first because those channels are required by the city as a condition of the franchise and open to all comers that is available free of charge on a first come first serve nondiscrimination basis is mandated by state public service commission regulations they are a designated public forum unlimited character to use justice kennedy's words in the denver area or case that those are his words for which he had one other justices right that's correct your honor that that's not that's not yet the law of the united states no that's correct your honor i have to tell us why he's right in the other three are wrong i understand honor that that m n n is a private entity offering television channels does not preclude public forum analysis because such analysis applies not only when speakers seek access to public property but also when they seek access to private property dedicated by government to public use the cable is so so there was the lincoln center case the hotel  we said that now was in the fact that lincoln center had been in effect ceded this public property it was not a public for i'm sorry i'm i'm i'm a little bit i'm not i don't recall the facts entirely of that case i remember reading that but it wasn't cited in any of our brief cite i can't  it's it's i'm sorry i just i just don't recall recall you asking us to make a you're making a blanket statement it seems to me that there and in every case involving private property if there is sufficient government interaction or a sufficient sufficient government rule that can transform the private property into public form it's all right i'm that is what i'm saying i'm saying you want if the property is dedicated by government to public use public expressive activity you can center case the name of which union hotel union lincoln center the city had provided lincoln center with the property but we concluded that that was not a public forum notwithstanding the the city's involvement i'm not entirely from i can't remember the facts of that case entirely your honor if there was it me let me change the topic a little bit other than the fact that it involved least channels how do you distinguish this case from the lucy case there are two reasons why the most e is is distinguishable first to los a and if i might elaborate for a minute on least channels least access channels unlike public access channels and not open to all comers they're not available free of charge the cable operator may charge a fee to the user well in excess of the processing our ministry of costs and secondly this not even a clear nondiscrimination first come first serve requirement in the federal statute for for at least access as a majority of the justices concluded in denver area or at least access requirements are more akin a common carrier regulation of telephone companies the other reason why lo c is not controlling here's there was no public forum issue in los a the plaintiffs there that there was an issue as to whether the time warner cable which ran the cable systems in rochester and syracuse and and the government were arguing instead that there was that that this state action here because there is a public function and that's why the public forum doctrine is important if the if the public access channels are public fora then and then ends regulation of speech in those channels a matter of the cable company be required to delegate that role to m n m right i'm so it's it's actually i believe it was the city that the delegated government i mean would really what difference does it make you have you  they functioning state actors in los the answer was no i'm sorry and what most see the answer was no and that's correct your honor but it was but it was a different theory of state action asserted they are and there was no public forum doctrine issue raised or argued in that case only with the public or is there not a state actor then and you know they can't be sued under this but if it's a public forum your honor it's our position if it's a public and is engaged in a public function in running these channels what is the best supreme court or second circuit case that says that so what you're saying is that regulating speech in a public forum from the ninth circuit stating that the regulation of speech in a public forum is a classic of a public function is it your view that the contract with the city is what a public forum it's my view what renders this a public forum is not only the contract with us but the contract is where you start that's that's correct is that contract in our record  it's i don't believe other than the allegations in the in the can i found that extraordinary because it looks like you're proceeding with building on a contract and we don't have it and neither did the district court which is i guess more relevant but there are allegations your honor in the complaint as to the contents of the relevant provisions in the contract also in the minutes of complaint before currently before the p s c no there is there is no present administrative complaint i running over my time you're on to do you want you on track no would you want us to go with those provisions you've alleged without seeing the whole contract those we submit those are the most relevant provision maybe the most relevant but if if the next provision undercuts them completely i want to know and i believe i cited everything that was relevant to what i'm sure you cited everything useful to your case i have no doubt of that it's still a maze we don't have the contract and i'm hints that would affect their meaning or is there or is there no question that the text alone is all we need i think the text alone would be fine from your stand on this yes your honor if you think you have three minutes rebuttal will hear you that thank please the court my name is michael to live with cosen o'connor i represent the m and n a pelleas our position is that the district court got this one exactly right there is no state action and in the absence of state action  pellants cannot maintain a first amendment claim against and then or its or the other evidence and pallies there is no dispute that eminent is a private nonprofit corporation he was designated by the manhattan borough president in hundred two but it has never been controlled by the city and it's not currently controlled by the city the district they would be privileged to decide that the only broadcast with political content could be access isn't that an editorial decision to decide that somebody cannot produce programming that you will put on the air i'm saying that the public service commission regulation does not allow us to make any editorial noted that there is a an avenue for four producers to take and they have taken it traditionally in the past they go to the public service commission and then and proceed through administrative proceeding there if the contract from the didn't i mean the reason we don't offer it is because there is no allegation of state action here there's no plausible allegation of state action if you know there are there are six forum does the first amount of law well there are const in our brief we've tried to distinguish being constitutional public forum in which case yes it would and and public forum move in the way that it's you sort of colloquially oh i don't mean you mean you mean a constitutional public formal that in a public forum to which i thought the first amendment normally applies now you may say it doesn't that's why i'm asking you if it's a public forum do you agree the first amendment applies yes but for it to be a public forum there would have to be state action and there is none here that the contract would have to be of the type that would make clear that there is in fact state action for example the city would have to maintain control over the board and then so that it can control decisions which is the test that the supreme court used in the l case you agree that with your adversary that since the contracts online and apparently there's no dispute about its terms we can take judicial notice of the entire contract i believe so i don't know that i don't know for certain that it's online but if it is i would i would imagine it's accurate i don't see a reason why you couldn't take judicial notice of you know finding it on line sounds easy until you try to do i'm aware of  bron test because the because the vast majority of evidence board is independent only two members of the border controlled by are appointed by the minute and for a president similarly with the public function test the court looked at the public function test and said this is not a public function because running a television studio is not a traditional and exclusive role of government which i think is exactly the right analysis there is  you know has it become one i mean in cornelius the court said the streets were owned by the public by the city but they were from time immemorial they said dedicated to it as a place where people can speak right cities and parks they were private property right in cornelia's i believe that's correct ok so now you've got channels that not from time immemorial but from the from the beginning of cable have been private property correct but if we point we we made in our brief is that there are plenty of things that are analogous for example twitter all right later looks like a what are facebook you know maybe comes similar enough to a street as a place where all are invited to speak to be subject to the versed in then respectfully i don't believe so quad at a private university doesn't take on the doesn't isn't transmogrified into public property just because people are allowed to say anything that they want in a quad of it not everybody can go to that public university not everybody can this is this is dedicated to public access is it not first come first serve that's true like a street or a park make are related to upset it will reduce you ever get to editorial contact not everybody could get that lease this is public access everybody on first come first serve can get this that's true but i don't know that i don't think i makes a difference i don't answering i think a different quite i'm sorry the it may be that once they get the lease there's no editorial control but you're being asked is this is the leasing on a first come first served or is it a negotiated process where the less or can pick and choose  i don't think that the court this court in most you actually makes clear and i don't know that they that the decision below actually makes clear that you argument is also that it because of the lack of editorial control effectively the cable operator doesn't have it's not that it's a public form it's a correct correct right it's your idea not just mean it might be a public forum but that but he hasn't violated the first amendment in the absence of again in the absence of state action which is the scenic point on on for it being a public forum a constitutional public forum you know i mean that's that's where i believe we're we're we have we died right and my understanding is that there were also other things that are even in the complaint that other other confrontations that also went into that decision as well thank you thank you first amendment rights there are three potential or arguably plausible bases for municipal liability but none of them were sufficiently alleged there are the complaints made to the president which can which appear in one paragraph of the complaint there's the award of the cable franchises and there's the selection issue you can light somebody so they claim briefly directly that's what people do well that what's wrong with that one that particular paragraph does not allege a customer policy all it says is that ms halleck and others have complained to the borough president about and then censorship that's it it doesn't say what the bro president did doesn't say what the court is permitted to draw reasonable inferences from the allegations but of course the court is not permitted to make up facts that aren't in the complaint for all we know the borough president called and then said you need to do something about this we don't know it's not in the complaint the argument made for the first time on appeal is that while the borough president should have exercised its authority to rescind the designation to and then that's kind of a red herring because the plaintiffs themselves did not seek rescission of the designation that's not part of the relief that appears in the complaint in fact they no longer seek any relief against the city which is an additional reason to affirm the dismissal of the claims against the city they had a claim for money position these public access channels are not public in any way shape or form and it's why the city believes just as a matter of constitutional precedent that cable public access government that has an obligation in the first instance to provide whatever the service is and here the city does not have an obligation to provide cable public access channels the city doesn't even have an obligation to franchise  companies like time order to run cable t v the city's only obligation is conditional if it awards a cable franchise then the cable franchise agreement must contain certain provisions as a matter of state law and among those provisions is that the cable operator must set aside channels for public access so this is not a traditional sort of fee a public form created by theater other board members who selects those i know the manhattan borough president selects two i don't know who selects the others i'm sorry your honor and i know the court has asked us to submit hard copies of the franchise agreements and the grants a new supreme and to which the latter of which the city is not a party to and we will do that but i should note that in our brief and footnotes one and two we do provide the u r l is where those documents can be found i should also say with respect to misspell policy and custom that the city of course can't incur mono liability for complying with state regulations that bar the city from exercising editorial control over the public's use of public access channels there is one argument raised improperly for the first time on reply that i thought i should respond to briefly the plaintiffs say well you could have enforced a provision of the grant and use agreement that requires access on a first come first serve basis as i mentioned the city is not a party to that agreement and there is no legal authority cited by the plaintiffs that the city can exercise the rights of a mr melendez as a guest in that programming my understanding of low c is that there is no first come first serve requirement for these taxes channels left of your claim against the city because you haven't we've drawn it i have i haven't withdrawn the claim against the city my claim against the city is based upon deliberate indifference indirect retrospect i wish i had specifically never used that if the the channel to which the speaker is seeking access is a public forum then whoever is running the speech in that forum is performing a public function that is that is my argument and i and i believe that the public forum and the public function arguments are linked i cited in my reply the united church of christ case from the  that last actor who is in the business of regulating the public sees we're not that far removed in this case we have and i'm just saying you know i don't know how far i would take that but because it's not it's not part of it's not in this case i don't know honestly how far i would take that you're on or getting it i don't really have to ask you some level of obstruction in the deciding what's a public function in the fabric in case my last point is the public function was animal control but the specific targeted activity was spaying and neutering thank you your hon