No. 17-1702

In the Supreme Court of the United States
MANHATTAN COMMUNITY ACCESS CORPORATION,
DANIEL COUGHLIN, JEANETTE SANTIAGO,
& CORY BRYCE,
Petitioners,
v.
DEEDEE HALLECK & JESUS PAPOLETO MELENDEZ,
Respondents.
On Petition for a Writ of Certiorari to the
United States Court of Appeals for the
Second Circuit
BRIEF IN OPPOSITION

ROBERT T. PERRY
45 Main Street, Ste. 528
Brooklyn, NY 11201
(212) 219-9410

PAUL W. HUGHES
Counsel of Record
MICHAEL B. KIMBERLY
Mayer Brown LLP
1999 K Street, NW
Washington, DC 20006
(202) 263-3000
phughes@mayerbrown.com

Counsel for Respondents

 i
TABLE OF CONTENTS
Table of Authorities.................................................... ii
Statement ....................................................................1
A. Legal background. ............................................3
B. Public access television. ...................................4
C. Factual background. .........................................9
D. Proceedings below...........................................11
Reasons for Denying the Petition .............................13
A. The court of appeals did not adopt a
“per se” rule. ....................................................13
B. The decision below is correct..........................20
1. Administering public forums is a
public function...........................................21
2. New York has chosen to designate
its public access channels as public
forums. .......................................................22
C. There is no circuit conflict. .............................28
D. Petitioners misstate the implications of
the holding below............................................32
Conclusion .................................................................36

 ii
TABLE OF AUTHORITIES
Cases
Alliance for Community Media v. FCC,
56 F.3d 105 (D.C. Cir. 1995) ..........................30, 31
Arkansas Educ. Television Comm’n v. Forbes,
523 U.S. 666 (1998)...................................... passim
Blum v. Yaretsky,
457 U.S. 991 (1982)................................................4
Brentwood Acad. v. Tennessee Secondary
Sch. Athletic Ass’n,
531 U.S. 288 (2001)............................................3, 4
Caviness v. Horizon Cmty. Learning Ctr., Inc.,
590 F.3d 806 (9th Cir. 2010)................................34
Cornelius v. NAACP Legal Def. & Educ.
Fund, Inc.,
473 U.S. 788 (1985)...................................... passim
Denver Area Educ. Telecomms. Consortium,
Inc. v. FCC,
518 U.S. 727 (1996)...................................... passim
Evans v. Newton,
382 U.S. 296 (1966)..........................................4, 21
Glendora v. Sellers,
2003 WL 22890043 (D.C. Cir. 2003)....................31
Hague v. Committee for Indus. Org.,
307 U.S. 496 (1939)........................................27, 28
International Soc’y for Krishna
Consciousness, Inc. v. Lee,
505 U.S. 672 (1992)..................................23, 24, 25
Jackson v. Metropolitan Edison Co.,
419 U.S. 345 (1974)............................................3, 4

 iii
Cases—continued
Knight First Amendment Institute at Columbia
University v. Trump,
302 F. Supp. 3d 541 (S.D.N.Y. 2018)...................35
Lebron v. National R.R. Passenger Corp.,
513 U.S. 374 (1995)................................................4
Lee v. Katz,
276 F.3d 550 (9th Cir. 2002)................................22
Loce v. Time Warner Entertainment
Advance/NewHouse Partnership,
191 F.3d 256 (2d Cir. 1999) ...........................31, 32
Marsh v. Alabama,
326 U.S. 501 (1946)........................................21, 27
McCullen v. Coakley,
134 S. Ct. 2518 (2014)..........................................21
Minnesota Voters All. v. Mansky,
138 S. Ct. 1876 (2018)..........................................23
Perry Educ. Ass’n v. Perry Local
Educators’ Ass’n,
460 U.S. 37 (1983)........................................ passim
Pleasant Grove City v. Summum,
555 U.S. 460 (2009)..............................................27
Rosenberger v. Rector & Visitors of Univ. of Va.,
515 U.S. 819 (1995)................................................3
Snyder v. Phelps,
562 U.S. 443 (2011)..............................................22
Southeastern Promotions, Ltd. v. Conrad,
420 U.S. 546 (1975)..............................................25
Thomas v. Chicago Park Dist.,
534 U.S. 316 (2002)..............................................33

 iv
Cases—continued
United Church of Christ v. Gateway Econ. Dev.
Corp. of Greater Cleveland,
383 F.3d 449 (6th Cir. 2004)................................22
United States v. Grace,
461 U.S. 171 (1983)................................................3
Walker v. Texas Div., Sons of Confederate
Veterans, Inc.,
135 S. Ct. 2239 (2015)....................................23, 32
Watchtower Bible & Tract Soc’y of N.Y., Inc. v.
Sagardia De Jesus,
634 F.3d 3 (1st Cir. 2011) ..............................21, 22
Widmar v. Vincent,
454 U.S. 263 (1981)........................................24, 25
Wilcher v. City of Akron,
498 F.3d 516 (6th Cir. 2007)..........................29, 30
Statutes and Regulations
47 U.S.C. § 230(c) ......................................................36
47 U.S.C. § 531 ......................................................5, 26
815 RICR § 10-05-1.14.1 ...........................................17
Ariz. Rev. Stat. Ann. § 9-506(D)(1) .....................16, 19
Cal. Pub. Util. Code § 5800 .......................................18
Cal. Pub. Util. Code § 5870 .................................16, 18
Conn. Agencies Regs. § 16-331a-2 ............................16
Fla. Stat. Ann. § 610.109 ..........................................16
Idaho Code Ann. § 50-3010 .......................................16
Ill. Mun. Code ch. 4-280, art. VII, § 370(1)...............18
Ind. Code Ann. § 8-1-34-25........................................16
Iowa Code Ann. § 477A.6 ..........................................16

 v
Statutes and Regulations—continued
Kan. Stat. Ann. § 12-2023.........................................16
La. Stat. Ann. § 45:1369............................................16
Me. Rev. St. Ann. tit. 30-A, § 3010 ...........................16
Minn. Stat. Ann. § 238.084 .......................................17
Mo. Ann. Stat. § 67.2703...........................................16
N.C. Gen. Stat. Ann. § 66-357...................................17
N.H. Rev. Stat. Ann. § 53-C:3-a................................16
N.J. Admin. Code § 14:18-14:4..................................17
N.Y. Comp. Codes R. & Regs. tit. 16, § 895.1(f) .........5
N.Y. Comp. Codes R. & Regs. tit. 16, § 895.4... passim
Nev. Rev. Stat. § 67.711.810 .....................................16
Ohio Rev. Code Ann. § 1332.30.................................17
Okla. Stat. Ann. tit. 11, § 22-107.1 ...........................17
Tenn. Code Ann. § 7-59-309(a) .................................17
Tex. Util. Code Ann. § 66.009 ...................................17
Va. Code Ann. § 15.2-2108.22 ...................................17
Vt. Stat. Ann. tit. 30, § 504 .......................................17
W. Va. Code Ann. § 24D-1-9......................................17
Other Authorities
Cable Franchise Agreement by and Between
the City of New York and Time Warner
Entertainment Company, L.P.,
perma.cc/UTP3-JW2Q ................................. passim
Community Access Organization “CAO”
Grant and Use Agreement,
perma.cc/63EZ-VYHY ..................................7, 8, 15
H.R. Rep. No. 98-934 (1984)........................................5

 vi
Other Authorities—continued
Membership, Creative Tucson, goo.gl/yaiafS ...........20
Member Manual, Creative Tucson,
goo.gl/eFgprm.......................................................19
MNN Staff, Manhattan Neighborhood Network,
perma.cc/A2VX-7QUF.................................. passim
Producer Information, Houston Media Source,
goo.gl/yufVkz ........................................................20
Public Access Guidelines, L.A. Cable Access
Corp., perma.cc/JE7W-P87H ...............................18

 1
STATEMENT
New York City has chosen to designate its public
access television channels as public forums: As mandated by state law, its channels are free for residents
to use; the network must display residents’ noncommercial videos on a first-come, first-served basis; and
the cable operator can refuse to carry content only if
it is material unprotected by the First Amendment.
State law thus prohibits public access channels from
exercising editorial control.
Most other states and municipalities take a very
different approach to their public access television
channels. We have uncovered just one other state
(Rhode Island) with a first-come, first-served law like
New York’s. Throughout the rest of the country, public access channels can and do exercise editorial control. Tennessee, for example, restricts public access
television to content of local interest. Los Angeles uses an editorial board to curate content.
Thus, whereas New York has chosen to designate
its public access channels as public forums, most
other state and local governments have not.
Petitioners do not seriously dispute that, if New
York’s public access channels are public forums, petitioners’ regulation of them is state action. Indeed,
that point is elementary. If a municipality delegates
administration of its public sidewalks to a nonprofit
corporation, regulation of those sidewalks is still
bound by the First Amendment.
None of this is a surprise to petitioner Manhattan Community Access Corporation d/b/a Manhattan
Neighborhood Network (MNN). Per its mission
statement, MNN’s raison d’être is to “ensure the ability of Manhattan residents to exercise their First

 2
Amendment rights * * * on an open and equitable
basis.” Pet. App. 37a. In view of this acknowledged
purpose, this petition—which asserts that the First
Amendment does not apply at all—is nothing short
of extraordinary.
In attempting to paint this case as worthy of further review, petitioners rely on a false premise. The
petition rests on the contention that the decision below holds that all public access channels are public
forums. The questions presented turn on this assertion, and it pervades the entirety of the petition.
That is fundamentally incorrect. The decision below is tethered to New York’s particular legal
“framework”; the court stated explicitly that it was
not “determining whether a public access channel is
necessarily a public forum” in all contexts. Pet. App.
13a. Nor could the decision bind elsewhere. The significant distinctions in state and local law—
especially whether there is a first-come, first-served
law—drive different results.
In sum, the particular choices state and local
governments make determine whether the First
Amendment applies to a public access channel. That
conclusion is neither surprising nor concerning.
Petitioners, by contrast, would run roughshod
over local autonomy, denying state and municipal
governments the discretion to determine whether
their public access channels qualify as public forums.
The Court should reject petitioners’ request to impose an inflexible, one-size-fits-all policy on every local government. Congress allowed for local decision
making; those decisions should now be respected.
The Court should deny the petition.

 3
A. Legal background.
This case sits at the intersection of two doctrines:
the First Amendment’s robust protection of public forums and the Fourteenth Amendment’s state-action
requirement.
1. First Amendment protections are at their zenith in public forums. Content-based speech restrictions in public forums must pass strict scrutiny.
Perry Educ. Ass’n v. Perry Local Educators’ Ass’n,
460 U.S. 37, 45 (1983).
There are “traditional” and “designated” public
forums. Traditional public forums inherently exist;
they are “‘public places’ historically associated with
the free exercise of expressive activities, such as
streets, sidewalks, and parks.” United States v.
Grace, 461 U.S. 171, 177 (1983). The government
creates a designated public forum by “intentionally
opening a nontraditional forum for public discourse.”
Cornelius v. NAACP Legal Def. & Educ. Fund, Inc.,
473 U.S. 788, 802 (1985). A designated public forum
need not be a physical location. Rosenberger v. Rector
& Visitors of Univ. of Va., 515 U.S. 819, 830 (1995).
2. The First Amendment binds state actors. But
state actors are not limited to government entities.
Sometimes, “an ostensibly private organization or
individual” takes an action that “may be fairly treated as that of the State itself.” Brentwood Acad. v.
Tennessee Secondary Sch. Athletic Ass’n, 531 U.S.
288, 295 (2001) (quoting Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351 (1974)). Since the “Fourteenth Amendment is not [then] to be displaced,” the
Constitution applies to private action “fairly attributable” to the government. Ibid.

 4
Whether private activity qualifies as state action
is “necessarily [a] fact-bound inquiry.” Brentwood,
531 U.S. at 298. An entity may be deemed a state actor when it is “coerc[ed]” or “significant[ly] encourage[ed]” by the government (Blum v. Yaretsky, 457
U.S. 991, 1004 (1982) (the “compulsion test”)); when
it “is ‘entwined with governmental policies’” (Brentwood, 521 U.S. at 296 (quoting Evans v. Newton, 382
U.S. 296, 299 (1966)) (the “entwinement test”)); or
when, despite its label, it really just is a government
agency (Lebron v. National R.R. Passenger Corp., 513
U.S. 374, 397 (1995)).
Another framework, the “public function test,” is
especially relevant here: “When private individuals
or groups are endowed by the State with powers or
functions governmental in nature, they become * * *
subject to its constitutional limitations.” Evans, 382
U.S. at 299. The test is satisfied by functions that are
“traditionally the exclusive prerogative of the State.”
Jackson, 419 U.S. at 353.
B. Public access television.
To operate in a particular region, “[c]able operators must obtain franchises from local governments
to lay the cable or optical fibers needed to reach subscribers.” Pet. App. 35a. When local governments extend cable franchises, they usually require cable providers to dedicate public access channels. Ibid.
Although federal law partially regulates these
channels, they are “run in various configurations”
under differing state and local regimes. Pet. 21-22.
Some municipalities (like New York State) have
adopted laws obligating the public access channel to
air videos, without charge, on a first-come, firstserved basis. Other governments have not. There are

 5
also significant differences in who operates the public access channels: nonprofit organizations, cable
companies, or even the local governments themselves
may operate them. Id. at 22 n.5.
1. Federal law empowers and favors public access
channels. When Congress established a national policy for the cable industry, it expressly gave local governments the right to require “that channel capacity
be designated for public [use].” 47 U.S.C. § 531. Congress intended these channels to be an “electronic
marketplace of ideas”—“the video equivalent of the
speaker’s soap box,” “available to all, poor and
wealthy alike.” H.R. Rep. No. 98-934, at 30, 36
(1984).
Congress did not, however, mandate the creation
of public access channels, nor did it dictate the terms
on which those channels must operate. Rather, Congress left to state and local governments significant
discretion as to individual policies.
2. In response to federal law, New York State has
adopted one model for public access channels.
New York State law obligates local governments
to establish a public access channel when issuing cable franchises. N.Y. Comp. Codes R. & Regs. tit. 16,
§§ 895.1(f), 895.4(b)(1).1 In doing so, the municipality
must designate an “entity” to operate the channel.
Id. § 895.4(c)(1).
New York State law, moreover, imposes certain
requirements on the administration of public access
channels. The entity operating the channel must carCable operators whose systems have fewer than 36 channels
are exempt from this requirement. Pet. App. 4a.
1

 6
ry all noncommercial content on a “first-come, firstserved, nondiscriminatory basis.” N.Y. Comp. Codes
R. & Regs. tit. 16, § 895.4(c)(4). And the entity must
run this material “without charge to the user.” Id. §
895.4(c)(6). See also Pet. App. 4a.
The State thus prohibits exercise of editorial control over public access content. Likewise, the cable
franchisee “shall not exercise any editorial control”—
unless the “content” is “unprotected by the First
Amendment.” N.Y. Comp. Codes R. & Regs. tit. 16, §
895.4(c)(8). And “[a] municipality shall not exercise
any editorial control over any use by the public of a
public access channel except as may be permitted by
law.” Id. § 895.4(c)(9).
State law also obligates public access channels to
open significant aspects of their records to public inspection. In New York, the “entity responsible for the
administration of a public access channel” must
“maintain a record of the use of such channel.” N.Y.
Comp. Codes R. & Regs. tit. 16, § 895.4(c)(10). The
entity must record “the names and addresses of all
persons using or requesting the use of any such
channel,” and it must make this information “available for public inspection for a minimum of two years.”
Ibid.
3. In establishing cable franchises, New York
City has adhered to these state-law obligations. The
City obligates cable franchisees to provide public access channels; in Manhattan, it has delegated administration of those channels to petitioner MNN; it requires cable franchisees to fund MNN via extensive
grants; it compels MNN to adhere to the state-lawrequired “first-come, first-served” and “without
charge” policies; and it retains partial direct control
over MNN.

 7
First, the City requires cable franchisees to dedicate channels for public access. The City, for example, has awarded a cable franchise in Manhattan to
Time Warner. Am. Compl. ¶ 30 (D. Ct. Dkt. 39).2 In
the Franchise Agreement, the City obligated Time
Warner to dedicate at least four channels for public
use. Franchise Agreement § 8.1.1.3 Time Warner
must carry these channels to every customer. Id. §
8.1.6(a).
Second, the City has delegated administration of
the public access channels to petitioner MNN. Pet.
App. 36a-37a. In the Franchise Agreement, the City
and Time Warner agreed that the Manhattan Borough President would “designate[]” a “nonprofit corporation” as the “Community Access Organization”
that operates the public access stations. Franchise
Agreement § 1.18. See also id. at § 8.1.7 to 8.1.12.
The City has designated petitioner MNN as the
“Community Access Organization” for Manhattan.
MNN therefore entered into a “CAO Agreement”
pursuant to the model attached to the Franchise
Agreement. See Pet. App. 37a; Franchise Agreement
§ 8.1.8 & Appendix C; Am. Compl. ¶ 33 (identifying
and describing the Community Access Organization
“CAO” Grant and Use Agreement by and Between
Time Warner Entertainment Company, L.P. and
Manhattan Community Access Corporation d/b/a
The City has also awarded cable franchises in Manhattan to
Verizon and RCN Corporation, which are subject to similar requirements. Am. Compl. ¶ 35.
2

The Amended Complaint (at ¶¶ 30-32) identifies and describes the Cable Franchise Agreement by and Between the
City of New York and Time Warner Entertainment Company,
L.P., which is available at perma.cc/UTP3-JW2Q.
3

 8
Manhattan Neighborhood Network (“CAO Agreement”), perma.cc/63EZ-VYHY).
The CAO Agreement recounts that “the Franchise Agreement requires Time Warner Cable to
make available * * * public access channels” and to
provide “support payments and Cash Grants.” Id. at
2. It further identifies that petitioner MNN “has
been designated by the Borough President as the
CAO to receive such grants.” Ibid.
Third, the City obligates MNN to adhere to the
state-law requirement that it run noncommercial
content without charge and on a “first-come, firstserved” basis. N.Y. Comp. Codes R. & Regs. tit. 16, §
895.4(c)(4). In particular, the CAO Agreement—
which the City established in its franchise agreement
with the cable operators—incorporates state law. It
obligates MNN to “maintain reasonable rules and
regulations to provide for open access to Public Access Channel time, facilities, equipment, supplies,
and training on a non-discriminatory basis and to
the extent required by applicable law.” Am. Compl. ¶
33 (quoting CAO Agreement § 3.3.01). See also Pet.
App. 37a (quoting same).
Reflective of these state-law obligations, MNN
has plainly stated its “mission”: to “ensure the ability
of Manhattan residents to exercise their First
Amendment rights * * * on an open and equitable
basis.” Pet. App. 37a.
Fourth, the City uses its coercive power over cable franchisees to provide for MNN’s funding. As part
of the franchise agreements, the City obligates cable
franchisees to make multi-million dollar annual
payments to MNN. See, e.g., Franchise Agreement §
8.3; CAO Agreement §§ 2.1 & 2.2.

 9
Fifth, pursuant to MNN’s bylaws, the City retains partial control of MNN. Pet. App. 37a. The
Manhattan Borough President selects two of MNN’s
directors. Ibid. The President additionally serves as
a non-voting, ex officio member of MNN’s board. See
MNN Staff, Manhattan Neighborhood Network,
perma.cc/A2VX-7QUF.
C. Factual background.
Respondents DeeDee Halleck and Jesus Papoleto
Melendez produced video content that they aired on
MNN’s public access stations. Pet. App. 34a.
In December 2011, Halleck was denied entry to
an MNN board meeting. Pet. App. 38a. In March
2012, respondent Melendez attended an MNN board
meeting at the invitation of petitioner Coughlin,
MNN’s executive director. Ibid. Respondent Halleck
came as well and began videotaping the meeting; as
a result, MNN employee Iris Morales called Melendez “a traitor.” Ibid. Later in March 2012, “Morales
screamed at [respondent Melendez], threw papers
and lightly struck him.” Ibid.
In July 2012, petitioners hosted “an event to
mark the opening of the El Barrio Firehouse Community Media Center.” Pet. App. 5a. This was “an
invitation-only formal ceremony * * * attended by
many New York City politicians.” Id. at 38a. Respondents, despite being active contributors to MNN,
were not invited. Ibid.
Respondents stood outside the event, interviewing attendees. Pet. App. 5a-6a. Respondents attempted to interview Joseph Figueroa, Morales’ boyfriend. Id. at 39a. After Figueroa and respondent
Melendez exchanged words, Figueroa “rushed at”
Melendez, attempting to strike him. Ibid. “An MNN

 10
security guard intervened, grabbing Mr. Figueroa before he could strike [respondent] Melendez.” Am.
Compl. ¶ 79. Security nonetheless allowed Figueroa
to attend the El Barrio event, while continuing to
deny respondents access. Id. ¶ 80.
In reaction to this incident, Melendez made an
on-camera comment regarding race and class:
You know what’s funny? I got to wait for my
people to stop working in this building so
that I can gain access to it. Do you understand what I’m saying? Our people, our people, people of color, are in control of this
building and I have to wait until they are
fired, or they retire, or someone kills them so
that I can come and have access to the facility here. Because I am being locked out by
people of color. There’s irony for you.
Pet. App. 39a.
Respondents ultimately produced a video, “The
1% Visits the Barrio,” that included this footage. Pet.
App. 5a-6a. The film was critical of petitioner MNN,
“present[ing] MNN as an organization more interested in pleasing ‘the 1%’ than the East Harlem community.” Id. at 39a. Respondent Melendez denounced
MNN for refusing him entry to the ceremony while it
embraced well-connected city politicians. Id. at 38a39a.
After initially running it, MNN later permanently banned the video from its networks. Pet. App. 6a7a, 40a. And it suspended respondents from submitting any programming for airing: Halleck, for a year;
and Melendez, forever. Id. at 40a.

 11
The parties disagree about why. Petitioners now
claim that the video was “intended to incite violence
and harass[] staff.” Pet. App. 40a. Respondents allege that MNN’s purported justifications are pretexts
for its real motive—disapproval of their video’s substantive message. Id. at 6a-7a; Am. Compl. ¶¶ 91-92,
105-108, 110.
D. Proceedings below.
Respondents sued petitioners, asserting that petitioners violated their First Amendment by retaliating against them because of their viewpoint. Pet.
App. 34a-35a.4
1. Recognizing the issue a “close call,” the district
court granted petitioners’ motion to dismiss. Pet.
App. 34a-53a. The court agreed that “the regulation
of free speech in a public forum is ‘a traditional and
exclusive public function.’” Id. at 45a-46a. “Thus, if
[respondents] have plausibly pled that MNN’s administration of public access channels constitutes the
administration of public fora, then they have plausibly pled that MNN was a ‘state actor’ under the public function test.” Id. at 46a.
The district court, however, concluded that
MNN’s public access channels are not public forums.
Pet. App. 46a-53a. It reasoned that “MNN is a private company that operates television channels, and
the ownership and operation of an entertainment facility are not powers traditionally exclusively reserved to the State, nor are they functions of sovereignty.” Id. at 51a (quotation and alteration omitted).
They also sued New York City. The district court dismissed
those claims (Pet. App. 43a-44a), and the court of appeals affirmed (id. at 17a-18a).
4

 12
2. The court of appeals reversed. Pet. App. 2a18a. Considering the particular “statutory, regulatory, and contractual framework under which this cases arises,” the court concluded that the channels operated by MNN are public forums. Id. at 13a. Given
New York’s legal regime, “[a] public access channel is
the electronic version of the public square.” Ibid.
The court expressly noted that it was not “determining whether a public access channel is necessarily a public forum simply by virtue of its function
in providing an equivalent of the public square.” Pet.
App. 13a. Rather, it tied its conclusion to the specifics of the state regulations that require first-come,
first-served access, the law that restricts the ability
of channels to regulate the station content, the City’s
designation of MNN as the channel administrator,
and the contractual provisions obligating MNN to
adhere to state law. Id. at 4a, 13a-14a & n.7.
Because the channels are public forums, the
court concluded that, in designating petitioner MNN
as the regulator, the City delegated a public function
to MNN. Pet. App. 14a-15a. The connection between
the City and MNN “is established in this case by the
fact that the Manhattan Borough President designated MNN to run the public access channels.” Ibid.
Thus, a “senior municipal official” has conferred on
MNN and its employees “the authority to administer” a public forum. Id. at 15a.
Judge Lohier concurred. Pet. App. 19a-21a. He
underscored the “the specific circumstances of this
case” render “the public function test” appropriate.
Id. at 19a. He understood the majority opinion as
holding that New York City delegated to MNN the
public function of administering and regulating
speech in a public forum. Id. at 21a. Indeed, the pub-

 13
lic access channels run programming relating “to political advocacy, cultural and community affairs,
New York elections, religion—in a word, democracy.”
Id. at 20a.
Judge Jacobs concurred in part and dissented in
part. Pet. App. 22a-33a. He would have concluded
that MNN’s channels are “entertainment facilit[ies],”
not public forums. Id. at 25a. Since “[t]he ownership
and operation of an entertainment facility are not
powers traditionally exclusively reserved to the
state,” he would have found that MNN was not a
state actor. Ibid. Judge Jacobs did not address the
requirement imposed by New York State and the
City obligating MNN to air content on a “first-come,
first-served” basis. See id. at 22a-33a.
REASONS FOR DENYING THE PETITION
Review is unwarranted: this case does not implicate the questions presented by the petition; the decision below is correct; there is no conflict among the
circuits; and the lower court’s decision has little
practical consequence.
A. The court of appeals did not adopt a
“per se” rule.
The petition rests on the premise that the court
of appeals adopted “a per se rule that private operators of public access channels are state actors subject
to constitutional liability.” Pet i. The court of appeals, petitioners maintain, held that “public access
channels are always public fora.” Id. at 18. This sup-

 14
posed holding is the basis of both questions presented. Id. at i.5
Petitioners are incorrect. The court of appeals did
not reach that conclusion—and its holding certainly
does not depend on it. In fact, the court explicitly
identified that it was not establishing a blanket rule
regarding public access channels; it did not “determin[e] whether a public access channel is necessarily
a public forum simply by virtue of its function in
providing an equivalent of the public square.” Pet.
App. 13a. Rather, the court twice underscored that
its decision was tethered to “the statutory, regulatory, and contractual framework under which this case
arises.” Ibid. See also id. at 13a-14a (evaluating state
and municipal law and the relevant contract). And,
in so concluding, the court tied its holding to “the
municipal authority given to MNN in this case” and
“the circumstances of this case.” Id. at 17a.
There are several unique “statutory, regulatory,
and contractual” provisions that create the relevant
“framework” in New York City. Pet. App. 13a. These
include:
•

First-come, first-served access: New York
law requires a public access channel to serve
the public on a “first-come, first-served” basis. Pet. App. 4a.

The second question also rests on the factual assertion that
New York “has no control over” petitioner MNN’s “board or operations.” Pet. i. But this is obviously false: as petitioners partially acknowledge (Pet. 4), the Manhattan Borough President
sits on MNN’s board of directors and also chooses two other directors. Pet. App. 37a; MNN Staff, Manhattan Neighborhood
Network. Local government thus does have some direct control
over MNN.
5

 15
•

Free air time: New York law provides that
“[c]hannel time for [public] access programming shall be without charge to the user.”
N.Y. Comp. Codes R. & Regs. tit. 16, §
895.4(c)(6).

•

Noncommercial material: New York law
restricts the public access channel to noncommercial material. Pet. App. 4a.

•

A “must carry” obligation that is coextensive with the First Amendment: New
York State law obligates cable franchisees to
carry public access network content unless
the material is not protected by the First
Amendment. Id. at 14a n.7.

•

Public reporting: New York law requires
that public access networks, including petitioner MNN, maintain publicly accessible
records regarding the identities of individuals requesting airtime. N.Y. Comp. Codes R.
& Regs. tit. 16, § 895.4(c)(10).

•

Mandatory creation: New York law obligates municipalities, when awarding cable
franchises to operators with more than 36
channels, to create a public access station. Id.
§ 895.4(b)(1).

•

Coercive funding: The City funds petitioner MNN—albeit indirectly—by obligating cable companies to make extensive, multimillion dollar annual payments. See Franchise Agreement § 8.3; CAO Agreement §§
2.1 & 2.2.

•

Board control: The City appoints two of
MNN’s directors, and the Manhattan Bor-

 16
ough President has a permanent, ex officio
seat on the board. Pet. App. 37a; MNN Staff,
Manhattan Neighborhood Network.
•

Contract negotiation: The City—in its cable franchise agreement—negotiated and
controlled the terms of MNN’s relationship
with cable operators. Via that contract, the
City obligates MNN to adhere to all state and
local laws regarding its operations—
including the public access requirement. Pet.
App. 37a; Franchise Agreement § 8.1.8 &
Appendix C.

The court of appeals’ consideration of this
“framework” (Pet. App. 13a) reflects the precise sort
of context-based consideration required by the stateactor analysis. See Pet. 19-21. Taken together, these
features compel the conclusion that New York City
has chosen to designate its public access stations as
public forums. See pp. 22-25, infra.
Most local governments, however, have materially different laws. Petitioners do not attempt to
demonstrate that other jurisdictions replicate—much
less approximate—New York’s laws. The decision below, therefore, has no bearing elsewhere.
It appears that the vast majority of states lack
any obligation analogous to New York’s “first-come,
first-served” law. See, e.g., Ariz. Rev. Stat. Ann. § 9506(D)(1); Cal. Pub. Util. Code § 5870; Conn. Agencies Regs. § 16-331a-2; Fla. Stat. Ann. § 610.109;
Idaho Code Ann. § 50-3010; Ind. Code Ann. § 8-1-3425; Iowa Code Ann. § 477A.6; Kan. Stat. Ann. § 122023; La. Stat. Ann. § 45:1369; Me. Rev. St. Ann. tit.
30-A, § 3010; Mo. Ann. Stat. § 67.2703; Nev. Rev.
Stat. § 67.711.810; N.H. Rev. Stat. Ann. § 53-C:3-a;

 17
N.J. Admin. Code § 14:18-14:4; N.C. Gen. Stat. Ann.
§ 66-357; Ohio Rev. Code Ann. § 1332.30; Okla. Stat.
Ann. tit. 11, § 22-107.1; Tenn. Code Ann. § 7-59309(a); Tex. Util. Code Ann. § 66.009; Vt. Stat. Ann.
tit. 30, § 504; Va. Code Ann. § 15.2-2108.22; W. Va.
Code Ann. § 24D-1-9. Minnesota expressly authorizes municipalities to determine for themselves whether public access channels must be “available for use
by the general public on a first-come, first-served,
nondiscriminatory basis.” Minn. Stat. Ann. §
238.084. The only other state of which we are aware
to have a first-come, first-served law is Rhode Island.
See 815 RICR § 10-05-1.14.1.
The substantial majority of state laws thus allow
local governments to structure public access channels in a way that does not designate them public forums. Governments may choose to adopt a policy
that imposes substantive or editorial controls, rather
than committing to air all content on a first-come,
first-served basis.
A local government may, for example, restrict
public access channels to only those topics with special relevance to the community. Tennessee has done
so statewide: it limits public access channels to “local
interest programming that may include meetings of
local governing bodies, boards and commissions,
community events, community sporting events,” and
other content defined by regional interest. Tenn.
Code Ann. § 7-59-309(a)(3).
Alternatively, a government may (either itself or
via a nonprofit administrator) curate content. In this
way, it may treat a public access channel like a museum, public theater, or public broadcaster, airing
only select content.

 18
The Los Angeles public access station has elected
to do just that. Like most states, California lacks a
statewide first-come, first-served law. See Cal. Pub.
Util. Code § 5870.6 That has consequences: the Los
Angeles Cable Television Access Corporation airs only “the ‘Best Of’ Public Access programming in the
City of Los Angeles.” Public Access Guidelines, L.A.
Cable Access Corp., perma.cc/JE7W-P87H. An “advisory committee” selects the content deemed “Best Of”
on “a quarterly basis.” Ibid. Only after content is selected as “Best Of” will it then run on a “First-come,
First-serve basis.” Ibid.7
Creative Tucson—the Tucson public access
channel—combines regional preference and curation.
Like California, there is no first-come, first-served
The current structure of the Los Angeles Cable Television
Access Corporation stems from California’s 2006 Digital Infrastructure and Video Competition Act. See Cal. Pub. Util. Code §
5800 et seq. Previously, California franchise agreements often
included a first-come, first-served policy. As the Los Angeles
station confirms, those old policies have now been replaced.
These local decisions matter.
6

Chicago—and the Chicago Access Corporation (CAC)—also
has no first-come, first-served policy. CAC may allocate channel
time and space on Chicago’s public access channels “on a reasonable, nondiscriminatory basis.” CAC Am. Br. 18 (citing Chi.,
Ill. Mun. Code ch. 4-280, art. VII, § 370(1)). This, in CAC’s view,
affords it “significant editorial discretion” in scheduling public
access programs. CAC Am. Br. 18.
7

Amicus Chicago Access Corporation further highlights that,
unlike petitioner MNN, “[n]one of the members of its Board of
Directors is appointed or controlled by any government official.”
CAC Am. Br. 15. But here, the Manhattan Borough President
has a permanent seat on MNN’s Board, and the President selects two more board members. MNN Staff, Manhattan Neighborhood Network.

 19
rule in Arizona. See Ariz. Rev. Stat. Ann. § 9506(D)(1). Tuscon’s Member Manual provides that
“[p]rograms of local interest will have priority over
other programs.” Member Manual, Creative Tucson,
goo.gl/eFgprm. And Creative Tucson curates: “Member content is considered for broadcast on our cable
channel if it meets the standards of the Creative
Tucson staff and Advisory Board, which are comprised of artists and media professionals.” Ibid.
Thus, while “Creative Tucson is committed to giving
each program and producer an equal and fair opportunity to showcase and participate,” it will use its editorial prerogative “to provid[e] high quality, locally
made programming.” Ibid.
New York’s law requiring statewide first-come,
first-served access is the rare exception, not the
norm. Yet this is perhaps the most critical factor
supporting the conclusion that New York has designated its public access channels as public forums. As
we will elaborate, New York has structured its public
access channels as “generally available to a certain
class of speakers”; most other local governments,
however, “reserve eligibility for access to the forum
to a particular class of speakers, whose members
must then, as individuals, ‘obtain permission’ to use
it.” Arkansas Educ. Television Comm’n v. Forbes, 523
U.S. 666, 679 (1998) (citation omitted). For purposes
of the public-forum analysis, this distinction is essential.
There are other differences, too. Many other
states do not obligate their public access channels to
provide free access. As a result, some channels
charge fees. The Houston Media Source, for example,
charges to air content; an adult Houston resident
must pay $225 a year for channel privileges. See

 20
Producer Information, Houston Media Source, goo.gl
/yufVkz. To air programs on Creative Tucson, an individual must become a member at a cost of $5 per
month. See Membership, Creative Tucson, goo.gl
/yaiafS.
These are just some of the different ways in
which public access channels are configured. Petitioners do not disagree. They recognize that “public
access channels have historically been run in various
configurations and, most importantly, by a diverse
set of operators.” Pet. 21.
Differences in local law ultimately drive different
results. New York’s decision to designate a digital
public forum—and the resulting decision below—
says nothing at all about the treatment of public access channels in other regions, where states and municipalities have made different choices. Indeed, the
Los Angeles and Tucson stations are likely not public
forums. Those conclusions would be entirely consistent with the decision below.
This case does not, therefore, implicate the questions for which petitioners seek review. The actual
issue is the fact-bound question of whether New York
has chosen to designate its public access channels as
public forums, rendering administration of those
channels a public function. Review of this case would
establish a rule good for New York only.
B. The decision below is correct.
Review is additionally unwarranted because the
decision below is correct. Administering a public forum is a public function; petitioners do not appear to
disagree. And, as we have begun to explain, New
York City has purposefully designated its public access stations as public forums.

 21
1. Administering public forums is a public
function.
Petitioners do not appear to dispute that regulation of a public forum is a public function. See Pet.
15-17. Indeed, this issue is long settled.
A state actor has “very limited” authority “to restrict speech” in places that are public forums.
McCullen v. Coakley, 134 S. Ct. 2518, 2529 (2014). It
typically may not impose viewpoint-based regulations, but it may enforce reasonable time, place, and
manner restrictions. See ibid.
These crucial First Amendment protections do
not dissipate when a municipality delegates regulation of the public forum to a nominally private actor.
A city cannot circumvent its citizens’ free-speech
rights by contracting out administration of a public
park or sidewalk to a private security force.
In Marsh v. Alabama, 326 U.S. 501 (1946), the
Court examined whether a company that regulated
speech in a shopping district in its privately owned
town became a state actor. The company, the Court
held, was performing a public function: the “public
* * * ha[d] an identical interest in the functioning of
the community [so] that the channels of communication remain free.” Id. at 506-507. See also Evans, 382
U.S. at 302 (“[T]he public character of this park requires that it be treated as a public institution subject to the command of the Fourteenth Amendment,
regardless of who now has title under state law.”).
The lower courts uniformly understand Marsh to
compel the conclusion that regulation of a public forum is a quintessential public function. See, e.g.,
Watchtower Bible & Tract Soc’y of N.Y., Inc. v.
Sagardia De Jesus, 634 F.3d 3, 10 (1st Cir. 2011)

 22
(“Regulating access to and controlling behavior on
public streets and property is a classic government
function.”); United Church of Christ v. Gateway
Econ. Dev. Corp. of Greater Cleveland, 383 F.3d 449,
455 (6th Cir. 2004) (noting that the operation of a
“public forum * * * serves as a public function”); Lee
v. Katz, 276 F.3d 550, 556-557 (9th Cir. 2002) (“[T]he
regulation of free speech within public forum” is
“quintessentially an exclusive and traditional public
function.”).
The district court below agreed that “the regulation of free speech in a public forum is ‘a traditional
and exclusive public function.’” Pet. App. 45a-46a.
And the court of appeals followed this wellestablished law, reasoning that “facilities or locations
deemed to be public forums are usually operated by
governments.” Id. at 14a-15a. As the concurrence
underscored, this was a public-function analysis. See
id. at 21a.
2. New York has chosen to designate its public access channels as public forums.
The court of appeals correctly concluded that—in
light of the decisions made by state and local government—Manhattan’s public access channels are
public forums.
a. Public forums come in two principal flavors:
traditional and designated. Perry Educ. Ass’n, 460
U.S. at 45-46.8 As to the latter, the state designates a
As we have noted, the petition centers on whether public access channels are “per se” public forums. Whether something
qualifies as a “traditional public forum” may well be a question
susceptible to uniform adjudication. See, e.g., Snyder v. Phelps,
562 U.S. 443, 456 (2011) (“[W]e have repeatedly referred to public streets as the archetype of a traditional public forum.”). But
8

 23
place “a public forum” when it “‘intentionally open[s]
a nontraditional forum for public discourse.’” International Soc’y for Krishna Consciousness, Inc. v. Lee,
505 U.S. 672, 680 (1992) (quoting Cornelius, 473 U.S.
at 802).
A designated public forum is entitled to the same
constitutional protections as a traditional one. That
is, “[t]he Constitution forbids a state to enforce certain exclusions from a forum generally open to the
public even if it was not required to create the forum
in the first place.” Perry Educ. Ass’n, 460 U.S. at 45.
See also Minnesota Voters All. v. Mansky, 138 S. Ct.
1876, 1885 (2018); Krishna Consciousness, 505 U.S.
at 678 (Once a government has “opened” a place “for
expressive activity by part or all of the public,”
“[r]egulation of such property is subject to the same
limitations as that governing a traditional public forum.”).
“[T]o ascertain whether [a government] intended
to designate a place not traditionally open to assembly and debate as a public forum,” the Court evaluates “the policy and practice of the government,” as
well as “the nature of the property and its compatibility with expressive activity.” Cornelius, 473 U.S.
at 802. See also Walker v. Texas Div., Sons of Confederate Veterans, Inc., 135 S. Ct. 2239, 2250 (2015).
Against this backdrop, New York City has undoubtedly designated its public access channels as public
forums.
First, New York City requires that its public access channels be “‘generally available’ to a class of
speakers.” Arkansas Educ. Television, 523 U.S. at
whether a government has designated a particular place a public forum is necessarily a context-specific question.

 24
679 (quoting Widmar v. Vincent, 454 U.S. 263, 264
(1981)). State and local law compel petitioner MNN
to provide free airtime for noncommercial content to
all individuals on a “first-come, first-served” basis.
Pet. App. 4a.
Petitioners cannot assert editorial control over
the content aired. This is the calling card of a public
forum. The Court has underscored the critical “distinction between ‘general access,’ which indicates the
property is a designated public forum, and ‘selective
access,’ which indicates the property is a nonpublic
forum.” Arkansas Educ. Television, 523 U.S. at 679
(citations omitted). New York’s public access channels are, by operation of state law, “general access.”
But, when local governments make different
choices, public access channels are “selective access.”
In those jurisdictions, channel administrators may
make “individual, non-ministerial judgments as to
which of the eligible” content airs. Arkansas Educ.
Television, 523 U.S. at 680. Not so in New York.
Second, city and state law mandate that among
the “purposes” of the public access channel is “the
designation of a forum” for expressive activity.
Krishna Consciousness, 505 U.S. at 683. As Judge
Lohier explained, petitioner MNN’s “programming
relates to political advocacy, cultural and community
affairs, New York elections, religion—in a word, democracy.” Pet. App. 20a. Indeed, MNN’s “mission” is
to “ensure the ability of Manhattan residents to exercise their First Amendment rights * * * on an open
and equitable basis.” Id. at 37a.
Third, “the nature of the property and its compatibility with expressive activity” can further support the conclusion that the government has desig-

 25
nated a place as a public forum. Cornelius, 473 U.S.
at 802. See also Widmar, 454 U.S. at 267 n.5 (observing that a university campus “possesses many of the
characteristics of a [traditional] public forum”);
Southeastern Promotions, Ltd. v. Conrad, 420 U.S.
546, 555 (1975) (noting that the theater was “designed for * * * expressi[on]”). A public access station
is no doubt compatible with expressive activity.
Fourth, New York City created the public access
channels: New York State obligates municipalities to
compel the creation of public access channels, and
New York City fulfilled that obligation in the requirements it has imposed on cable franchisees in
New York. See pp. 5-9, supra. This is the antithesis
of government “inaction.” Krishna Consciousness,
505 U.S. at 680.
This conduct, taken together, evinces New York
City’s unmistakable intent to designate its public access channels as public forums. While local governments are under no federal obligation to make this
decision, New York City has chosen to do so.
b. There is no reason to reach a different conclusion based on some theory relating to private property. Petitioners have developed no such argument,
and therefore they have waived any such contention
now. In any event, it is not an issue that warrants
review.
First, whatever one might think of the various
opinions in Denver Area, the issue that generated
disagreement there is not implicated here.
Denver Area concerned the constitutionality of
Section 10(c), which authorized cable companies to
decline to run content from public access channels.
Denver Area Educ. Telecomms. Consortium, Inc. v.

 26
FCC, 518 U.S. 727, 735 (1996) (plurality). Denver Area was thus a case about the property interest a cable company has in its cable distribution system. Justice Thomas in dissent focused on his view that
“[c]able systems are not public property.” Denver Area, 518 U.S. at 827 (Thomas, J., concurring in the
judgment in part and dissenting in part).
But this case is not about a cable distribution
system. No cable company is party to this dispute,
and there is no contention that any cable company is
a state actor. The issues that motivated disagreement in Denver Area are not present here.
Moreover, because Denver Area addressed a facial challenge to Section 10(c), the opinions approach
the cable system as a whole, considering public access and leased access channels in broad strokes. As
we have explained, that sort of analysis is misplaced
here, where the fact-bound state-actor inquiry requires nuanced appreciation of the particular
framework at issue. This case does not turn on any
broad pronouncement of law.
Second, the interest actually at issue here—the
management of the content on Manhattan’s public
access channels—is not “private,” and may not even
be “property.”
Petitioners have not attempted to show that
whatever interest is implicated is a “private” one. A
public access channel exists solely if a state or municipal government chooses to create it. See 47
U.S.C. § 531. If a local government elects to do so, it
then determines who (the government, a nonprofit,
or the cable operator) will operate the channel. See
Pet. 21.

 27
State and local governments control every aspect
of a public access channel: they can create it, destroy
it, operate the channel itself, or delegate its management to some third party on terms that the municipality dictates. There is hardly anything “private” about this interest.
Not only that, but when New York City created
the public access channel via its cable franchises, it
rendered that channel a public forum. Only after so
designating the channel did the City delegate its
administration to petitioner MNN. Even if that delegation can be thought to have effected a property
transfer—a dubious proposition—any property interest was accompanied by the plain condition that the
public access channels in New York City are public
forums. The City has therefore never converted any
private property to a public forum.
Nor do petitioners show how there is a “property”
interest at stake here. Public access channels are
likely a “government program[],” which can also be a
designated public forum. Pleasant Grove City v.
Summum, 555 U.S. 460, 469 (2009). See also id. at
478 (describing a “government program”). This is a
more accurate way to describe the operation of the
relevant laws.
Third, even if public access channels could be
thought of as private property, that does not preclude the City from designating them a public forum.
In Cornelius, the Court held that “private property
dedicated to public use” can be a public forum. 473
U.S. at 801. See also Marsh, 326 U.S. at 505-506;
Hague v. Committee for Indus. Org., 307 U.S. 496,
515 (1939) (Roberts, J., concurring) (“Wherever the
title of streets and parks may rest, they have immemorially been held in trust for the use of the public

 28
and, time out of mind, have been used for purposes of
assembly, communicating thoughts between citizens,
and discussing public questions.”). This Court’s precedents are thus incompatible with any suggestion
that private property can never take on the attributes of a public forum.
And there obviously can be no such blanket rule:
suppose, for example, a government leases private
property and officially designates it a public forum.
Having done so, the municipality cannot rest on the
nominally private ownership of the property as a basis to resist application of the First Amendment.
Moreover, “in the majority of jurisdictions, title to
some of the most traditional of public fora, streets
and sidewalks, remains in private hands.” Denver
Area, 518 U.S. at 792 (Kennedy, J., concurring in
part, concurring in the judgment in part, and dissenting in part).
Here, New York City asserts complete domination over the public access channels—it creates them,
it funds them, it decides who operates them, and it
establishes the terms governing their administration. This is far more extreme an interest than a
mere lease of property.
At bottom, there is no basis to conclude that the
City is incapable of designating its public access
channels as public forums.
C. There is no circuit conflict.
Once petitioners’ caricature of the decision below
is set aside, the claim of a conflict among the circuits
unravels.

 29
1. The decision below does not conflict with
Wilcher v. City of Akron, 498 F.3d 516 (6th Cir.
2007).
In Wilcher, the court addressed whether public
access stations are “a traditional service of local government.” 498 F.3d at 519. This is the test for a “traditional public forum.” See Perry Educ. Ass’n, 460
U.S. at 45-46. Providing public access television is
not, the court of appeals concluded, “a function traditionally reserved to the state.” Wilcher, 498 F.3d at
519.
The conclusion that a public access station is not
a traditional public forum does not conflict with our
argument or the holding below. As we have explained, petitioner MNN operates a public forum because New York City has designated it as such—not
because all public access channels qualify. Wilcher
did not consider whether the public access channel
there was a designated public forum; the court specifically disclaimed addressing whether “the public access channel” is a public forum by means of “government fiat.” 498 F.3d at 522 (quotation omitted).
Nor could Wilcher create a conflict, as the public
access station there had none of the hallmarks of a
designated public forum:
•

No first-come, first-served obligation:
Neither Akron nor Ohio imposed an openaccess requirement, precluding editorial control.9

The underlying documents filed in Wilcher confirm that there
was no first-come, first-served policy. See Dkt. 12-1, at 18-19,
5:05-cv-00866 (N.D. Ohio); Dkt. 12-2, at 3-4; Dkt. 12-5.

9

 30
•

No free access obligation: Akron permitted the operator to charge a fee for airing
videos. 498 F.3d at 518.

•

Operated by cable company: Rather than
the municipality delegating operation of the
public access channel to a specialized nonprofit, the cable company (Time Warner) operated the channel. Ibid.

Against that backdrop, there was no showing that
Akron rendered its public access channel “generally
available to a certain class of speakers.” Arkansas
Educ. Television, 523 U.S. at 679.
In fact, Akron expressly allowed Time Warner to
establish criteria for access to the network; it could
propose and implement its own regulations. Wilcher,
498 F.3d at 518. Rather than allow the public free,
non-discriminatory, first-come, first-served access to
the network, Time Warner could and did establish
policies to limit its use. Ibid.
Wilcher merely rejects the contention that operating a public access channel is always a public function. 498 F.3d at 519-522. We do not disagree: different local decisions drive different results.
2. Nor does Alliance for Community Media v.
FCC, 56 F.3d 105 (D.C. Cir. 1995) (ACM), create a
conflict warranting review.
To begin with, this Court reversed ACM in Denver Area, 518 U.S. at 766. So ACM has no force in
view of this Court’s subsequent decision. Indeed, the
D.C. Circuit has never relied substantively on ACM.
Nor does the holding below conflict with the reasoning of ACM. That case was not a lawsuit against
a public access channel; it considered the role of the

 31
cable franchisee in displaying content on its system.
And, while ACM suggested that there was no state
action at issue (56 F.3d at 112-115), this Court disagreed. Denver Area, 518 U.S. at 737 (plurality). Even
petitioners’ amicus admits that “[s]tate action indisputably was at issue.” Cato Am. Br. 5.
Moreover, ACM’s discussion of whether public
access channels are “public forums” considered
whether they are like those places “traditionally used
for public expression—streets and parks, for instance.” 56 F.3d at 121-123. The court reasoned that
not all public access channels qualify as public forums by the virtue of federal law.
Like Wilcher, that conclusion does not address
the specific issue here. ACM did not have before it—
and thus did not consider—the particulars of any local law establishing a public access channel. It certainly did not decide whether a municipality may, in
circumstances like those here, designate a public access channel as a public forum.10
Nor is there any conflict with the unpublished,
per curiam decision in Glendora v. Sellers, 2003 WL
22890043 (D.C. Cir. 2003). That opinion includes no
analysis whatever, much less any reasoned holding
in conflict with the decision below.11
Petitioners also cite a handful of district court cases. See Pet.
29-30. A conflict with a district court decision does not warrant
this Court’s review; if anything, it indicates the need for percolation. But there is no conflict: petitioners have not identified a
single district court to have addressed a legal framework materially similar to that here yet nonetheless held that the administration of a public access channel is not a public function.
10

Since operating a public forum is the public function establishing state action here, this case does not conflict with Loce v.
11

 32
D. Petitioners misstate the implications of
the holding below.
Petitioners and their amici offer a familiar parade of horribles that they suggest will result from
the decision below. See Pet. 30-34. Two common errors pervade these claims.
First, as we have already explained, petitioners
are wrong to assert that the court of appeals established a per se rule that governs all public access stations. See pp. 13-20, supra. Petitioners’ analysis conflates the “traditional public forum” analysis (which
often does establish bright-line rules) with the “designated public forum” doctrine (which does not). Because the decision below is specific to the particular
“framework” (Pet. App. 13a) that governs New York
City, it has no implications for localities that have
made different choices.
Second, petitioners lose sight of the fundamental
principle that only the government may designate a
non-traditional place as a public forum. That is, for
“a place not traditionally open to assembly and debate,” it is a “public forum” only if “a government intended to designate” it as such. Walker, 135 S. Ct. at
2250 (quotation and alteration omitted). See also Arkansas Educ. Television, 523 U.S. at 677 (“Designated public fora * * * are created by purposeful governmental action.”). A place cannot be designated a
public forum absent intentional government action.
Time Warner Entertainment Advance/NewHouse Partnership,
191 F.3d 256 (2d Cir. 1999). Loce concerned “leased access”
channels, which a cable operator reserves “for commercial use
by unaffiliated programmers.” Id. at 259. Those channels are
not public forums, as they are not available for free public use.
Loce’s finding of no state action is thus entirely consistent with
this case; there is no “indefensible distinction.” Cato Am. Br. 7.

 33
This is why “the quad of a private college” (Pet. 17) is
not a public forum.
1. Petitioners assert that the decision below imposes burdens on public access channels. Pet. 31-32.
But petitioners do not—and cannot—substantiate
the implicit premise that unjustified litigation arises
with any frequency. As the lack of any circuit split or
recurrence of the issue in the courts of appeals confirms, litigation of these issues is infrequent.
In any event, the mere prospect of a frivolous
lawsuit is no reason to foreclose core constitutional
rights. The canard of unjustified settlement pressure
is present in virtually every form of civil litigation.
But district courts are well equipped to expeditiously
resolve frivolous cases—they do so every day. Petitioners merely express the preference shared by any
defendant—they would simply prefer not to have to
answer for their conduct in court. Petitioners’ invocation of attorneys’ fees (Pet. 31) is especially surprising, as fee-shifting is available only to a prevailing
party.
Application of the First Amendment to petitioner
MNN has no substantial effect on its day-to-day operations. A reasonable, viewpoint-neutral rule is allowed as a valid time, manner, and place restriction.
See Thomas v. Chicago Park Dist., 534 U.S. 316, 323
(2002) (“Regulations of the use of a public forum that
ensure the safety and convenience of the people are
not inconsistent with civil liberties but are one of the
means of safeguarding the good order upon which
civil liberties ultimately depend.” (quotation and alterations omitted)). Nothing will preclude petitioner
MNN from scheduling its programming or adopting
any other viewpoint-neutral rule.

 34
The decision below has just one material effect: it
precludes petitioner MNN from silencing speech with
which it substantively disagrees.
The decision below does not affect networks’ liability for other functions, like “provid[ing] technical
training.” CAC Am. Br. 19. “[A]n entity may be a
State actor for some purposes but not for others.”
Caviness v. Horizon Cmty. Learning Ctr., Inc., 590
F.3d 806, 813 (9th Cir. 2010). Petitioner MNN is a
state actor when it selects which programs are aired
because it is then administering a public forum. It is
not a state actor in other circumstances. For this
reason, the decision below does not render petitioner
MNN subject to any broad “collateral consequences.”
Pet. 32.
That said, one aspect of petitioners’ argument is
bizarre. Petitioners feign horror at the notion that
MNN could be subject to “state sunshine” laws. Pet.
32. But petitioner MNN is—clearly and expressly—
subject to a “state sunshine” law. Per New York law,
petitioner MNN “shall maintain a record of the use
of [its] channel[s]”; this record must “include the
names and addresses of all persons using or requesting the use of [its] channel[s]”; and this “record shall
be available for public inspection for a minimum of
two years.” N.Y. Comp. Codes R. & Regs. tit. 16, §
895.4(c)(10) (emphasis added).
New York plainly obligates petitioner MNN to
make its records relating to First Amendment activities available to the public. Petitioners’ argument relating to “state sunshine” laws simply underscores
that this sort of obligation fits hand-in-glove with a
determination by the local government that these
public access channels are public forums.

 35
2. The decision below has no effect on whether
other kinds of media qualify as public forums. See
Pet. 32-34.
Social media is nothing like petitioner MNN. The
government did not create social media services like
Twitter. The government does not impose first-come,
first-served access rules on Twitter, mandate that it
be free of charge, or preclude Twitter from exercising
editorial control. The government certainly has not
designated Twitter a public forum. The decision below thus does not compel any conclusions about the
application of the First Amendment to social media.12
As to public radio stations, petitioners again do
not show that governments have designated them as
public forums. Indeed, petitioners identify no state or
local laws that mandate free, first-come, first-served
access to public radio stations.
Finally, the decision below has no relevance to
Internet service providers. See Cato Am. Br. 15-16.
That is because, as amicus admits, “Congress[] [has]
recogn[ized] that Internet service providers and other online platforms should be able to provide content
or restrict access to certain materials.” Id. at 16 (citIn Knight First Amendment Institute at Columbia University
v. Trump, 302 F. Supp. 3d 541, 568 (S.D.N.Y. 2018), the district
court cited the decision below exactly once—for the generic conclusion, unchallenged by petitioners here, that regulating a
public forum is a public function. That Knight did not consider
the decision below in exploring the contours of the First
Amendment’s applicability to Twitter merely underscores how
the considerations at issue here are differently entirely. And
this case, based on this fact-specific record, is not an appropriate vehicle for shadow adjudication of unrelated litigation.
12

 36
ing 47 U.S.C. § 230(c)). Precisely. The government
has not designed Internet service providers as public
forums.
In any event, if this case ever does prompt a subsequent court of appeals to reach the sort of fanciful
results that petitioners and their amici fear—such as
deeming Twitter, NPR, or an Internet service provider a state actor—the Court can grant review then.
These fairy-tale monsters are no reason for review
here.
CONCLUSION
The Court should deny the petition.
Respectfully submitted.
ROBERT T. PERRY
45 Main Street, Ste. 528
Brooklyn, NY 11201
(212) 219-9410

PAUL W. HUGHES
Counsel of Record
MICHAEL B. KIMBERLY
Mayer Brown LLP
1999 K Street, NW
Washington, DC 20006
(202) 263-3000
phughes@mayerbrown.com

Counsel for Respondents
AUGUST 2018