we'll hear argument this morning in case seventeen seventeen zero two the manhattan community access corporation versus how mr dilute mr chief justice inmate please the court carefully to hear institute this court state action cases is necessary in order to preserve the lines between government action and private conduct the challenge conduct the purpose of the task is to determine whether it is whether private action falls into the very rare exception of conduct that is fairly attributable to the state and is not a state actor under any of this court state action test and its conduct is therefore not fairly attributable to the state i mean it is a private nonprofit company and its board is not controlled by the city of new york the challenge conduct here was not compelled or coerced by the city of new  york there is no allegations that eminent acted jointly with the city of new york with regard to the challenge conduct an eminent does not perform a function that has traditionally and exclusively been carried out by the city of new york  and gauged by the city it to administer a scheme that was determined by state and city law that is to forward access on a first come first serve policy is first come first served and i'm right on that arrangement it has no independent decision making authority respectfully justice ginsburg that's not quite correct the grant agreement under which emma and operates it's a great agreement between the cable operator which was originally time warner and is now charging charter that agreement actually does grant us the ability to curate content it also grants us the ability to create our own content so the distinction that my friend has made about about putting emma down on one side of the spectrum is a party that has no discretion and other community access organisations on the other hand that do exercise discretion use is not correct i'm sorry it just means it's a mix actor meaning you can hear it has its own speech government often has its own speech so that it can create speech i don't think means anything similarly time place regulations that that anybody can do that of course whether it's the government or a private actor with respect to property so the question i think is does it have discretion with respect to the content and its viewpoint neutrality on what the state is controlling which is the placement rights on these cable and m and n does have the power only because it's the agent directly of the state the state has the relationship with time warner and tells them time warner most deal with and then  that's not quite true just a sort of why are the the agreement between time warner the cable operator and emmet and is an independent agreement that is negotiated between that those two parties the city is not a party to that grant agreement that grant agreement in turn gets approved by the public service commission in new york so the grant agreement gives us much broader rights to curate content to decide to put shows together on one of our channels or a different channel so the scheduling is not purely mechanical it is a pre take one video tape or cd from the street and put it in the machine and then put the next one is missing a little bit of facts that you've been talking about in terms of your grant agreement which was introduced by the by respondents makes clear that we have that right to curate in there and in response brief to the court they said that we did not have that right that we were bound soley by the first come oh look your brief the p s c regulations require that content on public access channels be quote noncommercial end quote and that access must be quote on a first come first agreement itself the grant agreement gives us broader discretion that of the grant agreement which is between the cable operator and then gives us the discretion to group channels group shows together put them on one particular channel and that's again approved by the by the voting putting shows on channel fourteen rather than channel sixteen wouldn't seem like relevant discretion would it i mean what's broadcast out whether it's fourteen or sixteen is absolutely determined by this rule at least that's how i read your brief to set it that's true that we do not pre they come into the door we put them on the air so we do that around there's another question then that i have a child can't get out of the brief there are thirteen directors right correct and two of them are chosen by the government correct how are the other thirteen chose the other the other eleven or chose eleven you know i think believe there's a nominating committee on the board that nominates people from media from an entertainment from and who creates the nominating committee the board it's a subcommittee of the board so that but then that's your the the it's a self perpetuating board the eleven other members governmental people or have no governmental connection have no governmental connection and even the two that are nominated by the board are not necessarily government related why didn't you put that in the brief nominate pardoning did you put that in your  if you had the obligation that you think you don't have another words just assume for the moment that you did have to follow a first come first serve rule and that you didn't have the discretion that you think you have over programming what would then the right answer be right then the right answer justice kagan would be that the respondents or any other producers that have a complaint with us go to the public service commission which has a specific cause of action that one can bring  going back to justice ginsburg's question on the assumption that you don't have discretion that you have to follow a first come first serve rule and i think that justice ginsburg asked why doesn't that essentially make you you've been designated by the city to administer a public forum well i think that i think that it just it doesn't do that because there is a long line of cases from this court that said the regulation of a private entity is not enough to bring it w the ambit of state action so we so you would say it's because you're private we are private so but but i think the city thinks that it has a property right here it has you know it's a property right that comes from a contract where the city has reserved for itself the ability to decide what programming should be it's so the issue of whether there is a property right is certainly something that was not addressed  below it would certainly be a different type of property rights than any one that i've seen there's the there was a discussion in this court's denver area case about whether or not there was a some kind of easement created in these public and in the public in the talk about about it as a contract right but but these cable operators would not be able to function unless the government had given them these public rights of way and in exchange for giving them these public rights of way the government says well we're going to take certain stations and we're going to decide what the programming for those stations will be and you know given that the whole thing doesn't get off the ground unless the government gives the cable operators the rights of way and that it exacts a quid pro quo for that why isn't there call it what you want a property rights coming from a contract or an easement or whatever well specifically the kagan what the contracts don't do is that they don't give the city the right to choose what content is going to be on the public access channels the the city or the pardon me the franchise agreement specifically gives the government the right to decide what's going to be on the government and education channels which are different and it says that those actually have to be overseen by a committee of the appointed by the city the the other side of that is the public access which is a different concept public access there is no requirement that government operated in fact the default under the under the state regulation is that the independent cable operator is going to be the party that operates the public access channel unless and until the municipality in this case the city of new york appoints a third party to do it the other the franchise specifically says that the public access channels will be under the jurisdiction of the community access organization m n n so we have jurisdiction over those channels for purposes consistent with the law and for other things that our board deems to be appropriate now that is contrast with the the government and education channels which are explicitly put under the jurisdiction of the mayor of the city of new york this is a city can kick you out at any time right i don't know that's true there's no right in the franchise agreement that gives that gives the city that right there's nothing in the regulations that says to the city can we i don't know that it's the same principle in this context but at least with respect to federal appointees usually the power to appoint carries with it the power to to fire and again i don't know the answer that there is no there is no express provision my friend so there is an express provision i don't think that there is maybe there is an implied one we've never had an issue where the city threatened to fire us or had any issue with us about about the way that we had ministered the channels so it hasn't come up it's oh it's a latent on exercise right in our reply brief we noted it would be like saying that a private road or private drive was a public forum just because the government could take it by eminent domain well maybe all this depends on whether there are some sort of recognized property interests involved but maybe it doesn't and if we step back and ask who owns in the colloquial sense at least of the word these channels is it the cable company or is it the government what would your answer be my answer would definitely be that cable company how can that be the came in the cable company didn't decide that it wanted to dedicate the channels to this purpose and it doesn't control what's on these channels it's the government that said you have to  provide these channels and make them available on certain grounds but the ownership right of the entire cable system i don't think this has been disputed is the cable into cable operators so in this case charter now  can own the depots but there's still a government access right to the use of the rail of the of the tracks right so here the government controls the content of what's on property right is a right or privilege to use something to the exclusion of others or to the exclusion of the other owner so i mean it's a simple definition of what a property right of us but this is a this is a situation where a private entity is controlling the channel did you want to do you want to complete your answer to justice alito so yes i'm sorry justice alito the to us the issue is about control and who is controlling the public access channels and in this case it's clearly m n and is controlling its under its jurisdiction according to the grant agreement the city designated us to operate them twenty eight years ago and then hasn't said a word to us of well suppose the city appoint it and  to decide who would have access to a facility in central park would you say eminent is not and is not then a state actor in exercising that authority so fire understand the hypothetical so the idea is that and is taking on a role of managing parades or something in central or let's say there's a place where people can speak in central park where there is a facility where concerts are put on the hand and the city enters into exactly the kind of agreement a house with a man and says you you you're in charge of this so i give them a state actor i think it's a much closer call because of the public function tests was doing something that the city has traditionally and exclusively done which is operate this speaking one of the park then i would think that that would be a much closer case and might well have the private operator as a state actor under the public function test what is it that is the difference between justice alito is hypothetical well so the main difference is that the public function test has never been read broadly it's always looked at the specific activity that the that the and he has and is involved well let's say that the city has decided we want to publicly it or and so it creates a public theater it decides it wants to use a first come first serve system it decides it was doesn't want to do the scheduling itself so it hire somebody to administer the public theater under the rules that it should all be first come first serve would would that it minister stirrer be a state started with right but i put that aside and recognizing that putting that aside i would say that the answer is no the key to look at when you're looking at a forum that is not one of the traditional of the street sidewalk or park is to look at it and say is this forum being operated by the government and when you look at it and you say the the private entities they're operating this this forum it's not the government says we set the rules about how this is going to operate we decided we want to the theater we decided we wanted first current come first serve well we're asking you to do was you know we don't have an extra employee to administer this program so we're contracting that function as out but what makes that person then the independent actor as opposed to the person who is essentially doing everything that the government would do except that the government thinks it's more efficient to hire somebody else well again  decision in jackson versus metropolitan edison regulation like that it even even pervasive regulation of a private entity does not convert that in a business suit i can read the cases but i can't do is figure out what the facts are and so that's what i'm focusing on it's now do you have this power at five pm something will be broadcast over your  yes you have the power to say this evening we wish to discuss subways tomorrow at four o'clock we will discuss the public schools or do you have that power or if we have one speaker who wants to talk about public schools and another one who wants to talk about subways they have to go in whatever jumble they want so people can't figure out the issues because there are fourteen thousand issues in new york and  we have a general conversation about all of that once or do you have the power to order that so we have the power to to put on shows at specific times to themselves shows look first come first served you tell me if i'm wrong in mine mine is there forty thousand issues people going discuss them in any order and anyone who wants to come up and broadcast can discuss any issue and you have no power to change that or you do have the power to organize it and have first a subway discussion then another discussion which is it we have that we have the power to organize it to some degree what to what degree well the to the degree related to the to the to the grant in the grant agreement which i have no doubt doesn't help me ok you see i have a simple factual question tomorrow i want to go in interrupt somebody who's in the subway discussion as soon as he's finished i want to discuss new york and hot dogs ok ok do you have to let me yes or no would depend on who else has submitted tapes and somebody else has submitted a tape that they'd like to discuss   will come third ok well first come first served is that right correct so it has to be a jumble well it doesn't have to be a jumble there are reports of our course it might be coincidence that it is not i don't know you have no power not to make it a jumble no that's not true we do have power to have some some ability to organize our channels what the we can decide that shows that are appropriate for children will be shown in the morning in shows that are appropriate for adults will be shown at night we can decide that we will cluster a series of shows about new york hot dogs there happen to be five of them with different opinions we'll put them on at the same in a row so that people can have a broad view of the merits of the syrup and does your argument depend on having editorial discretion in other words if you have no editorial discretion at all do you still went under jackson's or your theory we still win under jackson we think that the that the lack of discretion does not convert us bluhm the entire series of cases that have looked at that issue and they've all held that regulation even pervasive regulation is not sufficient cases involve the state where the government designating something a public forum they've involved traditional public forums that's a different issue but we have to re categories traditional designated and private and this is very different because this is the government designating this a public form well so the government makes a lot of decisions that the government by act of congress created the u s olympic committee of the government the government creates a lot of entity but not of them are designated public forums about any of them are limited that's true but to go to but really this one is very different this one says first come first serve and your only discretion is against things that are not speech obscenity except are right well i would push back on your assumption by saying that the government has has created a designated public forum that's already answering the question about state action if the government is creating a forum and does not retain control over it then it is not going to be a designated public form of constitutional dimension and we've tried to make that distinction in our brief because if something could be called the public forum there all over the place that the but that does not convert it to being a public form of constitutional dimension so in your example if the city creates a designated public forum in order to get there you have to have already determined that it is a designated public form of constitutional designates it a public form says anyone can use the theater first come first serve although and hire someone to administer that form so what's the difference well i don't understand you they can they have to clean it they have to who they have to clean it be going in a straight or has to get it cleaned has to provide security  to sort of organize the hours except her but nevertheless the city says this we've we rent the property we have the power to tell you keep it open keep it free keep it first come first serve your only ability to restoring this time place and or obscenity and other illegal conduct well it sounds like that that situation would be different than ours because it sounds like it would be closing in on burton versus wilmington parking authority where there is a symbiotic or joint connection between what the city is doing and what the private entities doing now there's no allegations eluding responsibility by simply figuring out how to have adequate independence while i don't think that in designating public functions all it has to do is say we're just going to sip it over the line a little bit well i don't think that that's a pork leaving the weight of the line a little bit there are first of all i don't know of many designated public for that are controlled by by independent parties certainly the traditional public fora i don't know of any either so prisons are prisons are different prisons prisons come along with the western says atkins case where you have a constitutional obligation it's a traditional and exclusive role of government to operate the prisons mr teach us and i'd like to reserve the rest of my time thank you counsel  mr hughes thank you mr chief justice may it please the court this is a public forum because new york has generally opened property that it controls for speech in new york has a general access policy that's this is it's first come first serve policy and i think the critical feature here which petitioners cannot dispute is that men and blacks discretion not that they cannot decline to run content that is protected by the first amendment well i think they just did disputed i mean getting to justice briar's questions can they lump things together and can they say five o'clock is the show on hot dogs and if even if your show on the subway was submitted prior to one and hot dogs the one  hot dogs is going to jump over it so two things about that iran are first is just as briar was indicating i think first come first serve probably means what it says that there's an order to it but second even if there is a power to schedule into group things i don't think that has any bearing on whether or not this is a policy of general access because in all public forums the government can impose a neutral time place manner restrictions but it seems to me a significant departure from first come first serve in that they can do the programming they're curating the programming they're saying we're going to have a show about this subject and we're going to put people who want to talk about it on surely in order yes the first hotdog show gets on before the third or fourth but it doesn't it's a significant departure from that well let me use an example are that may help in for example the lamb chapel and good news club the court looks to the use of after hours school classroom space and it's found that that's a public forum to which the public form rules attached but i thought don't think there's any dispute that a school can say the boy scouts get to use that school property on tuesdays and the girl scouts get to use that property on wednesdays the critical feature that makes that a public forum is that it's open to the public such that anybody who wants to speak their message has the ability to speak their message in that i don't i mean my goodness suppose that general motors decides the cars are controversial and they want to do something good for the city so they open there are offices somewhere an auditorium for everybody to speak and they say it'll be first come first served i mean that wouldn't make general motors a public entity no of course not your honor because public forms are limited to those forms that the government itself chooses to right now what i have written down here and i want to be sure i'm not missing something or that these are the features that lead someone to say it's not governmental or it is  by law that's on your side it's your right to there are two appointed public directors but there are eleven who are not and are members of the community that seems to cut against you three it's paid for the cost is paid for by the private entity but under government compulsion well i don't know i think that cuts for you for that there isn't much discretion in respect to what they run but there is some they can decide subject matters as long as they give people a fair chance and five which is not part of that but i'd love to hear what you have to say about it is there is for you a state remedy and moreover the existence and nature of that state remedy is really linked to the strength of your basic argument here and so i am in a way i'm not taking the saw to the other i'm suggesting that i am genuinely uncertain about this and i brought up the issues to try to get you to focus on yes your honor so let me take a few of these issues to help clarify and to begin perhaps with the directors issue our principal theory of state action is that eminent is performing the state function of administering a public forum argument is not like for example the situation le bron where the court found that the private entity had become effectively dominated by the public such that was in all of the hands a public actor for everything it did that's not our argument our argument is that is performing a public function in so far it ministers the public forum it's like the example the court was discussing of a private theatre that the government leases then sets the speech rules on and then it is delegates administration does not matter if the entity to whom they delegate has a majority of the board of directors a ppointed by the state or none of the board of directors appointed by the state it's doing the function that is the critical point last question about the state remedy a few things to say about the existence of the public service commission the first thing is there's been no contention that there's some kind of exhaustion requirement or anything like that that would be a legal obstacle to section nine hundred eighty three additionally petitioners are my clients respondents did in fact go to the public service commission they received no remedy that's described in a letter that was s to the district court docket number forty nine of them in the district court's docket the public service commission gave no remedy in this context but i think it would be quite a dangerous policy if the court were to say that a state could avoid constitutional obligations by  delegating them to a a private actor in so far as it creates a state administrative remedy to handle the claims that would parallel constitutional rights and it's easy to imagine that states of all sorts could find that particular states have disfavor constitutional rights and determined that if they could hand delegate their administration to private actors and then set up a state administrative scheme i think this court would find that that's not a way in which states are localities can obviate any of the constitutional protections from the first amendment on you referred to public function but under our cases it has to be a traditional public function something that's traditionally exclusively been a public function or how do you suggest that this qualifies under those precedents and i think what the exclusive public function test looks to is really two factors first is this the kind of function that requires a delegation of state sovereign authority if it is it's the kind of thing that exclusively states can do if it's not something explicitly states can't do the second factor that pairs with that is is this the kind of function that has expressed constitutional obligations attached to it those are the circumstances for example when the government's exercise of the eminent domain authority that the court in jackson said is an example of public function it's only something the state or the states delegate can do and it has expressed constitutional obligations that attach to it it ministering a public forum is of the same character it requires either the state doing itself or the state delegating its sovereign authority to a minister the public forum and there are specific constitutional obligations of the horizon of the first amendment that attach to that now i think what petitioners suggest is that you can i don't understand why leasing or  operating a public access channel is is akin to good one of these traditional public functions that are described in the cases home with yes or are it in so what i think matters is can you look at the function and find those t criteria i just mentioned satisfied i think there's the problem with the petitioners argument that if you just relabel in a way that doesn't meet those criteria that would i think effectively undermine the public function test if we look to west for example the court found that there was a public function of  treating inmates who are in state city now what was the actual function that was being performed well it was a doctor who is providing why isn't this mrs surratt interrupt why isn't this more like a utility in jackson where let's say all editorial discretions been taken away and then you're operating in essence like a utility in the court there was very careful to say that wasn't even though heavily regulated that wasn't good enough both the two factors  that i think are necessary for exclusive public function are missing in the utility context there is no delegated state sovereign authority that's required to run utility private companies can and do run utilities or running utilities not require sovereign authority and second there's no constitutional protections that attach to the specific act of running a utility that's unlike the context of administering the public forum where administering the public form does have required the exclusive sovereign act and does have specific constitutional obligations does your position depend on our finding a governmental property interest and if so what is the interest your honor i think our position is certainly strengthened by the fact that the government controls in all relevant respects we do think that the court needs to draw lines between where the government can designate property its public form and where it cannot and one line it's been suggested by just tom's opinion denver area is a place property where the government can legitimately control as its own and that can either be because it owns the property itself or because it has an exclusive legal interest in that property where it can set the rules of speech and legitimately treated as property that it controls so it's there be your idea that you can control is that based soley on your power which you or your friend called into question to terminate the operator so it's several things are just a walk through how this is where the control comes from first it's this the state in the city that decided even if public access exists they created then through negotiations with the cable companies cable companies would not even create a it's interesting in jump ahead to we've got somebody in place what once we have somebody in place in many cities in new york run this themselves they administrate themselves as a branch of state local government in those circumstances where they administer under the state exact same state regulatory regime themselves i think there's little question in those contacts that it is controlled and i would jump ahead again to this case yes your honor and then in this case they have taken the extra step instead of controlling it themselves of delegating it out to a third party here however the city has retained for itself exclusive authority to decide if they wish to terminate that administration right and your argument is that that greater power necessarily includes all the lesser powers yes your honor  you have the power to terminate you have the power to select a program you are it's a much of the city has that they've delegated that power to select programming in the short term but again there's really no power to select program it is anybody's program who wants to be who wants to well we've already established that there's some wiggle room at least in that sense you can have the hot dog program and you can have the subway program eat regardless of whether the subway people wanted their shows before the hot dogs of the critical thing is if the hot dog program wants to come on there's nothing eminent can do to say you can access this forum it's the same way if you go into central park if you're the you know the hot dog speaker and you want to go to central park and speak that message you have the right to do so because it's a policy of general are yours and your brief puts a lot of weight on the fact that this is a this has to be first come first serve i suppose it wasn't suppose and had discretion to decide which programs to accept what with the result be how if it has discretion so it can exercise editorial control then it would not be a public forum editorial control here's if i think maybe you can help me this looking at it in a broader way and saying that the first amendment is interested in a multiplicity of ideas a multiplicity that's the marketplace idea no i don't know which way to go i'm sure one thing that would help in this direction is having some channels such as first come first serve but i also think people might turn those off and another way to do it is to allow a lot of different internet owners or internet providers or at sutter etc to choose a lot of different ways and they will have different views maybe there should be a mix of ways of bringing different views to the public and i'm frightened in deciding for you that it would be too rigid and before you know it everybody where there is something that looks like a public forum run by private companies would have a the kind of access that you may well have here or did you say that so what do you if you ever thought about what is the answer let me address that directly because in our view the states and localities have complete control as to decide whether they want to have a system that new york has that leaves these for some out consequences or if they prefer to have a system for example as california has california has no first come first serve requirement and when you look how the los angeles public access station is organized there is no right if you're a hot dog person you want to put your video on you have to get through a board with the existing comes back to what i want to follow up with on the question i asked before it seems strange to me to say that if the policy is first come first serve no editorial discretion and therefore no viewpoint discrimination the first amendment  applies but if there's discretion and the administrator has the authority to engage in viewpoint to screw discrimination the first amendment doesn't apply it seems exactly backwards well you know i think it just depends if the state will county has chosen to create a public forum it has its discretion as to whether or not it wishes to create a public forum in a place for example going to the theater circumstance when the government leases a theater it has a choice to make it can organize the speech rules in that theater to make it a public forum where anybody who wants to speak their message has the right to do so or can organize that theater and say we the government are going to decide who gets to speak if the government is running something and it allows people to speak it seems to me there are two possibilities one it's throwing this open for anybody to speak but if it's not doing that then what happens there is government speech now would you is this government speech no you're right i think what's happening here is they've thrown it o right in the situation where there's discretion would you say that it's government speech well i know you doubt that the you just they they empower the administrator to decide who's going to talk and the administrator choose that is the viewpoints that likes those that's government speech if so that would be a private form your honor if it's being administered by the state then that would be government speech yes your honor but we don't suggest that constitutional obligations attach in that context because there's no function of administering a public forum in that context so if there is a delegation to a private entity a different result would control which is why the answer just briars question if the state chooses to configure its public access channels in that way it would lead to a different result in our principle is simply the modest one of states and localities should choose how they get to configure their channels it's not so models because it seems to me it would make sense here is that you have to go to the state you're claiming that you come here because there is the very obligation that you want imposed by state law and the state and that's the reason you're up here but i don't know of any doctrine this is in your socket i mean i don't know of any doctrine that says that you have to go to the state and therefore were not that i had justice alito is a problem i think that was his problem you're right if and only if you have an excellent state cause of action but you are it into take the example of good news club and school access cases christian legal society and all those cases those are cases that turn on underlying state determinations the court was clear and good news club the state the school district did not have to create a policy of general access that was a state decision or school district decision but once that local government made that decision it had a policy of constitutional consequence so although there was certainly i'm sure a way to go to the school district and complain about the the fact that they were discriminating against unpopular there was a claim initially brought against the city that was dismissed for failing to show the city directly caused this under my now we certainly don't challenge that argument i don't believe there is a claim against the city in this circumstance what do you think the city would be protected by police officer who uses excessive force correct your honor yes where's the line that you think i mean would you said essentially is the the administrator has no discretion but suppose the city gave the administrators some discretion where is where is the appropriate line i mean suppose the city suppose it weren't a complete public forum suppose there were subject matter limitations suppose that  the city gave the administrator some discretion to decide within particular areas which programs were better than other programs where is the line that this starts becoming not a public forum in you so this just turns on the chords a limited and limited public forum cases and the underlying question is is it a policy of general access or selective access now general access in what the court calls limited public forums the government can put some sort of fence around what is the permissible speaker's or permissible message for example in the rosenberg or context the the public forum was a student activity fund but it was limited to student organizations that whose majority of members were uva students so that was a limitation but within that limitation it was general access anybody could seek to use that form if however within that limitation there is still additional discretion then it becomes a form of selective access for example like the debate circumstance in arkansas educational because there was still even if you qualified within the rules that the government established there was still additional discretion on top the critical question is whether or not there is that discretion additional discretion that's been reserved to the state and if there is that additional discretion then it becomes a form of selective access rather than general access and this court is held that does not qualify as a public forum in the constitutional sense go back to justice sotomayor requests you said you didn't have a suit against the city administrator leiby on the ground that they're not administering the world first come first serve policy or in a state court so you know what petitioners of suggest is that we turn to the public service commission and the docket forty nine to destroy her we explain that our clients did turn to the public service commission and they were afforded no remedy the public service commission as i understand it's told them that this was not the kind of claim that they would hear now this is not to get reported review of that under new york law so you know when you get court review of that adverse decision by the public service i'm not aware of any private cause of action in that context your honor but it does go to the broader question of if there is a first amendment claim i think this is parallel to the school access cases and others the court has never said even if a state creates a parallel cause of action that that somehow displaces the court know that i want to know what you think on this because it could be that this rule first come first served is just horded toured if there is no remedy for well you know i think you are a violation of that you're saying they violated that all right what's your remedy and if there's no remedy what kind of rule is it what a few things to say about that your first petitioners point to the public service commission case of a mano which they suggest shows that they have discretion but when you read a mano that's which is the regulator here it says the reason the brooklyn's access stations were permissible is because they had channels that were operated on a first come first serve basis and that the petitioners and amano had not pointed to any content that anybody had asked that channel to run that was not actually put over the airwaves so that was the rule that was direct established by the public service commission but beyond that the regulation the state law is playing on its face it's not obligation of state law and it's also built into the contracts so i think that the was the directive of the state it's quite clear the city and the state have the ability to choose the rules of speech for that particular form they have chosen those expressly with first come first serve petitioners again if not i don't think can deny the straightforward premise that if somebody wants to bring the hot dog speech or any of that kind of speech that that they must run that speech they cannot in your clients do i have a remedy in state court or not what are the odds i'm not aware of any remedy that you would have in state court you honor i don't know that there is any administrative style remedy against the public service commission you know you've referred a few times to the school access cases of course those were government property right that's right your honor so i think you are here just to make sure i'm following m private company correct yes or an operating a channel on a cable system that's also private privately owned and it's heavily regulated by the state right so it's not government property it's not operating on government property it's just have we regulate in terms of being forced how it how it performs its functions which again coming back to the utility in everything we said in jackson on that front but i just don't think the school access cases help you because they assume the conclusion while you are it's government property there are no one disputes well two things just about the school access cases i agree that this case present the question of if in the school district and good news club interposed a nonprofit if the court would get to a different result i don't think the court would but to come back to the second point about the property interest i think there are two separate property interest there are issues that the court identified and turner there's no doubt that the cable operator has a property interest in their physical cable system over which this is all distributed and they certainly have rights to that including first amendment rights those are claims that would have to be brought by the cable operator or arguments that would be advanced by the cable operator my point is simply it's a private company operating a channel on another private company system and it's forced in terms of how to exercise its discretion to do so in a particular way by the government but that just means it's heavily regulated in terms of  what property interests does the government yes and so so tickets that your honor thank you for the property interest that is quite distinct here is the interest in the channel it's the interest that the government has obtained to be able to play specific content on particular channels that this and it obtained that interest when it gave the rights of way to the cable operator at any rate yes you know what it took back or what it reserved for itself was a property interest in these public access channels yes your honor in the franchise agreement part of the agreement where the it gives the cable operator the access the public rights of way which is critical to them constructing their system in exchange the city obtain the rights to have control over a select number of channels and so that is the particular right that's at issue what you're saying is this is not just a lot of regulation this is a property interests that the city reserved for itself when it gave over the rights of way that the cable company needs to do anything absolutely got to tell us about what is their interest that it reserved for itself the interests reserved for itself is to control a select number of channels it to place the content that it wishes over those channels in many cities in new york like buffalo in scarsdale and others the cities have retained that property interest and operated minister that property interest themselves the question this case is when they administer when they delegate that it no weird right where does it say that they retain the interest over the content on the channel so when the administration the delegation a curs honor i thought that's where you were telling me they reserve that property right and i just wonder weird weird is there anything that says that extends to watch what appears on the channel what so you know what does happen in this context is the city has set the speech rules which includes the first come first serve wh we believe is critical ok i still believe it may be critical as well and i as far as i can tell there seems to be a significant factual dispute over what first come first serve actually means you agree it doesn't actually mean first come first serve i mean if they're if they've got a program on the subways and somebody says my you know my show about something else was submitted first well too bad you can show that tomorrow so first come first served sounds good but it doesn't mean what it says what it means as a general access or not or that's what's critical is it means that channel access and let me say don't take the public park example where if the city delegates authority of public park and they say the rules the speech rules here is this is general access you can't engage in viewpoint discrimination and we're going to delegate all administrative functions that the court would not look to see whether or not they've reserved for themselves the ability to override particular one off decisions the point is they've delegated the function of making of controlling access to a public forum so whenever it says in your brief whatever it says first come first serve i should substitute the words general access that's what we is the relevance of first come first serve yes so it's a government imposes a first come first serve requirement on a private company so i think that's very different and because that some of the hypotheticals as you know raised absolutely honor so of course that there has to be a balance between sovereign authority doesn't nontraditional forms and private property there are two ways the court can approach that the one way is but i thought you said to the chief justice that the reservation a first come first serve is what gave you the property though your honor there is a limitation on the government's authority to impose that kind of speech rule on property that does not control this is property that's that's what gave you the property interest if it's something other than the first come first served what gives you the property interest is that you've given over the rights of way and you've kept access to you've kept the rights to determine how to use public access channels and you can do that yourself or you can use an administrator is that correct yes or honors the franchise agreement that gives that property right that you can control yes yes around it so this is distinct from the private property one attempts to impose a first come first serve requirement private property was completely different case and i think it would be a disability for utility gets you rights of way from the local government is that give the local government does that make the utility a state actor i don't think it makes these really a state actor in that context because there's no performance of the public function that requires again delegated sovereign authority an exercise of something that is carefully tied to a constitutional  is not happening in the utility they don't tax the language things i'm repeating myself but the language we've used in the case is traditionally exclusively of public function and i'm not sure that's not even true in this case right in other states other localities these public access channels are not run but you're right that's again why i don't think one can define this away by coming up by plucking out some activities not traditional it's what is the authority that's necessary to do what the state is doing or to that what the private actors doing the authority that administer the public form that has to come from the state and has constitutional obligations to stack up behind that and that's so again as i said earlier if one were to look to west you could redefine the functions providing orthopedic services and of course that's something that wouldn't need to test any what matters is did the doctor performing those services in the context of that particular case have to exercise delegated sovereign immunity answer there is yes you agree if you prevail here you agree that it would be different if you were a private company we all agree it's a private company that operates an open forum just as priors general motors example is government can't require first come first served on that absolutely right and that's would be a different case and would not be permitted is not so clearly different because in the united states there are that last numbers of different kinds of arrangements between government and private people ranging from agency to general motors and of course if you say public park it that's what it is you with in my opinion ok but it's not is that southern pacific railroad which was regulated for many years and what am i getting into this is that that's such a general question and i don't know if you have a thought on that just very briefly our argument is limited to the context of public forums in the administration of public forums being state action and argos now for that thank you council for minutes m thank you so just too too had a couple of points respondents view of the public function test to be a radical expansion of what this court has held before to be the public function test and i think a good way of looking at it is that they're asking this court to find a public function as the as the operation of a public form when the very specific thing that we do which is the operation of a public access channel is something that the city of new norcia has never done and it's certainly going back to denver area has never been a traditionally exclusive function of government one question about the p s c we never received a complaint from the p s c that the respondents had brought any claim against us there is a remedy if the p s c if you believe that the p s c is not operating correctly it's called article seventy eight in new york and you can bring such a claim if you believe that the that the public service commission is not an operating this is not a delegation of a constitutional obligation as in weston atkins this is not a there in west there is an eighth amendment obligation for the state to perform to who want to provide medical care for its for its prisoners there is nothing like that here that the p s c regulations put the obligations on the cable company not on the city so this is like jackson it's like sullivan because those are the the party that is obligated to provide public access channels is to cable operator and in the first instance it's got to operate them unless and until the city decides to to to delegate a third party which is not an agent of the city but a third party again for the city retain that these channels shall exist it does not say that this is going to be a constitutional public forum and it could have done that by delegating it to a government entity as my friend says happens in other places in new york it didn't do that it could have done that by dominating the board of eminent it didn't do that it could have done it by requiring that eminence policies be reviewed by the city it didn't do that none of those things are present here this is a company that was dealt delegate that was designated to operate these channels twenty eight years ago and the city hasn't come and said anything to us about how we operated they have left us alone who are a private company and we are not we are not a state actor under any of this court's tests just quickly the good news club and all of the school access cases was not only involved government property but the defendants in those cases were government actors cleary's day they were government actors and it was in fact you know the so when you're looking at the the who is responsible for the challenge conduct it's very clear that it was the government here that is not the case here in order to find that there is that the challenge conduct was caused by the government you first have to find out that we are a state actor under one of this court's test we're asking this court to apply its state action test the way it always has and the respondents are asking for this court to apply them in a radically new way thank you very much thank you count so they submitted