“I am continuing to monitor the censorship of AMERICAN CITIZENS on social media platforms. This is the United States of America—and we have what’s known as FREEDOM OF SPEECH! We are monitoring and watching, closely!!”
—President Donald J. Trump1
Introduction
On May 28, 2020, President Trump signed an executive order to combat what he perceived as “[o]nline platforms . . . engaging in selective censorship.”2 Issued two days after Twitter’s labeling of his tweets regarding mail-in ballots3 as containing “unsubstantiated claim[s],”4 this order represented a marked reversal from his previous views regarding what he perceived to be overly expansive First Amendment protections.5 The suggestion that this could be a First Amendment issue appeared unfounded, as Justice Kavanaugh had recently written the majority opinion in Manhattan Community Access Corp. v. Halleck,6 a decision that largely foreclosed the possibility of First Amendment claims against platforms such as Twitter. Although the substance of the executive order7 related to § 230(c) of the Communications Decency Act,8 the message the President was sending was clear: First Amendment requirements should apply to content providers, precedent be damned.9
It is a well-established rule that constitutional constraints governing public entities do not extend to private actors10—until they do.11 If this principle seems unclear, it is largely due to the piecemeal jurisprudence that defines the “state action” doctrine.12 This doctrine applies when courts hold that a private actor is subject to constitutional constraints by virtue of the quasi-public role they have willingly accepted.13 In these situations, constitutional protections—and the resulting 42 U.S.C. § 1983 actions—may be available to those who demand relief.14 While questions of what entails a “state action” loom in the face of closely intertwined private and public actors, Halleck simplifies the inquiry15 with an updated definition of the types of private functions that now qualify as state action.16
Under the revised doctrine, constitutional protections are only afforded when private action is of a “traditional, exclusive” public nature.17 This narrowed scope will likely reduce frivolous litigation but will also usher in unwanted side effects.18 Specifically, the Halleck decision failed to account for the increased role that private entities have in the public sphere.19 This uncertain future, coupled with the Court splitting along a partisan 5-4 line—further politicizing the doctrine20—leaves one wondering if it was correctly decided. Justices Kavanaugh and Sotomayor disagreed about the facts of the case and reached very different conclusions about how to apply past precedent in the face of these divergent possibilities.21 What should have been an easy case—at least in the eyes of the district court applying the previous standard22—instead became another step in the Court’s conservative realignment. As Justice Stevens wryly noted in a footnote to Burnham v. Superior Court,23 “[p]erhaps the adage about hard cases making bad law should be revised to cover easy cases.”24
This Case Note argues that under the new standard, situations may arise where public actors can divest themselves of certain activities in order to circumvent constitutional protections traditionally afforded to their conduct. This Case Note proceeds in five parts. Part I summarizes the background and prior caselaw which formed Halleck’s backbone.25 Part II discusses the procedural history of Halleck, leading to the battle before the Supreme Court.26 Part III analyzes the Supreme Court’s decision, including Justice Sotomayor’s scathing dissent.27 Finally, Part IV discusses the implications of the decision, and what can be expected from a Court keen to whittle away at an already weakened doctrine.28
I. Background & Prior Law
Under § 1983, plaintiffs can seek recourse against a non-federal entity when they have been deprived of their civil rights.29 As the Constitution does not apply to private actors, this cause of action is extremely limited and can typically only be used when the deprivation of civil rights has been perpetrated by a public entity.30 This was confirmed in 1883 when the Supreme Court held in United States v. Stanley31United States v. Stanley, 109 U.S. 3 (1883). that there was a “state action” requirement for claims regarding deprivation of civil rights, and that the government had to be involved in the deprivation for a claim to proceed.32 The definition of what exactly constitutes “state action” has evolved throughout the twentieth century, and a series of cases have expanded the doctrine to encompass instances where private entities stepped into the types of roles traditionally taken on by the government.33
A. Early History of the State Action Doctrine
The Supreme Court shaped the state action doctrine with several decisions determining the type of private conduct that may subject a private actor to a civil rights claim.34 Beginning in 1927, the Supreme Court decided a sequence of cases regarding political party primary elections. The first case, Nixon v. Herndon,35 does not directly implicate the doctrine, but lays the groundwork for future cases.36 In Nixon, the Supreme Court held that a Texas law preventing eligible voters from voting in the Texas Democratic Party’s primary on the basis of race was unconstitutional.37 In response, Texas passed a statute allowing political parties to determine who was eligible to vote in their primaries.38 Accordingly, in 1932, the Texas Democratic Party once again found itself in the Supreme Court defending its racist policies.39 The new statute effectively had the same impact as the previous one, but rather than directly authorizing racial discrimination, it passed the power to discriminate to the political parties, which were free to set the requirements for voting in their primaries.40 The Court once again held that this scheme was unlawful, and the Texas Democratic Party had impermissibly discriminated against potential voters when it prevented someone from voting in the primary on the basis of race alone.41
This was, regretfully, not the conclusion of discrimination by the Texas Democratic Party, whose scheme of withholding absentee ballots on the basis of race was upheld in the 1935 decision, Grovey v. Townsend.42 The victory was short-lived; nine years later the Court overturned Grovey and held that a Democratic primary restricting participation based on race was prohibited under the Fifteenth Amendment.43 In the absence of an enabling statute by the Texas legislature, the Court held that racial discrimination was impermissible—even by a private party—when it arose from activities that had traditionally been administered by the state, such as elections.44 The Party had effectively become a state actor by administering the election, and therefore had to comply with all of the constitutional requirements that a public election would face.45 In 1953, the Court held once more that the Fifteenth Amendment applied to a private political party conducting elections that restricted membership based on race.46 Foreshadowing the future narrowing of the doctrine, Justice Minton dissented as he did not believe the actions of a private political party constituted state action.47
In the 1946 Marsh v. Alabama48Marsh v. Alabama, 326 U.S. 501, 505–09 (1946). decision, the Court explored the concept of state action as it related to the freedom of speech in an artificial public square. In Marsh, the plaintiff, Grace Marsh, handed out religious materials in what appeared to a public area of town.49 She was subsequently arrested per an Alabama trespassing law.50 Yet, the town was owned entirely by a corporation, and none of the land was a public space.51 The Court held that because the land was open to the public, and was in no way restricted by the company owning the property, it had effectively been transformed into a public square.52 Accordingly, the First and Fourteenth Amendments would apply to the company’s conduct, which abridged Marsh’s speech.53
B. Justice Rehnquist Turns the Tide
In 1974, the Supreme Court decided Jackson v. Metropolitan Edison Co.,54 which became the controlling case governing state action claims against a private actor. The controversy arose when a privately-owned utility company—chartered by the state of Pennsylvania—turned off a customer’s power due to continued nonpayment.55 The plaintiff, Catherine Jackson, sued the power company on the theory that by turning off power without a hearing, it had deprived her of the rights guaranteed under the Due Process Clause of the Fourteenth Amendment.56 Then-Associate Justice Rehnquist wrote in a 6-3 decision that the State of Pennsylvania was not connected to the respondent’s actions to the extent that disabling one’s utilities without a pre-deprivation hearing would be a violation of the Fourteenth Amendment.57
Justice Douglas’s dissent in Jackson warned of a future where a public entity could act “in cahoots” with a private group, and thus allow that private group to “perpetrate an injury” with limited recourse, at least as far as the Constitution was concerned.58 Douglas believed that the majority opinion would pave the way for the government to coordinate with a private entity in order to circumvent constitutional protections.59 Justice Marshall wrote a separate dissent, writing that the electric company had become too closely intertwined with the state for its activities to not constitute state action.60 Therefore, the majority’s decision in Jackson represented a serious departure from previous state action jurisprudence.61
C. Justice Rehnquist Changes the Game
Two years later, Justice Rehnquist applied his logic from the Jackson decision to narrow the state action doctrine once more.62 In Flagg Bros., the Court held that a warehouse threatening to sell furniture—taken during an eviction—due to nonpayment (pursuant to New York law) was not state action.63 The case arose when the plaintiff, Shirley Brooks, was evicted from her apartment in Mount Vernon, New York, and her furniture was taken to a warehouse owned by Flagg Brothers, Inc. under the direction of the sheriff.64 Based on Brooks’s nonpayment, Flagg Brothers threatened to sell Brooks’s furniture to recoup their losses.65 The Second Circuit held that executing a lien had traditionally been a function of the sheriff, and therefore, the state action requirement was met.66 On appeal, Justice Rehnquist disagreed, and reversed the Second Circuit’s decision,67 finding that very few actions were exclusively reserved to the government.68 Despite the warehouse effectively stepping in for the government to enforce the lien, Justice Rehnquist once again narrowed the state action doctrine.69
Justice Marshall’s dissent in Flagg Bros. presents a very different view of the case before the Court.70 Invoking Jackson, Justice Marshall addressed the difficulty in determining what constitutes a power “traditionally exclusively reserved to the State.”71 Justice Marshall argued in favor of the view endorsed by the Second Circuit, which held that the execution of a lien has traditionally and exclusively been performed by a sheriff.72 When Flagg Brothers threatened to execute the lien, they were acting in place of the sheriff.73 Therefore, the state action requirement was met.
D. The Court Remains Undecided About Public Access Channels
One of the first nationwide attempts to mandate the creation of public access channels came from FCC rulemaking, which required television providers—such as cable companies—with more than 3,500 subscribers to provide a public access channel.74 When a cable provider challenged the FCC’s authority to promulgate such a rule, the Supreme Court initially upheld the regulation as a proper use of the agency’s power.75 Several years later, a second decision featuring the same parties largely overturned the first.76 Writing for the majority, Justice White held that although the FCC had the power to establish this regulation under the Communications Act of 1934,77 it could not regulate cable companies as common carriers.78 Therefore, the rule requiring carriers to broadcast public access channels was struck down.79 In response, Congress amended the Communications Act with the new provisions authorizing states to direct cable franchisees to create public access channels.80 The providers of these channels would have no editorial control over the content, so long as the material being broadcast was not obscene.81
In 1996, the Supreme Court addressed whether a public access channel constituted a public forum in Denver Area Educational Telecommunications Consortium, Inc. v. FCC.82Denver Area Educ. Telecomms. Consortium, Inc. v. FCC, 518 U.S. 727, 737-42 (1996). In Denver Area, a plurality of the court led by Justice Breyer held that a cable provider censoring certain content it deemed inappropriate was not state action.83 The Court fell short of reversing the D.C. Circuit’s decision and held that public access channels were public forums.84 In his concurrence, Justice Kennedy strongly disagreed with the majority’s decision not to address the matter of state action.85 In his—and Justice Ginsburg’s—view, a public access channel is a public forum, and therefore meets the state action requirement required for the suit to proceed.86
II. Facts & Procedural History of Halleck
A. Background
Under New York regulations, cable operators of a certain size must provide a public access channel.87 As outlined by the Cable Act, these public access channels are prohibited from exercising any editorial control over the content, apart from the same limited exceptions surrounding obscene (and other unprotected) speech.88 After entering into a franchise agreement with Time Warner, the Manhattan borough president assigned control of the public access channel to Manhattan Neighborhood Network (MNN), operated by Manhattan Community Access Corp.89 According to the New York regulation, material must be broadcast on a first-come, first-served basis, and the channel could only exercise extremely limited editorial control to prohibit unprotected speech.90
B. Bad Blood Boils, “Barrio” Beef Brings Ban
Although the station was designated for use by anyone in the community, problematic figures soon emerged, and tensions grew between MNN and community activists DeeDee Halleck and Jesus Papoleto Melendez.91 For instance, in 2011 Halleck was prevented from attending a board meeting when she was “locked out” by the staff.92 In 2012, a separate argument led to the MNN station director throwing papers at Melendez.93 After not being invited to a gala held for the station’s donors at a new building close to where Melendez lived, the pair produced a film critical of the station, titled: “The 1% Visits El Barrio; Whose Community?”94 Despite pushback from the station to prevent it from being broadcast, the film was aired on MNN several months later.95 As the film was a direct attack on the station and its employees, Halleck received a temporary suspension, and Melendez received a lifetime suspension from airing any further content on the station.96 Even after Halleck’s ban was lifted, she was unable to re-air the film—despite the first-come, first-served policy—owing to Melendez’s lifetime ban.97
Halleck and Melendez sued both New York City and MNN in federal court, alleging that MNN had violated their First Amendment rights when they were prevented from both airing their film and utilizing the station’s resources.98 The district court dismissed the First Amendment claim against the City, as the City itself was too far removed from the process of banning the content to be liable.99 This would typically end the suit due to the state action requirement of a First Amendment claim, as MNN is a private entity.100 However, the plaintiffs alleged that MNN was effectively a state actor, as the public access channel was a public forum.101 The court discussed several prior cases,102 and ultimately rejected this argument, concluding that MNN was not a state actor.103 Accordingly, the First Amendment claims the plaintiffs brought against MNN were not actionable.104
C. The Second Circuit Disagrees
On appeal, the Second Circuit reversed the district court’s dismissal in favor of MNN.105 Citing heavily from Denver Area, the Second Circuit wrote that a public access channel was a public forum, and remanded the case for further proceedings.106 Specifically, they adopted Justice Kennedy’s concurrence in Denver Area that a public access channel is effectively the electronic equivalent of a public square.107 Therefore, it would constitute a public forum when applying the state action doctrine.108 The court noted that lower courts were split as to whether a public access channel was a public forum, and that the D.C. Circuit had already held that it was not.109 Although the D.C. Circuit case had been partially overturned in Denver Area, Justice Breyer declined to comment on whether a public access channel was a public forum.110 Therefore, this portion of the ruling was intact at the time of the Second Circuit decision. The Second Circuit, however, agreed with the district court that the City was too far removed from the action, and therefore, they upheld the dismissal in favor of New York City.111
Judge Jacobs concurred with the judgment that the City was not liable for the plaintiffs’ claims but dissented with regards to MNN.112 He specifically disagreed with the majority’s view that a public access channel is a public forum.113 As such, MNN could not be a state actor.114 He also speculated that the Denver Area Court would have likely not found a public access channel to be a public forum had the majority chosen to discuss the issue.115 Noting that only Justice Ginsburg had joined Justice Kennedy’s concurrence, he reasoned that it was not appropriate for the Second Circuit to endorse the view taken by a minority of the Supreme Court when it was likely that the full Court would not have agreed.116 This concurrence was an interesting signal that future appeals might be decided on traditionally partisan lines, as the judges in favor of state action were appointed by democrats, whereas Judge Jacobs was appointed by George H.W. Bush.117
D. A Newly Elevated Justice Kavanaugh Comes to MNN’s Rescue
The Second Circuit’s decision widening the state action doctrine triggered a split between the Second and D.C. Circuits, as the D.C. Circuit’s previous holding that public access channels did not qualify as state actors was not reversed by the Denver Area Court.118 Despite being decided in 1992, the Court’s composition in Denver Area119Denver Area, 518 U.S. at 727–31. offered limited, though valuable, insight on how the Court might decide Halleck, should certiorari have been granted in early 2018. Of the Denver Area Court Justices still on the bench in 2018, Justices Kennedy and Ginsburg were strongly in favor of a public access channel being a public forum, while Justice Thomas was strongly opposed.120 Justice Breyer was undecided on the matter in Denver Area, as the majority declined to comment on the D.C. Circuit’s determination.121 It appears from the votes for Justice Thomas’s dissent opposing a finding of state action—which was joined by Chief Justice Rehnquist and Justice Scalia—that the notion that a public access channel is not a public forum subject to First Amendment protections is generally in line with conservative jurisprudence, which strongly favors deregulation.122 As Justice Kennedy felt otherwise, an early case similar to Halleck might have been decided 5-4 in favor of the plaintiffs, with Kennedy acting as the swing vote.123 While this might have made for an interesting possibility (that is, yet another “conservative” case where Kennedy breaks from his party’s traditional views), any potential hope of a victory via this path was lost on June 27, 2018, when Justice Kennedy announced his retirement.124 At the first Supreme Court conference following Justice Kavanaugh’s confirmation, the Supreme Court granted certiorari to MNN’s appeal.125
E. A Skeptical Justice Breyer Makes the Case About Hot Dogs
Towards the start of the arguments Justice Breyer was quick to become involved in questioning, though his inquiry seemed tangential at times. For instance, he asked a series of questions regarding the editorial control a station may exercise over programing related to hot dogs.126 During these arguments, MNN argued that although the station’s content is typically broadcast on a first-come, first-served basis, the channel does exercise some editorial discretion when required.127 For instance, it reserves the right to adjust the programing schedule based on both the suitability of the content in a specific time slot and the relevance of the content as it relates to other programming.128 This is contrary to the New York State’s authorizing regulation, under which a station may exercise almost no editorial control over the content.129
During her line of questioning, Justice Sotomayor distinguished what she perceived the facts of the case to be with the cases petitioners relied on in support of their proposition.130 Telegraphing her dissent, she questioned whether any past cases were relevant.131 In her view, past cases should not apply, as the state seemed to have specifically designated the channel as a public forum, and therefore precedent did not matter, as MNN had agreed to those terms.132 Newly elevated Justice Kavanaugh appeared to take a dim view of the idea that MNN was a public forum. He interrupted the respondent’s attorney to note that in order for there to be state action, the activity must be something that has “traditionally[,] exclusively been a public function.”133 He pushed back on the idea that operating a channel would entail a public function and likened it more to a utility.134 Accordingly, under the logic presented by Justice Kavanaugh, the station would not pass the public function test, despite being regulated under the New York statue.135
The respondents also confirmed that the basis for it being a public forum is that it must accept content on a first-come, first-served basis; if the channel had discretion, then it would not be a public forum.136 Specifically, a similar authorizing statute in California does not have the same requirement,137 and therefore, it would not be a public forum under this test.138 By the conclusion of oral arguments, some Justices, such as Kavanagh and Sotomayor, had made their views and votes clear.139 Despite being so vocal during the arguments, Justice Breyer was far more inscrutable.140
III. Analysis of Halleck
A. The First Amendment Applies to Only Government Action, Not Private Entities
In a 5-4 decision authored by Justice Kavanaugh (joined by Chief Justice Roberts, and Justices Thomas, Alito, and Gorsuch), the Court held that MNN—and by extension, any public access channel—is not a state actor simply because it broadcasts content to the public.141 At the outset of the majority opinion, Justice Kavanaugh invoked the longstanding precedent that constitutional protections only apply to actions taken by government actors, rather than private individuals.142 Borrowing heavily from then-Justice Rehnquist’s language in Jackson,143 the Court announced a bright-line test to define when private conduct qualifies as state action: the new inquiry asks whether the activity in question constitutes “a traditional, exclusive public function.”144 This exact phrase, punctuation and all, appears eleven times in the majority opinion and serves as a clear indication that this is the new test lower courts should use to examine state action.145 Although Jackson used similar language, such as “powers traditionally exclusively reserved to the State,”146 this is the first time the exact phrase “traditional, exclusive public function” has been used.147 Justice Kavanaugh’s adherence and further development of Rehnquist’s opinion in Jackson sends a clear message of his reverence for the late Chief Justice’s jurisprudence.148 Clearer still is his message that as the role of government continues to evolve, indications of state action will remain stagnant.149
B. No State Action, as Public Access Channels Are Not a “Traditional, Exclusive Public Function”
Justice Kavanaugh next discussed three situations where state action by a private actor can be found.150 The first arises when a public actor meets the aforementioned “traditional, exclusive public function” inquiry.151 The second arises “when the government compels [a] private entity to take a particular action.”152 The third arises “when the “government acts jointly with the private entity.”153 Because the latter two types of activity were not alleged by the plaintiffs, the only possible option that could be met was the first—MNN could be liable for a § 1983 action under the theory that it had taken on a function traditionally and exclusively carried out by the government.154 Justice Kavanaugh concluded that because public access channels are neither traditionally nor exclusively a government function, there is no merit to the plaintiff’s claim, and MNN could not be liable for a deprivation of the plaintiff’s civil rights.155
Furthermore, MNN’s establishment of a public forum was not enough to satisfy the requirements of state action.156 The majority noted that although providing a public forum is traditionally a government function, it is not exclusive to public entities.157 There are many situations where a private actor may create a public forum—such as a comedy club hosting an open mic night, or a grocery store hanging a bulletin board—but may still be able to restrict the content as it sees fit.158 The majority warned that should these examples constitute state action, private property owners could be subject to unlimited First Amendment liability.159 Although New York City may have authorized the creation of the station, this would be no different than if the City had simply licensed it as part of a regulatory scheme.160 Further, the Court previously held that a regulatory scheme does not constitute state action.161 If the Court overruled past precedent to endorse the view that merely complying with licensing constituted state action, administrability problems could abound.162 For instance, private actors restricting the content of a bulletin board would constitute a deprivation of civil rights.163 The majority concluded that because the facts so closely aligned with past cases implicating licensing, the Court should adhere to the Jackson precedent, and not break any new ground in expanding the doctrine.164 Although remedies under state law may remain available to the plaintiffs, there was no First Amendment violation.165
C. Justice Sotomayor Presents an Alternative View Supported by Alternative Facts
From the first line of her dissent, Justice Sotomayor proclaimed that she viewed the facts of the case to be different than those presented by the majority.166 She believed that the facts showed that the public function test was satisfied, and as such, MNN should have been treated as a public forum subject to First Amendment protections.167 The dissent presented two arguments regarding why the First Amendment should have applied to MNN’s conduct.168 First, in mandating the creation of a public access channel, the government had effectively created an easement.169 This retained property right ensured that a channel such as MNN should be classified as a public forum.170 Second, New York could not avoid constitutional protections simply by contracting the administration of a public forum to a private company.171
D. A Property Interest Was Created and Retained by New York City
The first argument is that an electronic property interest was retained by New York City, which ensured that the public access channel constituted a public forum.172 Comparing this interest to more tangible property interests, Justice Sotomayor noted that this would be no different than if New York City had licensed a private company to place a billboard, but mandated what the content of that billboard would be.173 New York State law gave the City the right to bargain with the company to operate a station under the terms specified in the contract, and these terms ensured that the City retained an implied property interest which could make the station liable.174 Justice Sotomayor also noted that under this policy, the government would not have a property interest in all public access channels—only channels where the City had specifically bargained for these rights under an agreement with a cable company.175 Accordingly, New York City had the exclusive right to create a public access channel, it retained this property interest when it authorized the channel, and therefore, the channel was a public forum.176 This is supported by the State’s mandate that all content be broadcasted on a first-come, first-served basis.177
In Part III of the majority opinion, Justice Kavanaugh addressed the dissent directly and held that New York City had no property interest in the public access channels.178 He considered the City to be essentially a middleman between MNN and Time Warner—both private companies—and wrote that because the agreement between Time Warner and New York City never addressed a property interest, none was present.179 He did note that the property interest argument may be possible depending on state law, or the specific structure of a deal, and is not specifically foreclosed by the opinion.180
E. New York City’s First Amendment Obligations Transferred When It Delegated the Work to a Private Entity
Justice Sotomayor’s second argument considered that a public access channel run directly by New York City would unquestionably be a public forum and that the City “cannot evade the First Amendment” by assigning the administration of a public forum to a private entity.181 She cited West v. Atkins,182 where a unanimous Court held that because North Carolina was required to provide prisoners with medical care, failure to properly treat a prisoner—even by an outside doctor—constituted state action.183 Following this logic, the City had a constitutional obligation to protect free speech, and this obligation did not extinguish because the City was no longer the administrator of the station.184 In Justice Sotomayor’s view, the protection had been delegated to the station through the contract with the City.185 Therefore, the station had a duty to comply with the First Amendment and ensure the public could use the resources guaranteed by the City when it authorized the creation of the station.186 She disagreed with the majority that MNN had simply entered the marketplace and was subject to regulations (rather than obligations) of the City, which would not constitute state action per Jackson.187 Rather, MNN was offered a specific job, which carried certain requirements—when MNN willingly entered into a contract with the City,188 MNN had stepped into the City’s shoes so long as it used the power delegated to it.189 Given her view that the facts presented by the majority were not accurate, Justice Sotomayor would have found in favor of Melendez and Halleck.190
F. A Narrow Decision
The facts of Halleck—at least those presented as true by the majority191—indicate that this should have been a relatively easy decision.192 The categorization of a public access channel was still an open question from Denver Area, but the general precedent for what constituted state action had been defined by previous cases.193 In a decision Justice Kavanaugh effectively labeled as narrow, the Court provided a clear answer to Denver Area’s unresolved question.194 Yet, per Justice Sotomayor’s dissent, this is not a narrow decision, but instead a departure from previous cases.195
The facts of Halleck made it an easy case for the Court to reshape the state action doctrine: the plaintiffs were banned because their offensive conduct had made them toxic to a channel that was designed for community use.196 It is difficult to argue that their belligerent actions warranted anything less than a ban from airing a highly critical documentary or any other inflammatory content.197 And yet, if the plaintiffs were protected by the First Amendment, MNN would have no choice but to put up with their conduct.
Controversial speech, no matter how outrageous, is protected.198 The view endorsed by the dissent is in line with this—although MNN may not have supported Halleck and Melendez’s programming, they were compelled to broadcast the film given their position as administrators.199 The majority avoided this thorny issue by adopting the view that a public access channel is more like a grocery store bulletin board than a private election.200 Just as nobody would question a grocery store’s ability to police content on their property, so should the channel have the right to prevent problematic users from taking advantage of the community service it provides.201
G. Justice Kavanaugh Makes His Mark
The opinion largely synthesizes the sometimes wavering history of the state action doctrine into the easy to remember magic words Justice Kavanaugh continually repeated.202 His strong adherence to past precedent resulted in an extremely compelling opinion, especially when viewed separately from the dissent.203 Although Justice Kavanaugh’s “traditional, exclusive” language is a new addition, he does not appear, at first glance, to have rewritten the doctrine in a meaningful way.204 After all, previous state action claims could only arise under very limited situations, many of which were addressed in Halleck.205 In dismissing the initial suit, the district court found that this was close enough to Denver Area to warrant dismissal.206 Justice Kavanaugh perhaps unnecessarily oversimplified the analysis, and his willingness to distill a complicated doctrine into a simple phrase now ensures that it will only cover a limited number of functions—though this seems to be by design.207 The majority’s repeated reminder of the importance of tradition208 represents a quasi-originalist line of thinking that appears to foreclose the state action doctrine’s applicability to functions that a public entity may adopt moving forward.
One of the interesting aspects of this case is the stark contrast between the majority opinion and the dissent—not just as a matter of law, but as it pertains to the facts of the case before the Court.209 The majority’s willingness to set aside facts that would have worked in the plaintiff’s favor210 seems to indicate just how keen Justice Kavanaugh was to change the law and announce a new test of his own. A final factor that likely played a role in the makeup of the majority’s composition was Justice Kavanaugh’s uncited paraphrase of Dennis Prager towards the conclusion of the decision.211 Both the Denver Area decision and the line of questioning Justice Breyer adopted during oral arguments indicate that he was undecided as to whether the creation of a public access channel constituted state action.212 The majority may have been able to bring more votes to their side had Justice Kavanaugh not included such overtly pro-federalist society language favoring a limited government.213 Any additional vote from the traditionally left-leaning justices was entirely unnecessary, however, as a 5-4 decision on partisan lines is no less binding than any other majority.
IV. Argument
A. The Future of the State Action Doctrine
In the short time since it was decided, Halleck has already been cited in two high-profile cases protecting Google from § 1983 actions brought against them—one from Tulsi Gabbard and the other from Halleck-influencer Dennis Prager.214 Both cases paint Halleck as the definitive decision on state action, yet neither required the rule established in Halleck to reach its conclusion.215 Under pre-Halleck Ninth Circuit precedent, an internet platform is not transformed into a state actor by simply hosting speech.216 A court relying on previous decisions would likely have reached the same result in either of these cases, without needing to rely on the narrowed doctrine.217
A recent Leading Case from the Harvard Law Review suggests the possibility of a property interest as being an important aspect of the decision.218 Although Justice Kavanaugh disagreed with Justice Sotomayor that a property interest was retained by New York City, he did not foreclose this from being an indication of state action in future circumstances.219 Should a municipality wish to create a situation wherein a public access channel must comply with the requirements of the First Amendment, it could ensure that the authorization or contract includes explicit reference to any property interest that may be retained.220 While this interpretation may be possible, it appears more likely that the mention of property interests was a platitude by the majority to not completely ignore Justice Sotomayor’s alarm.221 This outcome would almost certainly not be viable as it is unlikely that a private television station would be interested in purposefully opening themselves up to § 1983 suits if they accidentally censored content.
B. A Narrow Decision?
Justice Kavanaugh’s “traditional, exclusive public function”222 test simplifies a previously complex state action inquiry and will likely reduce potentially frivolous litigation against private entities. Yet this advantage comes at a steep price—although Justice Kavanaugh is careful to note how narrow his opinion is, Halleck’s impact on public administration cannot be understated, as the decision will shape the way public actors structure future deals.223 Armed with a handbook on how to avoid litigation, public actors can now take advantage of the decision to circumvent constitutional protections.224 Thanks to Halleck, Justice Douglas’s fear of a government and a private entity acting “in cahoots” is more plausible than ever.225 After this decision, a government entity could contract out work in fields that are not traditional and exclusive public functions to avoid facing repercussions for actions that may not comply with constitutional requirements.226 The next major case that involves state action will likely build on this and might implicate rights or services beyond a local TV station. Consider the increasingly popular concept of municipal broadband.227 If a state actor had authorized a private company to administer a public broadband network beyond a mere licensing scheme, § 1983 actions might have been possible under the Jackson framework.228 However, under Halleck, this remedy would no longer be available as the administration of municipal broadband is neither a traditional nor exclusive function of the government.229 Accordingly, a city could (for instance) authorize a municipal broadband network and outsource the administration of the network to a third party, which would have carte blanche to censor content as it saw fit.
This could be avoided had the Court adopted Justice Sotomayor’s view, wherein New York City’s involvement in creating the channel was enough to constitute state action, regardless of how traditional the function implicated was.230 She anticipated a future where a government entity would be able to contract out certain functions to escape liability or navigate around certain constitutional requirements, and crafted a preemptive response to combat this situation.231 If Justice Kennedy had remained on the Court, Halleck may have been decided differently,232 and fears of a future where public actors can contract around constitutional violations would be unfounded.233
When the case was first taken up, there was apprehension that a ruling in favor of Halleck and Melendez could mean that internet platforms and social media networks would be unable to censor any content on their platforms, as they would be creating electronic public squares.234 Nevertheless, Twitter’s decision to make an editorial comment regarding the President’s remarks on mail-in ballots would likely not have constituted a violation under Justice Sotomayor’s framework,235 as Twitter has not contracted with the government to run its forum, and there is no retained property right. In this instance, Twitter would be properly categorized as being akin to a grocery store bulletin board; a classification that is not appropriate (at least in Justice Sotomayor’s view) for a public access channel chartered by the city.236
C. State Action for Thee, Not for Me
During his tenure, President Trump has faced a great deal of litigation.237 One such case arose from the President blocking users with opposing viewpoints on Twitter, ensuring that neither would see each other’s tweets and responses, at least when logged in.238 The district court in Knight First Amendment Institute at Columbia University v. Trump held that by blocking the plaintiffs, the President had infringed their First Amendment rights.239 A three-judge panel on the Second Circuit affirmed the decision,240 and en banc review was denied.241
On August 20, 2020, Trump petitioned the Supreme Court for certiorari.242 In his petition, he invoked Halleck to support the argument that he is not a state actor when using his personal Twitter account.243 His tweets, however, seem to suggest a belief that Twitter is violating the First Amendment when they flag his tweets as unsubstantiated.244 This leads to the apparent suggestion—at least when comparing the petition with Trump’s tweets—that the President is not a state actor, but Twitter is. The Court has yet to reach a decision on the petition, leaving the future of the Knight First Amendment Institute’s victory at the Second Circuit, and the scope of Halleck, unwritten.
Conclusion
Although Justice Kavanaugh’s opinion is well reasoned and grounded in strong precedent, it dangerously lays the groundwork for future decisions by drawing a clear line on what constitutes state action. The decision is especially problematic considering the majority and dissent’s disagreement on the facts surrounding the case.245 Justice Kavanaugh further widens the gulf by glossing over the legitimate concerns presented by Justice Sotomayor.246 The overly narrow rule appears to allow for situations where a public entity can contract with private parties to purposefully circumvent constitutional protections that would ordinarily apply.247 Justice Sotomayor makes a compelling case for MNN to be considered a state actor, but her dissent would expand the liability a private entity could face for civil rights violations in the course of ordinary business, which could have a chilling effect on businesses.248 The application of both the majority and dissent present serious issues, and there was likely a more sustainable opinion that could have been written somewhere in the middle. Given his invocation of Conservative aphorisms,249 however, it appears that Justice Kavanaugh perhaps cared less about striking the consensus the Court reached in Denver Area, and was instead looking to make his mark on the judiciary and build on the legacy of Chief Justice Rehnquist.250 What comes next is anybody’s guess—Rehnquist used his own words from Jackson as a sword to narrow the doctrine once more in Flagg Bros.251 If Justice Kavanaugh follows the playbook of his “first judicial hero,”252 it stands to reason that he might use the logic of Halleck to issue a new decision with broader implications, which could lead to a further reduction in the remedies available to those who have been wronged.