private entity
into a state actor, a large swath of private entities in America
would suddenly be turned into state actors and be subject to a
variety of constitutional constraints on their activities. As this
Court’s many state-action cases amply demonstrate, that is not the
law. Here, therefore, the City’s designation of MNN to operate the
public access channels on Time Warner’s cable system does not make
MNN a state actor.

															So, too, New York State’s extensive regulation
of MNN’s operation of the public access channels does not make MNN
a state actor. Under the State’s regulations, air time on the
public access channels must be free, and programming must be aired
on a first-come, first-served basis. Those regulations restrict
MNN’s editorial discretion and in effect require MNN to operate
almost like a common carrier. But under this Court’s cases, those
restrictions do not render MNN a state actor.

															In Jackson v. Metropolitan Edison
Co. , the leading case on point, the Court stated that the “fact
that a business is subject to state regulation does not by itself
convert its action into that of the State.” 419 U. S., at 350.
In that case, the Court held that “a heavily regulated, privately
owned utility, enjoying at least a partial monopoly in the
providing of electrical service within its territory,” was not a
state actor. Id. , at 358. The Court explained that the “mere
existence” of a “regulatory scheme”—even if “extensive and
detailed”—did not render the utility a state actor. Id., at
350, and n. 7. Nor did it matter whether the State had
authorized the utility to provide electric service to the
community, or whether the utility was the only entity providing
electric service to much of that community.

															This case closely parallels Jackson . Like
the electric utility in Jackson , MNN is “a heavily
regulated, privately owned” entity. Id., at 358. As in Jackson , the regulations do not transform the regulated
private entity into a state actor.

															Put simply, being regulated by the State does
not make one a state actor. See Sullivan , 526 U. S., at
52; Blum , 457 U. S., at 1004; Rendell-Baker , 457
U. S., at 841–842; Jackson , 419 U. S., at 350; Moose Lodge , 407 U. S., at 176–177. As the Court’s
cases have explained, the “being heavily regulated makes you a
state actor” theory of state action is entirely circular and would
significantly endanger individual liberty and private enterprise.
The theory would be especially problematic in the speech context,
because it could eviscerate certain private entities’ rights to
exercise editorial control over speech and speakers on their
properties or platforms. Not surprisingly, as Justice Thomas has
pointed out, this Court has “never even hinted that regulatory
control, and particularly direct regulatory control over a private
entity’s First Amendment speech rights,” could justify subjecting
the regulated private entity to the constraints of the First
Amendment. Denver Area , 518 U. S., at 829 (opinion
concurring in judgment in part and dissenting in part).

															In sum, we conclude that MNN is not subject to
First Amendment constraints on how it exercises its editorial
discretion with respect to the public access channels. To be sure,
MNN is subject to state-law constraints on its editorial discretion
(assuming those state laws do not violate a federal statute or the
Constitution). If MNN violates those state laws, or violates any
applicable contracts, MNN could perhaps face state-law sanctions or
liability of some kind. We of course take no position on any
potential state-law questions. We simply conclude that 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.

															III

															Perhaps recognizing the problem with their
argument that MNN is a state actor under ordinary state-action
principles applicable to private entities and private property, the
producers alternatively contend that the public access channels are
actually the property of New York City, not the property of Time
Warner or MNN. On this theory, the producers say (and the dissent
agrees) that MNN is in essence simply managing government property
on behalf of New York City.

															The short answer to that argument is that the
public access channels are not the property of New York City.
Nothing in the record here suggests that a government (federal,
state, or city) owns or leases either the cable system or the
public access channels at issue here. Both Time Warner and MNN are
private entities. Time Warner is the cable operator, and it owns
its cable network, which contains the public access channels. MNN
operates those public access channels with its own facilities and
equipment. The City does not own or lease the public access
channels, and the City does not possess a formal easement or other
property interest in those channels. The franchise agreements
between the City and Time Warner do not say that the City has any
property interest in the public access channels. On the contrary,
the franchise agreements expressly place the public access channels
“under the jurisdiction” of MNN. App. 22. Moreover, the producers
did not allege in their complaint that the City has a property
interest in the channels. And the producers have not cited any
basis in state law for such a conclusion. Put simply, the City does
not have “any formal easement or other property interest in those
channels.” Denver Area , 518 U. S., at 828 (opinion of
Thomas, J.).

															It does not matter that a provision in the
franchise agreements between the City and Time Warner allowed the
City to designate a private entity to operate the public access
channels on Time Warner’s cable system. Time Warner still owns the
cable system. And MNN still operates the public access channels. To
reiterate, nothing in the franchise agreements suggests that the
City possesses any property interest in Time Warner’s cable system,
or in the public access channels on that system.

															It is true that the City has allowed the cable
operator, Time Warner, to lay cable along public rights-of-way in
the City. But Time Warner’s access to public rights-of-way does not
alter the state-action analysis. For Time Warner, as for other
cable operators, access to public rights-of-way is essential to lay
cable and construct a physical cable infrastructure. See Turner
Broadcasting System, Inc. v. FCC , 512
U.S. 622 , 628 (1994). But the same is true for utility
providers, such as the electric utility in Jackson . Put
simply, a private entity’s permission from government to use public
rights-of-way does not render that private entity a state
actor.

															Having said all that, our point here should not
be read too broadly. Under the laws in certain States, including
New York, a local government may decide to itself operate the
public access channels on a local cable system (as many local
governments in New York State and around the country already do),
or could take appropriate steps to obtain a property interest in
the public access channels. Depending on the circumstances, the
First Amendment might then constrain the local government’s
operation of the public access channels. We decide only the case
before us in light of the record before us.

															*  *  *

															It is sometimes said that the bigger the
government, the smaller the individual. Consistent with the text of
the Constitution, the state-action doctrine enforces a critical
boundary between the government and the individual, and thereby
protects a robust sphere of individual liberty. Expanding the
state-action doctrine beyond its traditional boundaries would
expand governmental control while restricting individual liberty
and private enterprise. We decline to do so in this case.

															MNN is a private entity that operates public
access channels on a cable system. Operating public access channels
on a cable system is not a traditional, exclusive public function.
A private entity such as MNN who opens its property for speech by
others is not transformed by that fact alone into a state actor.
Under the text of the Constitution and our precedents, MNN is not a
state actor subject to the First Amendment. We reverse in relevant
part the judgment of the Second Circuit, and we remand the case for
further proceedings consistent with this opinion.

															It is so ordered. Notes 1 Relatedly, this Court has
recognized that a private entity may, under certain circumstances,
be deemed a state actor when the government has outsourced one of
its constitutional obligations to a private entity. In West v. Atkins , for example, the State was constitutionally
obligated to provide medical care to prison inmates. 487 U.S.
42 , 56 (1988). That scenario is not present here because the
government has no such obligation to operate public access
channels. 2 A distinct question not
raised here is the degree to which the First Amendment protects private entities such as Time Warner or MNN from
government legislation or regulation requiring those private
entities to open their property for speech by others. Cf. Turner
Broadcasting System, Inc. v. FCC , 512 U.S.
622 , 636–637 (1994). 3 In Cornelius v. NAACP Legal Defense & Educational Fund, Inc. , this Court
said in passing dicta that “a speaker must seek access to public
property or to private property dedicated to public use to evoke
First Amendment concerns.” 473 U.S.
788 , 801 (1985). But Cornelius dealt with
government-owned property. As Justice Thomas explained in Denver
Area Educational Telecommunications Consortium, Inc. v. FCC , the Court’s admittedly imprecise and overbroad phrase
in Cornelius is not consistent with this Court’s case law
and should not be read to suggest that private property owners or
private lessees are subject to First Amendment constraints whenever
they dedicate their private property to public use or otherwise
open their property for speech. 518 U.S.
727 , 827–828 (1996) (opinion concurring in judgment in part and
dissenting in part). SUPREME COURT OF THE UNITED STATES

															_________________

															No. 17–1702

															_________________

															MANHATTAN COMMUNITY ACCESS CORPORATION,
et al., PETITIONERS v. DEEDEE HALLECK, et al.

															on writ of certiorari to the united states
court of appeals for the second circuit

															[June 17, 2019]

															Justice Sotomayor, with whom Justice Ginsburg,
Justice Breyer, and Justice Kagan join, dissenting.

															The Court tells a very reasonable story about a
case that is not before us. I write to address the one that is.

															This is a case about an organization appointed
by the government to administer a constitutional public forum. (It
is not, as the Court suggests, about a private property owner that
simply opened up its property to others.) New York City (the City)
secured a property interest in public-access television channels
when it granted a cable franchise to a cable company. State
regulations require those public-access channels to be made open to
the public on terms that render them a public forum. The City
contracted out the administration of that forum to a private
organization, petitioner Manhattan Community Access Corporation
(MNN). By accepting that agency relationship, MNN stepped into the
City’s shoes and thus qualifies as a state actor, subject to the
First Amendment like any other.

															I

															A

															A cable-television franchise is, essentially,
a license to create a system for distributing cable TV in a certain
area. It is a valuable right, usually conferred on a private
company by a local government. See 47 U. S. C.
§§522(9)–(10), 541(a)(2), (b)(1); Turner Broadcasting
System , Inc. v. FCC , 512
U.S. 622 , 628 (1994). A private company cannot enter a local
cable market without one. §541(b)(1).

															Cable companies transmit content through wires
that stretch “between a transmission facility and the television
sets of individual subscribers.” Id. , at 627–628. Creating
this network of wires is a disruptive undertaking that “entails the
use of public rights-of-way and easements.” Id. , at 628.

															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).

															B

															Years ago, New York City (no longer a party to
this suit) and Time Warner Entertainment Company (never a party to
this suit) entered into a cable-franchise agreement. App. 22. Time
Warner received a cable franchise; the City received public-access
channels. The agreement also provided that the public-access
channels would be operated by an independent, nonprofit corporation
chosen by the Manhattan borough president. But the City, as the
practice of other New York municipalities confirms, could have
instead chosen to run the channels itself. See §895.4(c)(1); Brief
for Respondents 35 (citing examples).

															MNN is the independent nonprofit that the
borough president appointed to run the channels; indeed, MNN
appears to have been incorporated in 1991 for that precise purpose,
with seven initial board members selected by the borough president
(though only two thus selected today). See App. 23; Brief for
Respondents 7, n. 1. The City arranged for MNN to receive
startup capital from Time Warner and to be funded through franchise
fees from Time Warner and other Manhattan cable franchisees. App.
23; Brief for New York County Lawyers Association (NYCLA) as Amicus Curiae 27; see also App. to Brief for Respondents
19a. As the borough president announced upon MNN’s formation in
1991, MNN’s “central charge is to administer and manage all the
public access channels of the cable television systems in
Manhattan.” App. to Brief for NYCLA as Amicus Curiae 1.

															As relevant here, respondents DeeDee Halleck and
Jesus Papoleto Melendez sued MNN in U. S. District Court for
the Southern District of New York under 42 U. S. C.
§1983. They alleged that the public-access channels, “[r]equired by
state regulation and [the] local franchise agreements,” are “a
designated public forum of unlimited character”; that the City had
“delegated control of that public forum to MNN”; and that MNN had,
in turn, engaged in viewpoint discrimination in violation of
respondents’ First Amendment rights. App. 39.

															The District Court dismissed respondents’ First
Amendment claim against MNN. The U. S. Court of Appeals for
the Second Circuit reversed that dismissal, concluding that the
public-access channels “are public forums and that [MNN’s]
employees were sufficiently alleged to be state actors taking
action barred by the First Amendment.” 882 F.3d 300, 301–302
(2018). Because the case before us arises from a motion to dismiss,
respondents’ factual allegations must be accepted as true. Hernandez v. Mesa , 582 U. S. ___, ___ (2017)
( per curiam ) (slip op., at 1).

															II

															I would affirm the judgment below. The
channels are clearly a public forum: The City has a property
interest in them, and New York regulations require that access to
those channels be kept open to all. And because the City (1) had a
duty to provide that public forum once it granted a cable franchise
and (2) had a duty to abide by the First Amendment once it provided
that forum, those obligations did not evaporate when the City
delegated the administration of that forum to a private entity.
Just as the City would have been subject to the First Amendment had
it chosen to run the forum itself, MNN assumed the same
responsibility when it accepted the delegation.

															A

															When a person alleges a violation of the right
to free speech, courts generally must consider not only what was
said but also in what context it was said.

															On the one hand, there are “public forums,” or
settings that the government has opened in some way for speech by
the public (or some subset of it). The Court’s precedents subdivide
this broader category into various subcategories, with the level of
leeway for government regulation of speech varying accordingly. See Minnesota Voters Alliance v. Mansky , 585 U. S.
___, ___ (2018) (slip op., at 7). Compare Frisby v. Schultz , 487 U.S.
474 , 480 (1988) (streets and public parks, traditional public
forums), with Southeastern Promotions, Ltd. v. Conrad , 420 U.S.
546 , 555 (1975) (city-leased theater, designated public forum),
with Christian Legal Soc. Chapter of Univ. of Cal., Hastings
College of Law v. Martinez , 561
U.S. 661 , 669, 679, and n. 12 (2010) (program for registered
student organizations, limited public forum). But while many cases
turn on which type of “forum” is implicated, the important point
here is that viewpoint discrimination is impermissible in them all.
See Good News Club v. Milford Central School , 533 U.S.
98 , 106 (2001).

															On the other hand, there are contexts that do
not fall under the “forum” rubric. For one, there are contexts in
which the government is simply engaging in its own speech and thus
has freedom to select the views it prefers. See, e.g. , Walker v. Texas Div. , Sons of Confederate
Veterans , Inc. , 576 U. S. ___, ___–___ (2015) (slip
op., at 6–7) (specialty license plates); Pleasant Grove City v. Summum , 555 U.S.
460 , 467–469, 481 (2009) (privately donated permanent monuments
in a public park).[ 1 ] In
addition, there are purely private spaces, where the First
Amendment is (as relevant here) inapplicable. The First Amendment
leaves a private store owner (or homeowner), for example, free to
remove a customer (or dinner guest) for expressing unwanted views.
See, e.g. , Lloyd Corp. v. Tanner , 407 U.S.
551 , 569–570 (1972). In these settings, there is no First
Amendment right against viewpoint discrimination.

															Here, respondents alleged viewpoint
discrimination. App. 39. So a key question in this case concerns
what the Manhattan public-access channels are: a public forum of
some kind, in which a claim alleging viewpoint discrimination would
be cognizable, or something else, such as government speech or
purely private property, where picking favored viewpoints is
appropriately commonplace.[ 2 ]
Neither MNN nor the majority suggests that this is an instance of
government speech. This case thus turns first and foremost on
whether the public-access channels are or are not purely private
property.[ 3 ]

															1

															This Court has not defined precisely what kind
of governmental property interest (if any) is necessary for a
public forum to exist. See Cornelius v. NAACP Legal
Defense & Ed. Fund, Inc. , 473 U.S.
788 , 801 (1985) (“a speaker must seek access to public property
or to private property dedicated to public use”). But see ante , at 11, n. 3 (appearing to reject the phrase
“private property dedicated to public use” as “passing dicta”). I
assume for the sake of argument in this case that public-forum
analysis is inappropriate where the government lacks a “significant
property interest consistent with the communicative purpose of the
forum.” Denver Area Ed. Telecommunications Consortium, Inc. v. FCC , 518 U.S.
727 , 829 (1996) (Thomas, J., concurring in judgment in part and
dissenting in part).

															Such an interest is present here. As described
above, New York State required the City to obtain public-access
channels from Time Warner in exchange for awarding a cable
franchise. See supra , at 2. The exclusive right to use these
channels (and, as necessary, Time Warner’s infrastructure)
qualifies as a property interest, akin at the very least to an
easement.

															The last time this Court considered a case
centering on public-access channels, five Justices described an
interest like the one here as similar to an easement. Although
Justice Breyer did not conclude that a public-access channel was
indeed a public forum, he likened the cable company’s agreement to
reserve such channels “to the reservation of a public easement, or
a dedication of land for streets and parks, as part of a
municipality’s approval of a subdivision of land.” Denver
Area , 518 U. S., at 760–761 (joined by Stevens and Souter,
JJ.). And Justice Kennedy observed not only that an easement would
be an appropriate analogy, id., at 793–794 (opinion
concurring in part, concurring in judgment in part, and dissenting
in part, joined by Ginsburg, J.), but also that “[p]ublic access
channels meet the definition of a public forum,” id., at
791, “even though they operate over property to which the cable
operator holds title,” id., at 792; see also id., at
792–793 (noting that the entire cable system’s existence stems from
the municipality’s decision to grant the franchise). What those
five Justices suggested in 1996 remains true today.

															“A common idiom describes property as a
‘bundle of sticks’—a collection of individual rights
which, in certain combinations, constitute property.” United
States v. Craft , 535 U.S.
274 , 278 (2002). Rights to exclude and to use are two of the
most crucial sticks in the bundle. See id., at 283. “State
law determines . . . which sticks are in a person’s
bundle,” id., at 278, and therefore defining property itself
is a state-law exercise.[ 4 ] As
for whether there is a sufficient property interest to trigger
First Amendment forum analysis, related precedents show that there
is.

															As noted above, there is no disputing that Time
Warner owns the wires themselves. See Turner , 512
U. S., at 628. If the wires were a road, it would be easy to
define the public’s right to walk on it as an easement. See, e.g. , In re India Street , 29 N.Y.2d 97 , 100–103, 272 N. E 2d 518, 518–520 (1971).
Similarly, if the wires were a theater, there would be no question
that a government’s long-term lease to use it would be sufficient
for public-forum pur- poses. Southeastern Promotions , 420
U. S., at 547, 555. But some may find this case more
complicated because the wires are not a road or a theater that one
can physically occupy; they are a conduit for transmitting signals
that appear as television channels. In other words, the question is
how to understand the right to place content on those channels
using those wires.

															The right to convey expressive content using
someone else’s physical infrastructure is not new. To give another
low-tech example, imagine that one company owns a billboard and
another rents space on that billboard. The renter can have a
property interest in placing content on the billboard for the lease
term even though it does not own the billboard itself. See, e.g., Naegele Outdoor Advertising Co. of Minneapolis v. Lakeville , 532 N.W.2d 249 , 253 (Minn. 1995); see also Matter of XAR
Corp. v. Di Donato , 76 App. Div. 2d 972, 973, 429
N.Y.S.2d 59, 60 (1980) (“Although invariably labeled ‘leases,’
agreements to erect advertising signs or to place signs on walls or
fences are easements in gross”).

															The same principle should operate in this higher
tech realm. Just as if the channels were a billboard, the City
obtained rights for exclusive use of the channels by the public for
the foreseeable future; no one is free to take the channels away,
short of a contract renegotiation. Cf. Craft , 535
U. S., at 283. The City also obtained the right to administer,
or delegate the administration of, the channels. The channels are
more intangible than a billboard, but no one believes that a right
must be tangible to qualify as a property interest. See, e.g. , Armstrong v. United States , 364 U.S.
40 , 48–49 (1960) (treating destruction of valid liens as a
taking); Adams Express Co. v. Ohio State Auditor , 166 U.S.
185 , 219 (1897) (treating “privileges, corporate franchises,
contracts or obligations” as taxable property). And it is hardly
unprecedented for a government to receive a right to transmit
something over a private entity’s infrastructure in exchange for
conferring something of value on that private entity; examples go
back at least as far as the 1800s.[ 5 ]

															I do not suggest that the government always
obtains a property interest in public-access channels created by
franchise agreements. But the arrangement here is consistent with
what the Court would treat as a governmental property interest in
other contexts. New York City gave Time Warner the right to lay
wires and sell cable TV. In exchange, the City received an
exclusive right to send its own signal over Time Warner’s
infrastructure—no different than receiving a right to place ads on
another’s billboards. Those rights amount to a governmental
property interest in the channels, and that property interest is
clearly “consistent with the communicative purpose of the forum,” Denver Area , 518 U. S., at 829 (opinion of Thomas, J.).
Indeed, it is the right to transmit the very content to which New
York law grants the public open and equal access.

															2

															With the question of a governmental property
interest resolved, it should become clear that the public-access
channels are a public forum.[ 6 ]
Outside of classic examples like sidewalks and parks, a public
forum exists only where the government has deliberately opened up
the setting for speech by at least a subset of the public. Cornelius , 473 U. S., at 802. “Accordingly, the Court
has looked to the policy and practice of the government,” as well
as the nature of the property itself, “to ascertain whether it
intended to designate a place not traditionally open to assembly
and debate as a public forum.” See ibid. For example, a
state college might make its facilities open to student groups, or
a municipality might open up an auditorium for certain public
meetings. See id. , at 802–803.

															The requisite governmental intent is manifest
here. As noted above, New York State regulations require that the
channels be made available to the public “on a first-come,
first-served, nondiscriminatory basis.” 16 N. Y. Codes, Rules
& Regs. §895.4(c)(4); see also §§895.4(c)(8)–(9). The State, in
other words, mandates that the doors be wide open for public
expression. MNN’s contract with Time Warner follows suit. App. 23.
And that is essentially how MNN itself describes things. See Tr. of
Oral Arg. 9 (“We do not prescreen videos. We—they come into the
door. We put them on the air”).[ 7 ] These regulations “evidenc[e] a clear intent to create
a public forum.” Cornelius , 473 U. S., at 802.

															B

															If New York’s public-access channels are a
public forum, it follows that New York cannot evade the First
Amendment by contracting out administration of that forum to a
private agent. When MNN took on the responsibility of administering
the forum, it stood in the City’s shoes and became a state actor
for purposes of 42 U. S. C. §1983.

															This conclusion follows from the Court’s
decision in West v. Atkins , 487 U.S.
42 (1988). The Court in West unanimously held that a
doctor hired to provide medical care to state prisoners was a state
actor for purposes of §1983. Id. , at 54; see also id., at 58 (Scalia, J., concurring in part and concurring in
judgment). Each State must provide medical care to prisoners, the
Court explained, id., at 54, and when a State hires a
private doctor to do that job, the doctor becomes a state actor,
“ ‘clothed with the authority of state law,’ ” id. , at 55. If a doctor hired by the State abuses his role,
the harm is “caused, in the sense relevant for state-action
inquiry,” by the State’s having incarcerated the prisoner and put
his medical care in that doctor’s hands. Ibid. The fact that the doctor was a private
contractor, the Court emphasized, made no difference. Ibid. It was “the physician’s function within the state system,” not his
private-contractor status, that determined whether his conduct
could “fairly be attributed to the State.” Id. , at 55–56.
Once the State imprisoned the plaintiff, it owed him duties under
the Eighth Amendment; once the State delegated those duties to a
private doctor, the doctor became a state actor. See ibid. ;
see also id. , at 56–57. If the rule were any different, a
State would “ ‘be free to contract out all services which it
is constitutionally obligated to provide and leave its citizens
with no means for vindication of those rights, whose protection has
been delegated to ‘private’ actors, when they have been
denied.’ ” Id., at 56, n. 14. West resolves this case. Although the
settings are different, the legal features are the same: When 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 for purposes of
§1983.[ 8 ]

															Not all acts of governmental delegation
necessarily trigger constitutional obligations, but this one did.
New York State regulations required the City to secure
public-access channels if it awarded a cable franchise. 16
N. Y. Codes, Rules & Regs. §895.4(b)(1). The City did
award a cable franchise. The State’s regulations then required the
City to make the channels it obtained available on a “first-come,
first-served, nondiscriminatory basis.”[ 9 ] §895.4(c)(4). That made the channels a public forum.
See supra, at 9–10. Opening a public forum, in turn,
entailed First Amendment obligations.

															The City could have done the job itself, but it
instead delegated that job to a private entity, MNN. MNN could have
said no, but it said yes. (Indeed, it appears to exist entirely to
do this job.) By accepting the job, MNN accepted the City’s
responsibilities. See West , 487 U. S., at 55. The First
Amendment does not fall silent simply because a government hands
off the administration of its constitutional duties to a private
actor.

															III

															The majority acknowledges that the First
Amendment could apply when a local government either (1) has a
property interest in public-access channels or (2) is more directly
involved in administration of those channels than the City is here. Ante , at 15. And it emphasizes that it “decide[s] only the
case before us in light of the record before us.” Ibid .
These case-specific qualifiers sharply limit the immediate effect
of the majority’s decision, but that decision is still meaningfully
wrong in two ways. First, the majority erroneously decides the
property question against the plaintiffs as a matter of law.
Second, and more fundamentally, the majority mistakes a case about
the government choosing to hand off responsibility to an agent for
a case about a private entity that simply enters a marketplace.

															A

															The majority’s explanation for why there is no
governmental property interest here, ante , at 14–15, does
not hold up. The majority focuses on the fact that “[b]oth Time
Warner and MNN are private entities”; that Time Warner “owns its
cable network, which contains the public access channels”; and that
“MNN operates those public access channels with its own facilities
and equipment.” Ante , at 14; see also ante , at 15.
Those considerations cannot resolve this case. The issue is not who
owns the cable network or that MNN uses its own property to operate
the channels. The key question, rather, is whether the channels
themselves are purely private property. An advertiser may not own a
billboard, but that does not mean that its long-term lease is not a
property interest. See supra , at 8.

															The majority also says that “[n]othing in the
record here suggests that a government . . . owns or
leases either the cable system or the public access channels at
issue here.” Ante , at 14. But the cable system itself is
irrelevant, and, as explained above, the details of the exchange
that yielded Time Warner’s cable franchise suggest a governmental
property interest in the channels. See supra, at 6–9.

															The majority observes that “the franchise
agreements expressly place the public access channels ‘under the
jurisdiction’ of MNN,” ante , at 14, but that language sim-
ply describes the City’s appointment of MNN to administer the
channels. The majority also chides respondents for failing to
“alleg[e] in their complaint that the City has a property interest
in the channels,” ibid. , but, fairly read, respondents’
complaint includes such an assertion.[ 10 ] In any event, any ambiguity or imprecision does not
justify resolving the case against respondents at the
motion-to-dismiss stage. To the extent the majority has doubts
about respondents’ complaint—or factual or state-law issues that
may bear upon the existence of a property interest—the more prudent
course would be to vacate and remand for the lower courts to
consider those matters more fully. In any event, as I have
explained, the best course of all would be to affirm.

															B

															More fundamentally, the majority’s opinion
erroneously fixates on a type of case that is not before us: one in
which a private entity simply enters the marketplace and is then
subject to government regulation. The majority swings hard at the
wrong pitch.

															The majority focuses on Jackson v. Metropolitan Edison Co. , 419 U.S.
345 (1974), which is a paradigmatic example of a line of cases
that reject §1983 liability for private actors that simply operate
against a regulatory backdrop. Jackson emphasized that the
“fact that a business is subject to state regulation does not by
itself convert its action into that of the State.” Id. , at
350; accord, ante , at 12. Thus, the fact that a utility
company entered the marketplace did not make it a state actor, even
if it was highly regulated. See Jackson , 419 U. S., at
358; accord, ante , at 12–13. The same rule holds, of course,
for private comedy clubs and grocery stores. See ante , at
9.[ 11 ]

															The Jackson line of cases is inapposite
here. MNN is not a private entity that simply ventured into the
marketplace. It occupies its role because it was asked to do so by
the City, which secured the public-access channels in exchange for
giving up public rights of way, opened those channels up (as
required by the State) as a public forum, and then deputized MNN to
administer them. That distinguishes MNN from a private entity that
simply sets up shop against a regulatory backdrop. To say that MNN
is nothing more than a private organization regulated by the
government is like saying that a waiter at a restaurant is an
independent food seller who just happens to be highly regulated by
the restaurant’s owners.

															The majority also relies on the Court’s
statements that its “public function” test requires that a function
have been “traditionally and exclusively performed” by the
government. Ante , at 6 (emphasis deleted); see Jackson , 419 U. S., at 352. Properly understood, that
rule cabins liability in cases, such as Jackson , in which a
private actor ventures of its own accord into territory shared (or
regulated) by the government ( e.g. , by opening a power com-
pany or a shopping center). The Court made clear in West that the rule did not reach further, explaining that “the fact that
a state employee’s role parallels one in the private sector” does
not preclude a finding of state action. 487 U. S., at 56,
n. 15.

															When the government hires an agent, in other
words, the question is not whether it hired the agent to do
something that can be done in the private marketplace too. If that
were the key question, the doctor in West would not have
been a state actor. Nobody thinks that orthopedics is a function
“traditionally exclusively reserved to the State,” Jackson ,
419 U. S., at 352.

															The majority consigns West to a footnote,
asserting that its “scenario is not present here because the
government has no [constitutional] obligation to operate public
access channels.” Ante , at 7, n. 1. The majority
suggests that West is different because “the State was
constitutionally obligated to provide medical care to prison
inmates.” Ante , at 7, n. 1. But what the majority
ignores is that the State in West had no constitutional
obligation to open the prison or incarcerate the prisoner in the
first place; the obligation to provide medical care arose when it
made those prior choices.

															The City had a comparable constitutional
obligation here—one brought about by its own choices, made against
a state-law backdrop. The City, of course, had no constitutional
obligation to award a cable franchise or to operate public-access
channels. But once the City did award a cable franchise, New York
law required the City to obtain public-access channels, see supra , at 2, and to open them up as a public forum, see supra , at 9–10. That is when the City’s obligation to act in
accordance with the First Amendment with respect to the channels
arose. That is why, when the City handed the administration of that
forum off to an agent, the Constitution followed. See supra ,
at 10–13.[ 12 ]

															The majority is surely correct that “when a
private entity provides a forum for speech, the private entity is
not ordinarily constrained by the First Amendment.” Ante , at
9. That is because the majority is not talking about constitutional forums—it is talking about spaces where
private entities have simply invited others to come speak. A comedy
club can decide to open its doors as wide as it wants, but it
cannot appoint itself as a government agent. 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.[ 13 ]

															To see more clearly the difference between the
cases on which the majority fixates and the present case, leave
aside the majority’s private comedy club. 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. Cf. Rosenberger v. Rector and Visitors of Univ. of Va. , 515 U.S.
819 (1995). 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?

															On the other hand, the majority hastens to
qualify its decision, see ante , at 7, n. 1, 15, and to
cabin it to the specific facts of this case, ante , at 15.
Those are prudent limitations. Even so, the majority’s focus on Jackson still risks sowing confusion among the lower courts
about how and when government outsourcing will render any abuses
that follow beyond the reach of the Constitution.

															In any event, there should be no confusion here.
MNN is not a private entity that ventured into the marketplace and
found itself subject to government regulation. It was asked to do a
job by the government and compensated accordingly. If it does not
want to do that job anymore, it can stop (subject, like any other
entity, to its contractual obligations). But as long as MNN
continues to wield the power it was given by the government, it
stands in the government’s shoes and must abide by the First
Amendment like any other government actor.

															IV

															This is not a case about bigger governments
and smaller individuals, ante , at 16; it is a case about
principals and agents. 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.

															While the majority emphasizes that its decision
is narrow and factbound, ante , at 15, that does not make it
any less misguided. It is crucial that the Court does not continue
to ignore the reality, fully recognized by our precedents, that
private actors who have been delegated constitutional
responsibilities like this one should be accountable to the
Constitution’s demands. I respectfully dissent. Notes 1 That does not mean that
no restrictions apply at all to the government’s expression in such
spaces, but it does mean that the government can pick and choose
among different views. See Walker , 576 U. S., at ___,
___–___ (slip op., at 6, 17–18); Summum , 555 U. S., at
468. 2 The channels are not, of
course, a physical place. Under the Court’s precedents, that makes
no difference: Regardless of whether something “is a forum more in
a metaphysical than in a spatial or geographic sense,
. . . the same principles are applicable.” Rosenberger v. Rector and Visitors of Univ. of Va. , 515 U.S.
819 , 830 (1995) (treating “Student Activities Fund” as the
forum at issue and citing cases in which a school’s mail system and
a charity drive were the relevant forums). 3 As discussed below, it is
possible that some (or even many) public-access channels are
government speech. The channels that MNN administers, however, are
clearly better thought of as a public forum given the New York
regulations mandating open and equal access. See infra , at
9–10, and n. 7. 4 The parties have not
pointed this Court to any New York law definitively establishing
the status of the channels. But even if there were uncertainty
about the status of the channels under New York law, that would not
be a reason to resolve the case against respondents (plaintiffs
below) at the motion to dismiss stage. See infra , at 12,
n. 9, 14. 5 For example, during the
railroad boom, governments obtained not only physical easements in
favor of the public over tracks used, owned, and managed by private
railroads, including rights to use the rails and all relevant
“fixtures and appurtenances,” see, e.g., Lake Superior &
Mississippi R. Co. v. United States , 93 U.S.
442 , 444, 453–454 (1877), but also, in some situations, rights
to transmit personnel and freight for free or at reduced rates,
Ellis, Railroad Land Grant Rates, 1850–1945, 21 J. Land & P. U.
Econ. 207, 209, 211–212 (1945). 6 Though the majority
disagrees on the property question, I do not take it seriously to
dispute that this point would follow. See ante , at
14–15. 7 New York may be uncommon
(as it often is); public-access channels in other States may well
have different policies and practices that make them more like
government speech than constitutional forums. See Brief for
Respondents 30–31; Brief for American Civil Liberties Union
et al. as Amici Curiae 13–15. New York’s scheme,
however, is the only one before us. 8 Governments are, of
course, not constitutionally required to open prisons or public
forums, but once they do either of these things, constitutional
obligations attach. The rule that a government may not evade the
Constitution by substituting a private administrator, meanwhile, is
not a prison-specific rule. More than 50 years ago, for example,
this Court made clear in Evans v. Newton , 382 U.S.
296 (1966), that the city of Macon, Georgia, could not evade
the Fourteenth Amendment’s Equal Protection Clause by handing off
control of a park to a group “of ‘private’ trustees.” Id. ,
at 301. Rather, “the public character of [the] park require[d] that
it be treated as a public institution subject to the command of the
Fourteenth Amendment, regardless of who ha[d] title under state
law.” Id. , at 302. 9 Accordingly, this is not
a case in which a private entity has been asked to exercise
standardless discretion. See, e.g., American Mfrs. Mut.
Ins. Co. v. Sullivan , 526 U.S.
40 , 52 (1999). Had New York law left MNN free to choose its
favorite submissions, for example, a different result might well
follow. MNN has suggested to this Court that its contract with Time
Warner allows it “to curate content, to decide to put shows
together on one of our channels or a different channel.” Tr. of
Oral Arg. 6; see Reply Brief 9. But MNN’s contract cannot defeat
New York law’s “first-come, first-served, nondiscriminatory”
scheduling requirement, 16 N. Y. Codes, Rules & Regs.
§895.4(c)(4), and the discretion MNN asserts seems to be at most
some limited authority to coordinate the exact placement and timing
of the content it is obliged to accept indiscriminately, see Tr. of
Oral Arg. 25–26. That seems akin to the authority to make
reasonable time, place, and manner provisions, which is consistent
with administering any public forum. See Ward v. Rock
Against Racism , 491 U.S.
781 , 791 (1989). As for any factual assertions about how the
channels are operated in practice, this case arises from MNN’s
motion to dismiss, so the facts asserted against it must be
accepted as true. Hernandez v. Mesa , 582 U. S.
___, ___ (2017) ( per curiam ) (slip op., at 1). And any
uncertainty about the facts or New York law, in any event, would be
a reason to vacate and remand, not reverse. 10 Respondents alleged that the City
“created an electronic public forum” and “delegat[ed] control of
that forum to” MNN. App. 17. They further alleged that “[a]lmost
all cable franchise agreements require cable operators—as a
condition for easements to use the public rights-of-way—to dedicate
some channels for programming by the public,” id ., at 20,
invoked the state regulations requiring the designation of a
channel here, id ., at 21, and then alleged that the City’s
franchise agreement “requires Time Warner to set aside” the
channels, id ., at 22. While the complaint does not use the
words “property interest,” those allegations can be read to include
the idea that whatever was “set aside” or “dedicate[d],” id ., at 20, 22, qualified as a sufficient City property
interest to support respondents’ assertion of a public forum. Cf. People v. Brooklyn & Queens Transit Corp. , 273
N.Y. 394, 400–401, 7 N.E.2d 833, 835 (1937) (discussing dedications
of property to public use); cf. also Denver Area Ed.
Telecommunications Consortium, Inc. v. FCC , 518 U.S.
727 , 794 (1996) (Kennedy, J., concurring in part, concurring in
judgment in part, and dissenting in part) (noting
thistheory). 11 There
was a time when this Court’s precedents may have portended the kind
of First Amendment liability for purely private property owners
that the majority spends so much time rejecting. See Marsh v. Alabama , 326 U.S.
501 , 505–509 (1946) (treating a company-owned town as subject
to the First Amendment); Food Employees v. Logan Valley
Plaza , Inc. , 391 U.S.
308 , 315–320, and n. 9, 325 (1968) (extending Marsh to cover a private shopping center to the extent that it sought to
restrict speech about its businesses). But the Court soon stanched
that trend. See Lloyd Corp. v. Tanner , 407 U.S.
551 , 561–567 (1972) (cabining Marsh and refusing to
extend Logan Valley ); Hudgens v. NLRB , 424
U.S. 507 , 518 (1976) (making clear that “the rationale of Logan Valley did not survive” Lloyd ). Ever since,
this Court has been reluctant to find a “public function” when it
comes to “private commercial transactions” (even if they occur
against a legal or regulatory backdrop), see, e.g., Flagg
Bros. , Inc. v. Brooks , 436
U.S. 149 , 161–163 (1978), instead requiring a closer connection
between the private entity and a government or its agents, see, e.g. , Brentwood Academy v. Tennessee Secondary
School Athletic Assn. , 531 U.S.
288 , 298 (2001) (nonprofit interscholastic athletic association
“pervasive[ly] entwine[d]” with governmental institutions and
officials); Lugar v. Edmondson Oil Co. , 457 U.S.
922 , 942 (1982) (state-created system “whereby state officials
[would] attach property on the ex parte application of
one party to a private dispute”); see also Burton v. Wilmington Parking Authority , 365 U.S.
715 , 723–725 (1961) (restaurant in municipal parking garage
partly maintained by municipal agency); accord, ante , at
6–7. Jackson exemplifies the line of cases that supplanted
cases like Logan Valley —not cases like this
one. 12 Jackson v. Metropolitan
Edison Co ., 419 U.S.
345 (1974), by contrast, exemplifies a type of case in which a
private actor provides a service that there is no governmental
obligation to provide at all. See id ., at 353 (no state
requirement for government to provide utility service); see also, e.g., Hudgens , 424 U.S.
507 (shopping center). In West v. Atkins , 487 U.S.
42 (1988), by contrast, the prison was obli-gated to provide
health care in accordance with the Eighth Amendment to its
prisoners once it incarcerated them, and here, the City was
required to provide a public forum to its residents in accordance
with the First Amendment once it granted the cable franchise. See supra, at 11–13. 13 Accordingly, the majority need not
fear that “all private property owners and private lessees who open
their property for speech [c]ould be subject to First Amendment
constraints.” Ante , at 10. Those kinds of entities are not
the government’s agents; MNN is. Whether such entities face
“extensive regulation” or require “government licenses, government
contracts, or government-granted monopolies,” ante , at 12,
is immaterial, so long as they have not accepted the government’s
request to fulfill the government’s duties on its
behalf.

Summary: The Supreme Court ruled that a private nonprofit corporation, MNN, operating public access channels on a cable system in Manhattan, is not a state actor and is therefore not subject to First Amendment constraints on its editorial discretion. The Court applied the state-action doctrine, which distinguishes between governmental and private actors, and concluded that operating public access channels is not a traditional, exclusive public function. The Court also emphasized that a private entity opening its property for speech by others does not automatically become a state actor. This decision upholds the editorial discretion of private entities managing public access channels, even when granted a government-authorized monopoly.