Halleck v. Manhattan Cmty. Access Corp.

882 F.3d 300
CourtCourt of Appeals for the Second Circuit
DecidedFebruary 9, 2018
DocketDocket No. 16-4155; August Term 2016
StatusPublished
Cited by7 cases

This text of 882 F.3d 300 (Halleck v. Manhattan Cmty. Access Corp.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Halleck v. Manhattan Cmty. Access Corp., 882 F.3d 300 (2d Cir. 2018).

Opinions

JON O. NEWMAN, Circuit Judge

This appeal presents the issue of whether the First Amendment's limitation on governmental restriction of free speech applies, in the circumstances of this case, to the operators of public access television channels. More specifically, the main issue is whether the Amendment applies to employees of a non-profit corporation, designated by the Manhattan Borough President to oversee public access TV channels, who are alleged to have suspended individuals involved in public access TV programming from using the corporation's facilities. This issue arises on an appeal by Deedee Halleck and Jesus Papoleto Melendez from the December 14, 2016, judgment of the District Court for the Southern District of New York (William H. Pauley III, District Judge). See Halleck v. City of New York , 224 F.Supp.3d 238 (S.D.N.Y. 2016). The judgment dismissed, for failure to state a valid claim, the Plaintiffs-Appellants' complaint against Manhattan Community Access Corporation ("MCAC"); three of its employees, Daniel Coughlin, Jeanette Santiago, and Cory Bryce; and the City of New York (the "City"). The complaint alleged violations of 42 U.S.C. § 1983 ; Article 1, Section 8 of the New York State Constitution ; and Article 7 of the New York State Public Officers Law.

We conclude that the public access TV channels in Manhattan are public forums *302and that MCAC's employees were sufficiently alleged to be state actors taking action barred by the First Amendment to prevent dismissal of the claims against MCAC and its employees, but not against the City. We therefore affirm in part, reverse in part, and remand.

Background

Statutory, regulatory, and contractual framework. The Cable Communications Policy Act of 1984 (the "Act") has special provisions for two categories of cable TV channels-leased channels and public, educational, or governmental channels. "[T]o promote competition in the delivery of diverse sources of video programming," 47 U.S.C. § 532(a), the Act requires cable system operators to "designate channel capacity for commercial use by persons unaffiliated with the operator," id. § 532(b)(1). These are generally called "leased channels." See Denver Area Educational Telecommunications Consortium, Inc. v. FCC , 518 U.S. 727, 734, 116 S.Ct. 2374, 135 L.Ed.2d 888 (1996) (" Denver Area ").

The Act also authorizes cable franchising authorities to require for franchise renewal "that channel capacity be designated for public, educational, or governmental use," 47 U.S.C. § 531(b), and to require "adequate assurance that the cable operator will provide adequate public, educational, and governmental access channel capacity, facilities, or financial support,"id. § 541(a)(4)(B). These are what Justice Kennedy's opinion in Denver Area called "PEG access channels." 518 U.S. at 781, 116 S.Ct. 2374. Public access channels, the P in PEG, are "available at low or no cost to members of the public, often on a first-come, first-served basis." Id. at 791, 116 S.Ct. 2374.1

In New York, a Public Service Commission regulation requires a cable TV system with a capacity for 36 or more channels to "designate ... at least one full-time activated channel for public access use." N.Y. Comp. Codes R. & Regs. tit. 16, § 895.4(b)(1). The regulation defines a public access channel as a channel "designated for noncommercial use by the public on a first-come, first-served, nondiscriminatory basis." Id. § 895.4(a)(1).

The City awarded cable franchises for Manhattan to Time Warner Entertainment Company, L.P. ("Time Warner"). First Amended Complaint ("FAC") ¶ 30. The franchise agreement for Northern Manhattan provides that Time Warner will provide four public access channels. The agreement recites that the Manhattan Borough President has designated a not-for-profit, nonmembership corporation to serve as the Community Access Organization ("CAO") for the borough "under whose jurisdiction the Public Access Channels shall be placed for purposes of Article 8 of this Agreement," which applies to public, educational, and governmental services. That CAO is the Defendant-Appellee MCAC, known as Manhattan Neighborhood Network ("MNN").

Allegations of First Amendment violations. Plaintiffs-Appellants Deedee Halleck and Jesus Papoleto Melendez alleged that MNN, three of its employees, and the City violated their First Amendment rights by suspending them from using MNN's public access channels because of disapproval of the content of a TV program that Halleck had submitted to *303MNN's programming department for airing on MNN's public access channel. This claim is based on the following factual allegations, which we accept as true for purposes of reviewing, de novo , the dismissal of the complaint.

Both Halleck and Melendez have been involved in producing public access programming in Manhattan. In July 2012, MNN held an event to mark the opening of the El Barrio Firehouse Community Media Center ("El Barrio Firehouse"). Halleck and Melendez stood outside, interviewing invitees.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Manhattan Community Access Corp. v. Halleck
587 U.S. 802 (Supreme Court, 2019)
Freedom Watch, Inc. v. Google Inc.
District of Columbia, 2019
Freedom Watch, Inc. v. Google, Inc.
368 F. Supp. 3d 30 (D.C. Circuit, 2019)
Brian Davison v. Phyllis Randall
912 F.3d 666 (Fourth Circuit, 2019)
Knight First Amendment Inst. At Columbia Univ. v. Trump
302 F. Supp. 3d 541 (S.D. Illinois, 2018)

Cite This Page — Counsel Stack

Bluebook (online)
882 F.3d 300, Counsel Stack Legal Research, https://law.counselstack.com/opinion/halleck-v-manhattan-cmty-access-corp-ca2-2018.