“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. 

Trump-appointed Supreme Court Justice Brett Kavanaugh wrote a 5-4 June decision, joined by fellow Trump-appointee Justice Neil Gorsuch, in Manhattan Community Access Corp. v. Halleck that ruled that two producers could be banned from Manhattan cable TV public access channels because they produced a film criticizing the company that runs the channels. Despite a state law provision that requires public access to such channels “on a nondiscriminatory basis,” the majority ruled that the First Amendment did not apply at all. Justice Sonia Sotomayor and the Supreme Court’s other moderate justices vigorously dissented.

Under New York state law, a municipality can grant a franchise to a cable TV company only if it agrees to set aside one or more public access channels that are available to all on a “first-come first-serve nondiscriminatory basis.” Whether the channels are run by the municipality directly or by a company it chooses, the operator is forbidden from “exercis[ing] any editorial control” over them. In Manhattan, the government chose Manhattan Community Access Corporation (MNN) to run the public access channels.

DeeDee Halleck and Jesus Papoleto Melendez produced a film that was critical of MNN for neglecting the East Harlem area. After it aired on public access cable, MNN suspended both Halleck and Melendez from any further access to public access cable based on the views expressed in the film. Halleck and Melendez sued, contending that MNN had violated their First Amendment rights. Although a district court dismissed the complaint, it was reinstated by the Second Circuit Court of Appeals, which ruled, in accordance with a prior opinion by Justice Kennedy, that the public access channels were public forums and that the First Amendment applied to MNN’s censorship.

But in a 5-4 opinion by Justice Kavanaugh, who replaced Justice Kennedy, the Supreme Court reversed. The majority claimed that MNN was a “private entity” that opened public access channels as a forum for speech, and that it could regulate that speech as it chose and that the First Amendment did not apply.

Justice Sotomayor and the other moderate justices strongly disagreed. The case was not about a private property owner that opened up some property to speech, she explained, but instead about an entity that “stepped into the city’s shoes” to “administer a constitutional public forum.” As she further pointed out, the First Amendment requirements for public forums and the state law forbidding censorship “did not evaporate” when the city “delegated the administration of that forum to a private entity.”

Although Kavanaugh stated that the majority’s decision was a narrow one, Sotomayor concluded, “that does not make it any less misguided.” She warned that it is “crucial” that the Court “not continue to ignore the reality,” as recognized by the Court in previous decisions, that “private actors who have been delegated constitutional responsibilities” as in this case must be “accountable to the Constitution’s demands.”