(New York)—The Supreme Court’s ruling this month against two individuals who sued a private nonprofit corporation operating a public access channel shields private companies from liability in the First Amendment arena, PEN America said in a statement today.

In a 5-4 decision, the U.S. Supreme Court reversed the judgement of the Second Circuit and ruled against the plaintiffs in Manhattan Community Access Corporation v. Halleck, effectively establishing that the Manhattan Community Access Corporation, a private company, could not be considered a government actor despite its role in providing public access channels.

The case arose when two filmmakers, DeeDee Halleck and Jesus Papoleto Melendez, produced a film critical of Manhattan Community Access Corporation, a television company, which was then to be aired on its public access channels.

The corporation televised the film but later suspended both Halleck and Melendez from using all of the company’s services and facilities. Halleck and Melendez sued the company on the claim that that it violated their First Amendment rights by restricting their access to the public access platform due to the content of their film.

The key point of contention within the case is whether the Manhattan Community Access Corporation (referred to by the high court as “MNN”) should be considered a private entity or whether its provision of public access channels makes it a public actor.

Justice Kavanaugh delivered the majority opinion, arguing that a private entity that opens its property for speech by others is not “transformed” by that fact alone into a state actor, and therefore is not subject to First Amendment constraints on its editorial discretion. In the dissenting opinion, the remaining four Justices highlighted the fact that the channels are clearly a public forum, arguing that by delegating the administration of that forum to MNN, the City’s obligations to abide by the First Amendment did not evaporate.

“The ruling in Halleck that private entities operating public forums are not beholden to the First Amendment could have broader consequences if applied in other contexts,” said Nora Benavidez, Director of U.S. Free Expression Programs at PEN America. “Although this case does not reference social media explicitly, like the Manhattan Community Access Corporation, Youtube, Facebook, and Twitter are private companies that provide essentially public forums. This ruling could therefore have implications for questions of company liability for the content shared on their platforms. At a moment when proliferating hate speech and abuse online are causing many to question how and to what degree social media companies should be held accountable, this ruling puts down a marker on questions of liability of private actors for First Amendment violations in one of the great debates of our time.”  


Contact: PEN America media consultant Suzanne Trimel, [email protected]

PEN America stands at the intersection of literature and human rights to protect open expression in the United States and worldwide. We champion the freedom to write, recognizing the power of the word to transform the world. Our mission is to unite writers and their allies to celebrate creative expression and defend the liberties that make it possible. pen.org