US Supreme Court clarifies - or does it?

Today, the US Supreme Court issued its opinion in Manhattan Community Access Corp. v. Halleck, Cause No. 17-1702. It promised some clarity on an issue that has left city attorneys in a quandary.

First, the issue. A city-run bus system is approached by an advertising company for a contract to place ads in and on the buses. The City, when it places advertising on the buses, is constrained by the First Amendment in being "judicious" about its advertising. The advertising company argues that it, as a private entity, is not constrained by the First Amendment. The City is wary of avoiding its constitutional requirements this easily.

So, the Supreme Court weighs in. In Halleck, the Manhattan Neighborhood Network is a corporation formed for the purpose of running the public access channels of the cable system. Halleck and her partner produced a piece that was critical of MNN, and were later banned from the system. Halleck and her partner sued MNN, claiming their First Amendment rights were violated.

The Supreme Court, in a 5-4 decision, found for MNN. It held that MNN is a private actor not constrained by the First Amendment. It rejected the respondents' arguments that MNN had been clothed with the governmental responsibility of running the public access network.

So does this mean that a city bus operator can avoid First Amendment requirements by contracting away this responsibility? Perhaps not. One of the final points made by the majority was a rejection of the argument that the public access channel was "publicly-owned." The majority held that the Cable Company or MNN owned the public access channel, not the City. If this were not the case, "[d]epending on the circumstances, the First Amendment might then constrain the local government's operation of the public access channels." But the city will still own the buses, so that case is still up in the air after all.

The Supreme Court opinion can be found here.

https://www.supremecourt.gov/opinions/18pdf/17-1702_h315.pdf