( Slip Opinion) OCTOBER TERM, 2018 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of t he Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.


## SUPREME COURT OF THE UNITED STATES

Syllabus

MANHATTAN COMMUNITY ACCESS COR P. ET AL

. v. HALLECK ET AL

.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SECOND CIRCUIT

No. 17

– 1702

. Argued February 25, 2019

— Decided June 17, 2019

New York state law requires cable operators to set aside channels on

their cable systems for pub lic access . Th o se channels are operated by the cable operator unless the local government chooses to itself ope rate the channels or designates a private entity to operate the cha nnels . New York City (the City) has designated a private nonprofit corporati on, petitioner Manhattan Neighborhood Network (MNN), to
operate the public access channels on Time Warner’s cable system in Manhattan. Respondents DeeDee Halleck and Jesus Papoleto Melendez produced a film critical of MNN to be aired on MNN’s pu blic acces s channels. MNN televised the film

. MNN later suspended
Halleck and Melendez from all MNN services and facilities. The pr oducers sued, claiming that MNN violated their First Amendment
free

- speech rights when it restricted their access to the public acce ss channels because of the content of their film. The District Court dismissed the claim on the ground that MNN is not a state actor and therefore is not subject to First Amendment constraints on its edit orial discretion. Reversing in relevant part, the Second Circuit co ncluded that MNN is a state actor subject to First Amendment co nstraints.

Held : MNN is not a state actor subject to the First Amendment. Pp. 5–

16. (a) The Free Speech Clause of the First Amendment prohibits only governmental , not private , abridg ment of speech. See, e.g. , Denver Area Ed. Telecommunications Consortium, Inc. v. FCC , 518 U. S. 727,

737. T his Court’s state

- action doctrine distinguishes the government from individuals and private entities. Pp. 5– 14. (1) A private entity may qualify as a state actor when , as rel e-2 MANHATTAN COMMUNITY ACCESS CORP. v. HALLECK

Syllabus

vant here, the entity exercises “powers traditionally exclusively r eserved to the State.” Jackson v. Metropolitan Edison Co. , 419 U. S. 345, 352. The Court has stressed that “very few” func tions fall into

that ca tegory. Flagg Bros., Inc. v. Brooks , 436 U. S. 149, 158. The
relevant function in this case

— operation of public access channels on a cable system

— has not traditionally and exclusively been performed by government. Since the 1970s, a variety of private a nd public a ctors have operated public access channels. E arly Manhattan public
access channels were operated by private cable operators with some help from private nonprofit organizations. That practice continued until the early 1990s , when MNN began to o perate the channels

. Operating public access channels on a cable system is not a trad itional, exclusive public function. Pp. 6– 8. (2) The producers contend that the relevant function here is more generally the operation of a public forum for speech, wh ich, they claim, is a traditional, exclusive public function. But that analysis mistakenly ignores the threshold state

- action question. Providing some kind of forum for speech is not an activity that only governme ntal entities have traditionally performe d. Therefore, a private entity who provides a forum for speech is not transformed by that fact alone
into a state actor. See Hudgens v. NLRB , 424 U. S. 507, 520

– 521. Pp. 8– 10. (3) The producers note that the City has designated MNN to o perate the publ ic access channels on Time Warner’s cable system, and
that the State heavily regulates MNN with respect to those channels. But the City’s designation is analogous to a government license, a
government contract, or a government

- granted monopoly, none of
which co n vert s a private entity into a state actor

— unless the private entity is performing a traditional, exclusive public function. See, e.g. , San Francisco Arts & Athletics, Inc. v. United States Olympic Comm.

, 483 U. S. 522, 543

– 544. And the fact that MNN is subject to the State’s extensive regulation “ does not by itself convert its action into
that of the State .” Jackson , 419 U. S., at 350. Pp. 11

– 14. (b) The producers alternatively contend that the public access channels are actually the City’s prop erty and that MNN is essentially managing government property on the C ity’s behalf. But the City does not own or lease the public access channels and does not possess any formal easement or other property interest in the channels

. It
does not matter that a provision in the f r anchise agreement s between
the C ity and Time Warner allowed the C ity to designate a private e ntity to operate the public access channels on Time Warner’s cable sy stem. Nothing in the agreement s suggests that the City possesses any property interest in the cable system or in the public access channels on that system. Pp. 14

– 15.Cite as: 587 U. S. ____ (20 19 ) 3

Syllabus

882 F. 3d 300, reversed in part and remanded.

K AVANAUGH , J., delivered the opinion of the Court, in which R OBERTS

, C. J., and T HOMAS

, A LITO , and G ORSUCH , JJ., joined. S OTOMAYOR , J., filed a dissenting opinion, in which G INSBURG

, B REYER , and K AGAN , JJ., joined.Cite as: 587 U. S. ____ (20 19 ) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Wash

ington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.


## SUPREME COURT OF THE UNITED STATES

_________________
No. 17

– 1702

_________________ MANHATTAN COMMUNITY ACCESS CORPORATION,

ET AL

., PETITIONERS v. DEEDEE HALLECK, ET AL

.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT

[ June 17, 2019 ]

J USTICE K AVANAUGH delivered the opinion of the Court.
The Free Speech Clause of the First Amendment co nstrains governmental actors and protects private actors. To draw the line between governmental and private, this Court applies what is known as the state

- action doctrine. Under that doctrine, as relevant here, a private entity may be c onsidered a state actor when it exercises a fun ction “traditionally exclusively reserved to the State.”
Jackson v. Metropolitan Edison Co. , 419 U. S. 345, 352 (1974).
This state

- action case concerns the public access cha nnels on Time Warner’s cable syste m in Manhattan. Public access channels are available for private citizens to use. The public access channels on Time Warner’s cable system in Manhattan are operated by a private nonprofit corpor ation known as MNN. The question here is whether

MNN— even t hough it is a private entity

— nonetheless is a state actor when it operates the public access channels. In other words, is operation of public access channels on a cable system a traditional, exclusive public function? If so,
then the First Amendment would restrict MNN’s exercise2 MANHATTAN COMMUNITY ACCESS CORP. v. HALLECK

Opinion of the Court

of editorial discretion over the speech and speakers on the public access channels.
Under the state

- action doctrine as it has been articulated and applied by our precedents, we conclude that oper ation of public access channels on a cable system is not a traditional, exclusive public function. Moreover, a private entity such as MNN who opens its property for speech by others is not transformed by that fact alone into a state actor. In operating the public access channels, MNN is a private actor, not a state actor, and MNN therefore is not subject to First Amendment constraints on its editorial discretion. We reverse in relevant part the judgment of the Second Circuit, and we remand the case for further proceedings consistent with this opinion.

I
A
Since the 1970s, public access channels have been a regular feature on cable television systems throughout the United States. In the 1970s, Federal Communications Commission regulations required certain cable operators to set aside channels on their cable systems for public access. In 1979, however, this Court ruled that the FCC lacked statutory authority to impose that mandate. See
FCC v. Midwest Video Corp. , 440 U. S. 689 (1979). A few years later, Congress passed and President Rea gan signed the Cable Communications Policy Act of 1984. 98 Stat. 2779. The Act authorized state and local governments to require cable operators to set aside channels on their cable systems for public access. 47 U. S. C. §531(b). The New York State Public Service Commission reg ulates cable franchising in New York State and requires cable operators in the State to set aside channels on their cable systems for public access. 16 N. Y. Code s, Rules & Regs. § § 895.1(f), 895.4(b) (2018)

. State law requires t hat use of the public access channels be free of charge andCite as: 587 U. S. ____ (2019) 3

Opinion of the Court

first

- come, first

- served. §§895.4(c)(4) and (6). Under state law, the cable operator operates the public access channels unless the local government in the area chooses to itself operate the cha nnels or designates a private entity to operate the channels. §895.4(c)(1). Time Warner (now known as Charter) operates a cable system in Manhattan. Under state law, Time Warner must set aside some channels on its cable system for public access. New Yo rk City ( the City) has designated a private nonprofit corporation named Manhattan Neig hborhood Network, commonly referred to as MNN, to ope rate Time Warner’s public access channels in Manhattan. This case involves a complaint against MNN regarding its

man agement of the public access channels.

B
Because this case comes to us on a motion to dismiss, we accept the allegations in the complaint as true. See As hcroft v. Iqbal , 556 U. S. 662, 678 (2009). DeeDee Halleck and Jesus Papoleto Melendez produced publ ic access programming in Manhattan. They made a film about MNN’s alleged neglect of the East Harlem community. Halleck submitted the film to MNN for airing on MNN’s public access channels, and MNN later tel evised the film. Afterwards, MNN fielded multiple co mplaints about the film’s content. In response, MNN te mporarily suspended Halleck from using the public access
channels.
Halleck and Melendez soon became embroiled in another dispute with MNN staff. In the wake of that dispute, MNN ultimately suspended Halleck and Melendez from
all MNN services and facilities. Halleck and Melendez then sued MNN, among other parties, in Federal District Court. The two producers
claimed that MNN violated their First Amendment free

speech rights when MNN restricted their access to the4 MANHATTAN COMMUNITY ACCESS CORP. v. HALLECK

Opinion of the Court

public access channels because of the content of their film. MNN moved to dismiss the producers’ First Amendment claim on the ground that MNN is not a state actor and therefore is not subject to First Amendment restrictions on
its editorial discretion. The District Court agreed with MNN and dismissed the producers’ First Amendment
claim. The Second Circuit reversed in relevant part. 882 F. 3d 300, 308 (2018). In the majority opinion authored by Judge Newman and joined by Judge L ohier, the court stated that the public access channels in Manhattan are a public forum for purposes of the First Amendment. Re asoning that “public forums are usually operated by go vernments,” the court concluded that MNN is a state actor subject to First Amendment constraints. Id. , at 306

– 307. Judge Lohier added a concurring opinion, explaining that MNN also qualifies as a state actor for the independent reason that “New York City delegated to MNN the trad itionally public function of administering and r egulating speech in the public forum of Manhattan’s public access
channels.” Id., at 309. Judge Jacobs dissented in relevant part, opining that MNN is not a state actor. He reasoned that a private entity’s operation of an open forum for speakers does no t render the host entity a state actor. Judge Jacobs further stated that the operation of public access channels is not a traditional, exclusive public function. We granted certiorari to resolve disagreement among the Courts of Appeals on the question whether private operators of public access cable channels are state actors subject to the First Amendment. 586 U. S. __ (2018). Compare 882 F. 3d 300 (case below), with Wilcher v. A kron , 498 F. 3d 516 (CA6 2007); and Alliance for Commu

nity Media v. FCC , 56 F. 3d 105 (CADC 1995).Cite as: 587 U. S. ____ (2019) 5

Opinion of the Court

II
Ratified in 1791, the First Amendment provides in relevant part that “Congress shall make no law .

. . abrid ging the freedom of speech .” Ratified in 1868, the Fou rteenth Amendment makes the First Amendment’s Free Speech Clause applicable against the States: “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;

nor shal l any State deprive any person of life, liberty, or property, without due process of law .

. . .” §1. The text and original meaning of those Amendments, as well as this Court’s longstanding precedents, establish that the Free Speech Clause prohibits only governmental abrid gment of speech. The Free Speech Clause does not prohibit private abridgment of speech. See, e.g., Denver Area Ed. Telecommunications Consortium, Inc. v. FCC , 518 U. S. 727, 737 (1996) (plurality opinion); Hurley v. Irish

American Gay, Lesbian and Bisexual Group of Boston,

Inc. , 515 U. S. 557, 566 (1995); Hudgens v. NLRB , 424
U. S. 507, 513 (1976); cf. Miami Herald Publishing Co. v. Tornillo , 418 U. S. 241, 256 (1974).
In accord with the text and structure of the Constit ution, this Cou rt’s state

- action doctrine distinguishes the government from individuals and private entities. See Brentwood Academy v. Tennessee Secondary School Athletic

Assn. , 531 U. S. 288, 295

– 296 (2001). By enforcing that constitutional boundary between the govern mental and the private, the state

- action doctrine protects a robust sphere of individual liberty. Here, the producers claim that MNN, a private entity, restricted their access to MNN’s public access channels because of the content of the producers’ film. The produ cers have advanced a First Amendment claim against MNN. The threshold problem with that First Amendment claim is a fundamental one: MNN is a private entity. Relying on this Court’s state

- action precedents, the6 MANHATTAN COMMUNITY ACCESS CORP. v. HALLECK

Opinion of the Court

producers assert that MNN is nonet heless a state actor subject to First Amendment constraints on its editorial discretion. Under this Court’s cases, a private entity can qualify as a state actor in a few limited circumstances

— including, for example, (i) when the private entity pe rforms a traditional, exclusive public function, see, e.g., Jackson , 419 U. S., at 352

– 354; (ii) when the government compels the private entity to take a particular action, see, e.g., Blum v. Yaretsky , 457 U. S. 991, 1004

– 1005 (1982); or (iii) when the government acts jointly with the private entity, see, e.g., Lugar v. Edmondson Oil Co. , 457 U. S. 922, 941

– 942 (1982). The producers’ primary argument here falls into the first category: The producers contend that MNN exercises a traditional, exclusive public functio n when it operates the public access channels on Time Warner’s cable system in Manhattan. We disagree.

A
Under the Court’s cases, a private entity may qualify as a state actor when it exercises “powers traditionally excl usively reserved to the State.” J ackson , 419 U. S., at 352. It is not enough that the federal, state, or local gover nment exercised the function in the past, or still does. And it is not enough that the function serves the public good or the public interest in some way. Rather, to qual ify as a traditional, exclusive public function within the meaning
of our state

- action precedents, the government must have traditionally and exclusively performed the function. See
Rendell

- Baker v. Kohn , 457 U. S. 830, 842 (1982); Jackson

, 419 U. S., at 352

– 353; Evans v. Newton , 382 U. S. 296, 300 (1966). The Court has stressed that “very few” functions fall into that category. Flagg Bros., Inc. v. Brooks , 436 U. S. 149, 158 (1978). Under the Court’s cases, those functions include, for example, running elections and operating aCite as: 587 U. S. ____ (2019) 7

Opinion of the Court

company town. See Terry v. Adams , 345 U. S. 461, 468

– 470 (1953) (elections); Marsh v. Alabama , 326 U. S. 501,

505

– 509 (1946) (company town); Smith v. Allwright , 321
U. S. 649, 662

– 666 (1944) (elections); Nixon v. Condon

, 286 U. S. 73, 84

– 89 (1932) (elections). 1 The Court has ruled that a variety of functions do not fall into that cat egory, including, for example: running sports associations and leagues, administering insurance payments, operating nursing homes, providing spec ial education, representing indigent criminal defendants, resolving private disputes, and supplying electricity. See American Mfrs. Mut. Ins.
Co. v. Sullivan , 526 U. S. 40, 55

– 57 (1999) (insurance payments); National Collegiate Athletic Assn. v. Ta rkanian , 488 U. S. 179, 197, n. 18 (1988) (college sports); San Francisco Arts & Athletics, Inc. v. United States Olympic Comm. , 483 U. S. 522, 544

– 545 (1987) (amateur sports); Blum , 457 U. S., at 1011

– 1012 (nursing home);
Rendell

- Baker , 457 U. S., at 842 (specia l education); Polk County v. Dodson , 454 U. S. 312, 318

– 319 (1981) (public defender); Flagg Bros. , 436 U. S., at 157

– 16 3 (private dispute resolution); Jackson , 419 U. S., at 352

– 354 (ele ctric service). The relevant function in this case is operation of pu blic access channels on a cable system. That function has not traditionally and exclusively been performed by
government. Since the 1970s, when public access channels became a regular feature on cable systems, a variety of private and public actors hav e operated public access channels, inclu d-

——————

1 Relatedly, this Court has recognized that a private entity may, u nder certain circumstances, be deemed a state actor when the gover nment has outsourced one of its constitutional obligations to a private entity. In West v. Atkins , for example, the State was constitutionally obligated to provide medical care to prison inmates. 487 U. S. 42, 56 (1988). That scenario is not present here because the government has no such obligation to operate public access channels.8 MANHATTAN COMMUNITY ACCESS CORP. v. HALLECK

Opinion of the Court

ing: private cable operators; private nonprofit organiz ations; municipalities; and other public and private co mmunity organizations such as churches, schools, and l ibraries. See Denver Area , 518 U. S., at 761

– 762 ( plural i ty opinion); R. Oringel & S. Buske, The Access Manager’s Handbook: A Guide for Managing Community Television

14

– 17 (1987). The history of public access channels in Manhattan further illustrates the point. In 1971, public access cha nnels first started operating in Manhattan. See D. Bre nner, M. Price, & M. Meyerson, Cable Television and Other Nonbroadcast Video §6:29, p. 6–47 (2018). Those early Manhattan public access channels were operated in large part by private cable operators, with some help from private nonprofit organizations. See G. Gillespie, Public
Access Cable Television in the United States and Canada

37

– 38 (1975); Janes, History and Structure of Public Access Television, 39 J. Film & Video, No. 3, pp. 15

– 17 (1987). Those private cabl e operators continued to operate the public access channels until the early 1990s, when MNN (also a private entity) began to operate the public
access channels. In short, operating public access channels on a cable system is not a traditional, exclusive p ublic function within the meaning of this Court’s cases.

B
To avoid that conclusion, the producers widen the lens and contend that the relevant function here is not simply the operation of public access channels on a cable system, but rather is more gener ally the operation of a public forum for speech. And according to the producers, oper ation of a public forum for speech is a traditional, exclusive public function. That analysis mistakenly ignores the threshold state

action question. When the governmen t provides a forumCite as: 587 U. S. ____ (2019) 9

Opinion of the Court

for speech (known as a public forum), the government may be constrained by the First Amendment, meaning that the government ordinarily may not exclude speech or speakers from the forum on the basis of viewpoint, or sometimes
even on the basis of content. See, e.g., Southeastern Pr omotions, Ltd. v. Conrad , 420 U. S. 546, 547, 555 (1975) (private theater leased to the c ity); Police Dept. of Chicago

v. Mosley , 408 U. S. 92, 93, 96 (1972) (sidewalks); Hague v. Committee for Industrial Organi zation , 307 U. S. 496,

515

– 516 (1939) (streets and parks). By contrast, when a private entity provides a forum for speech, the private entity is not ordinarily constrained by the First Amendment because the private entity is not a state actor. The privat e entity may thus exercise editorial discretion over the speech and speakers in the forum.
This Court so ruled in its 1976 decision in Hudgens v. NLRB . There, the Court held that a shopping center owner is not a state actor subject to First Amendment

req uirements such as the public forum doctrine. 424

U. S., at 520

– 521; see also Lloyd Corp. v. Tanner , 407
U. S. 551, 569

– 570 (1972); Central Hardware Co. v. NLRB , 407 U. S. 539, 547 (1972); Alliance for Community
Media , 56 F. 3d, at 121

– 123.
The Hudgens de cision reflects a commonsense principle: Providing some kind of forum for speech is not an activity that only governmental entities have traditionally pe rformed. Therefore, a private entity who provides a forum for speech is not transformed by that fact a lone into a state actor. After all, private property owners and private lessees often open their property for speech. Grocery stores put up community bulletin boards. Comedy clubs host open mic nights. As Judge Jacobs persuasively e xplained, it “is not at all a near

- exclusive function of the state to provide the forums for public expression, politics, information, or entertainment.” 882 F. 3d, at 311 (opinion concurring in part and dissenting in part).10 MANHATTAN COMMUNITY ACCESS CORP. v. HALLECK

Opinion of the Court

In short, merely hosting speech by others is no t a trad itional, exclusive public function and does not alone tran sform private entities into state actors subject to First
Amendment constraints. If the rule were otherwise, all private property owners and private lessees who open their property for spee ch would be subject to First Amendment constraints and would lose the ability to exercise what they deem to be appropriate editorial discretion within that open forum. Private property owners and private lessees would face the unappetizing choice of allowing all comers or closing the platform altogether. “The Constitution by no means requires such an attenuated doctrine of dedication of private property to public use.” Hudgens , 424 U. S., at 519 (internal quotation marks omitted). Benjamin Franklin did not have to operate his newspaper as “a stagecoach, with seats for everyone.” F. Mott, American Journalism 55 (3d ed. 1962). That principle still holds true. As the
Court said in Hudgens , to hold that private property ow ners providing a forum for speech are constrained by the
First Amendment would be “to create a court

- made law wholly disregarding the constitutional basis on which private ownership of property rests in this co untry.” 424

U. S., at 517 (internal quotation marks omitted). The Constitution does not disable private property owners and private lessees from exercising editorial discretion over speech and speakers on their property. 2 The producers here are seeking in effect to circumvent this Court’s case law, including Hudgens . But Hudgens is sound, and we therefore reaffirm our holding in that case. 3

——————

2 A distinct question not raised here is the degree to which the First
Amendment protects priv ate entities such as Time Warner or MNN from government legislation or regulation requiring those private entities to open their property for speech by others. Cf. Turner Broa dcasting System, Inc. v. FCC , 512 U. S. 622, 636

– 637 (1994).

3 In Cornelius v. N AACP Legal Defense & Educational Fund, Inc.

,Cite as: 587 U. S. ____ (2019) 11

Opinion of the Court

C
Next, the producers retort that this case differs from Hudgens because New York City has designated MNN to operate the public access channels on Time Warner’s cable system, and because New York State heavily regulates MNN with respect to the public access channels. Under this Court’s cases, however, those facts do n ot establish
that MNN is a state actor. New York City’s designation of MNN to operate the public access channels is analogous to a government l icense, a government contract, or a government

- granted monopoly. But as the Court has long held, the fact that the government licenses, contracts with, or grants a m onopoly to a private entity does not convert the private entity into a state actor

— unless the private entity is performing a traditional, exclusive public function. See,

e.g., San Francisco Arts & Athl etics , 483 U. S., at 543

– 544 (exclusive- use rights and corporate charter s ); Blum , 457
U. S., at 1011 (licenses); Rendell

- Baker , 457 U. S., at 840

– 841 (contracts); Polk County , 454 U. S., at 319, n. 9, and

320

– 322 (law licenses); Jackson , 419 U. S., at 351

– 352 ( electric monopolies ); Columbia Broadcasting System, Inc.

v. Democratic National Committee , 412 U. S. 94, 120

– 121 (1973) (broadcast license s ); Moose Lodge No. 107 v. Irvis

, 407 U. S. 163, 176

– 177 (1972) (liquor license s ); cf. Trustees

—————— this Court said in passing dicta that “a speaker must seek access to public property or to private property dedicated to public use to evoke
First Amendment concerns.” 473 U. S. 788, 801 (1985). But Cornelius dealt with government

- owned property. As J USTICE T HOMAS explained

in Denver Area Educational Telecommunications Consortium, Inc. v. FCC , the Court’s admittedly imprecise and overbroad phrase in Co rnelius is not consistent with this Court’s case law and sh ould not be read to suggest that private property owners or private lessees are subject to First Amendment constraints whenever they dedicate their private property to public use or otherwise open their property for speech. 518 U. S. 727, 827

– 828 (1996) ( opinion concurring in judgment in part and dissenting in part).12 MANHATTAN COMMUNITY ACCESS CORP. v. HALLECK

Opinion of the Court

of Dartmouth Coll ege v. Woodward , 4 Wheat. 518, 638

– 639 (1819) (corporate charter s ). The same principle applies if the government funds or subsidizes a private entity. See
Blum , 457 U. S., at 1011; Rendell

- Baker , 457 U. S., at 840. Numerous private entities in America obtain gover nment licenses, government contracts, or government

granted monopolies. If those facts sufficed to transform a private entity into a state actor, a large swath of private entities in America would suddenly be turned into state
actors and be sub ject to a variety of constitutional co nstraints on their activities. As this Court’s many state

action cases amply demonstrate, that is not the law. Here, therefore, the City’s designation of MNN to operate the public access channels on Time Warner’s cab le system
does not make MNN a state actor. So, too, New York State’s extensive regulation of MNN’s operation of the public access channels does not make MNN a state actor. Under the State’s regulations, air time on the public access channels must be free , and pr ogramming must be aired on a first

- come, first -served basis. Those regulations restrict MNN’s editorial discr etion and in effect require MNN to operate almost like a common carrier. But under this Court’s cases, those r estrictions do not render M NN a state actor.

In Jackson v. Metropolitan Edison Co. , the leading case on point, the Court stated that the “fact that a business is subject to state regulation does not by itself convert its
action into that of the State.” 419 U. S., at 350. In that case, the Court held that “a heavily regulated, privately owned utility, enjoying at least a partial monopoly in the providing of electrical service within its territory,” was not

a state actor. Id. , at 358. The Court explained that the
“mere existence” of a “regulatory scheme”

— even if “exte nsive and detailed”

— did not render the utility a state actor. Id., at 350, and n. 7. Nor did it matter whether the State had authorized the utility to provide electric service to theCite as: 587 U. S. ____ (2019) 13

Opinion of the Court

community, or whether the utility was the only entity providing electric service to much of that community. This case closely parallels Jackson . Like the electric utility in Jackson , MNN is “a heavily regulated, privately owned” entity. Id., at 358. As in Jackson , the regulations
do n ot transform the regulated private entity into a state

actor. Put simply, being regulated by the State does not make
one a state actor. See Sullivan , 526 U. S., at 52; Blum

, 457 U. S., at 1004; Rendell

- Baker , 457 U. S., at 841

– 842;
Jackson , 419 U. S., at 350; Moose Lodge , 407 U. S., at 176

– 177. As the Court’s cases have explained, the “being heavily regulated makes you a state actor” theory of state action is entirely circular and would significantly enda nger individual liberty and private enterprise. T he theory would be especially problematic in the speech context, because it could eviscerate certain private entities’ right s to exercise editorial control over speech and speakers on their properties or platforms. Not surprisingly, as

J USTICE T HOMAS has pointed out, this Court has “never even hinted that regulatory control, and particularly direct regulatory control over a private entity’s First Amendment speech rights,” could justify subjecting the regulated private entity to the constraints of the First
Amendment. Denver Area , 518 U. S., at 829 (opinion concurring in judgment in part and dissenting in part). In sum, we conclude that MNN is not subject to First
Amendment constraints on how it exercises its editorial discretion with respect to the p ublic access channels. To be sure, MNN is subject to state

- law constraints on its editorial discretion (assuming those state laws do not violate a federal statute or the Constitution). If MNN violates those state laws, or violates any applicable co ntract s , MNN could perhaps face state

- law sanctions or liability of some kind. We of course take no position on any potential state

- law questions. We simply conclude14 MANHATTAN COMMUNITY ACCESS CORP. v. HALLECK

Opinion of the Court

that MNN, as a private actor, is not subject to First
Amendment constraints on how it exercise s editorial discretion over the speech and speakers on its public
access channels.

III
Perhaps recognizing the problem with their argument that MNN is a state actor under ordinary state

- action principles applicable to private entities and private pro perty , the producers alternatively contend that the public access channels are actually the property of New York City, not the property of Time Warner or MNN. On this theory, the producers say (and the dissent agrees) that MNN is in essence simply managing gov ernment property on behalf of New York City. The short answer to that argument is that the public access channels are not the property of New York City. Nothing in the record here suggests that a government (federal, state, or city) owns or leases either the cable system or the public access channels at issue here. Both Time Warner and MNN are private entities. Time Warner is the cable operator, and it owns its cable network, which contains the public access channels. MNN operates those public access c hannels with its own facilities and equi pment. T he City does not own or lease the public access channels, and the City does not possess a formal easement or other property interest in those channels. The fra nchise agreements between the City and Time War ner do not say that the City has any property interest in the public access channels. On the contrary, the franchise agreements expressly place the public access channels “under the jurisdiction” of MNN. A pp. 22. Moreover, the producers did not allege i n their complaint that the City has a property interest in the channels. And the produ cers have not cited any basis in state law for such a concl usion. Put simply, the City does not have “any formalCite as: 587 U. S. ____ (2019) 15

Opinion of the Court

easement or other property interest in those channels.”

Denver Area , 518 U. S., at 828 (opinion of T HOMAS

, J. ).

It does not matter that a provision in the franchise
agreements between the City and Time Warner allowed the City to designate a private entity to operate the public
access channels on Time Warne r’s cable system. Time Warner still owns the cable system. And MNN still ope rates the public access channels. To reiterate, n othing in the franchise agreement s suggests that the City possesses any property interest in Time Warner’s cable system, or in

t he public access channels on that system.
It is true that the City has allowed the cable operator, Time Warner, to lay cable along public rights

- of

- way in the City. But Time Warner’s access to public rights -ofway does not alter the state

- action analysis . For Time Warner, as for other cable operators, access to public rights -of- way is essential to lay cable and construct a physical cable infrastructure. See Turner Broadcasting System, Inc. v. FCC , 512 U. S. 622, 628 (1994). But the
same is true for uti lity providers, such as the electric utility in Jackson . Put simply, a private entity’s permi ssion from government to use public rights

- of

- way does not render that private entity a state actor. Having said all that, our point here should not be read

too broadly. Under the laws in certain States, including New York, a local government may decide to itself operate the public access channels on a local cable system (as many local governments in New York State and around the country already do), or could take appropriate steps to obtain a property interest in the public access channels. Depending on the circumstances, the First Amendment might then constrain the local government’s operation of the public access channels. We decide only the case before
us in light of the record before us.16 MANHATTAN COMMUNITY ACCESS CORP. v. HALLECK

Opinion of the Court

* * *
It is sometimes said that the bigger the government, the
smaller the individual. Consistent with the text of the Constitution, the state

- action doctrine enforces a critical boundary between the government and the individual, and thereby protects a robust sphere of individual liberty. Expanding the state

- action doctrine beyond its traditional boundaries would expand governmental control while restricting individual liberty and private enterprise. We
decline to do s o in this case. MNN is a private entity that operates public access channels on a cable system. Operating public access
channel s on a cable system is not a traditional, exclusive public function. A private entity such as MNN who opens its property for speech by others is not transformed by
that fact alone into a state actor. Under the text of the Constitution and our precedents, MNN is not a state actor subject to the First Amendment. We reverse in relevant part the judgment of the Second Circuit, and we remand the case for further proceedings consistent with this opinion.

It is so ordered.Cite as: 587 U. S. ____ (20 19 ) 1

S OTOMAYOR

, J. , dissenting



## SUPREME COURT OF THE UNITED STATES

_________________
No. 17

– 1702

_________________ MANHATTAN COMMUNITY ACCESS CORPORATION,

ET AL

., PETITIONERS v. DEEDEE HALLECK, ET AL

.

O N WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SECOND CIRCUIT

[ June 17, 2019 ]

J USTICE S OTOMAYOR , with whom J USTICE G INSBURG

, J USTICE B REYER

, and J USTICE K AGAN join, dissenting.
The Court tells a very reasonable story about a case that
is not before us. I write to address the one that is. This is a case about an organization appointed by the government to administer a constitutional public forum. (It is not, as the Court suggests, about a private property

owner that simply opened up its property to others.) New

Y ork City (the City) secured a property interest in public

access television channels when it granted a cable fra nchise to a cable company. State regulations require those public

- access channels to be made open to the public on terms that render them a pub lic forum. The City co ntracted out the administration of that forum to a private organization, petitioner Manhattan Community Access Corporation (MNN). By accepting that agency relatio nship, MNN stepped into the City’s shoes and thus qualifies

as a state actor, subject to the First Amendment like any
other.

I
A

A cable

- television franchise is, essentially, a license to create a system for distributing cable TV in a certain area. It is a valuable right, usually conferred on a private co m-2 MANHATTAN COMMUNITY ACCESS CORP. v. HALLECK

S OTOMAYOR

, J. , dissenting

pany by a local g overnment. See 47 U. S. C. §§522(9)

– (10), 541(a)(2), (b)(1); Turner Broadcasting System

, Inc. v. FCC

, 512 U. S. 622, 628 (1994). A private company cannot enter a local cable market without one. §541(b)(1). Cable companies transmit content through wires that stretch “between a transmission facility and the television
sets of individual subscribers.” Id. , at 627

– 628. Creating this network of wires is a disruptive undertaking that “entails the use of public r ights -of- way and easements.”
Id.

, at 628. New York State authorizes municipalities to grant cable franchises to cable companies of a certain size only if those companies agree to set aside at least one public access
channel. 16 N. Y. Codes, Rules & Regs . §§895.1(f ), 895.4(b)(1) (2016)

. New York then requires that those public

- access channels be open to all comers on “a first

come, first

- served, nondiscriminatory basis. ” §895.4(c)(4)

. Likewise, the State prohibits both cable franchisees and local governments from “exercis[ing] any editorial control” over the channels, aside from regulating obscenit y and other unprotected content. §§895.4(c)(8)

– (9).

B
Years ago, New York City (no longer a party to this suit) and Time Warner Entertainment Company (never a party to this suit) entered into a cable

- franchise agreement. App. 22. Time Warner received a cable franchise; the City received public

- access channels. The agreement also provided that the public

- access channels would be operated by an independent, nonprofit corporation chosen by the Manhattan borough president. But the City, as the pra ctice of other New York municipalities confirms, could have
instead chosen to run the channels itself. See § 895.4(c)(1); Brief for Respondents 35 (ci ting examples). MNN is the independent nonprofit that the borough president appointed to run the channels; indeed, MNNCite as: 587 U. S. ____ (20 19 ) 3

S OTOMAYOR

, J. , dissenting

appears to have been incorporated in 1991 for that precise purpose, with seven initial board members selected by the borough president ( though only two thus selected today). See App. 23; Brief for Respondents 7, n. 1. The City a rranged for MNN to receive startup capital from Time
Warner and to be funded through franchise fees from
Time Warner and other Manhattan cable franchisees. App. 23; Brief for New York County Lawyers Association (NYCLA) as Amicus Curiae 27; see also App. to Brief for Respondents 19a. As the borough president announced upon MNN’s formation in 1991, MNN’s “central charge is to administer and manage all the public access channels of the cable television systems in Manhattan.” App. to Brief
for NYCLA as Amicus Curiae 1. As relevant here, respondents DeeDee Halleck and Jesus Papoleto Melendez sued MNN in U. S. District
Court for the Southern District of New York under 42
U. S. C. §1983. They alleged that the public

- access cha nnels, “[r]equired by state regulation and [the] local fra nchise agreements,” are “a designated public forum of unlimited character”; that the City had “delegated control of that public forum to M NN”; and that MNN had, in turn, engaged in viewpoint discrimination in violation of r espondents’ First Amendment rights. App. 39. The District Court dismissed respondents’ First Amendment claim against MNN. The U. S. Court of Appeals for the Second Circuit reversed that dismissal, concluding that the public

- access channels “are public forums and that [MNN’s] employees were sufficiently alleged to be state actors taking actio n barred by the First
Amendment.” 882 F. 3d 300, 301

– 302 (2018). Because the case before us arises from a motion to dismiss, r espondents’ factual allegations must be accepted as true.

Hernandez v. Mesa , 582 U. S. ___, ___ (2017) ( per curiam ) (slip op., at 1).4 MANHATTAN COMMUNITY ACCESS CORP. v. HALLECK

S OTOMAYOR

, J. , dissenting

II
I would affirm the judgment below. The channels are clearly a public forum: The City has a property interest in them, and New York regulations require that access to those channels be kept open to al l. And because the City (1) had a duty to provide that public forum once it granted a cable franchise and (2) had a duty to abide by the First Amendment once it provided that forum, those obligations did not evaporate when the City delegated the administr ation of that forum to a private entity. Just as the City would have been subject to the First Amendment had it chosen to run the forum itself, MNN assumed the same responsibility when it accepted the delegation.

A
When a person alleges a violation of the right to free speech, courts generally must consider not only what was
said but also in what context it was said. On the one hand, there are “public forums,” or settings that the government has opened in some way for speech by the public (or some subset of it). The Court’s prec edents subdivide this broader category into various subca tegories, with the level of leeway for government regulation of speech varying accordingly. See Minnesota Voters
Alliance v. Mansky , 585 U. S. ___, ___ (2018) (slip op.,

at 7). Compare Frisby v. Schultz , 487 U. S. 474, 480 (1988) ( streets and public park s , traditional public forum s ), with Southeastern Promotions, Ltd. v. Conrad , 420 U. S. 546, 555 (1975) (city

- leased theater, designated public forum)

, with Christian Legal Soc. Chapter of Univ. of Cal., Ha stings College of Law v. Martinez , 561 U. S. 661, 669, 67 9

, and n. 12 (2010) (program for registered student organiz ations, limited public forum)

. But while many cases turn on which type of “forum” is implicated, the import ant point here is that viewpoint discrimination is impermiss ible in them all. See Good News Club v. Milford CentralCite as: 587 U. S. ____ (20 19 ) 5

S OTOMAYOR

, J. , dissenting

School , 533 U. S. 98, 106 (2001). On the other hand, there are contexts that do not fall under the “forum” rubric. For one, there are contexts in
which the government is simply engaging in its own speech and thus has freedom to select the views it prefers

. See, e.g. , Walker v. Texas Div.

, Sons of Confederate Vete rans , Inc. , 576 U. S. ___, ___ –___ (2015) (slip op., at 6

– 7) (specialty license plates); Pleasant Grove City v. Summum

, 555 U. S. 460, 467

– 469, 481 (2009) ( privately donated
permanent monuments in a public park ). 1 In addition,
th ere are purely private spaces, where the First Amen dment is (as relevant here) inapplicable. The First Amendment leaves a private store owner (or homeowner), for example, free to remove a customer (or dinner guest) for expressing unwanted views. See, e.g

. , Lloyd Corp. v. Tanner , 407 U. S. 551, 569

– 570 (1972) . In these settings, there is no First Amendment right against viewpoint
discrimination. Here, respondents alleged viewpoint discrimination. App. 39. So a key question in this case concerns what the Manhattan public

- access channels are: a public forum of some kind, in which a claim alleging viewpoint discrimin ation would be cognizable, or something else, such as go vernment speech or purely private property, where picking favored viewpoints is appropriately commonplace. 2 Neither MNN nor the majority suggests that this is an i n-

——————

1 That does not mean that no restrictions apply at all to the gover nment’s expression in such spaces, but it does mean that the government can pick and choose among different views. See Walker , 576 U. S., at

___, ___ –

___ (slip op., at 6, 17

– 18); Summum , 555 U. S., at 468.

2 The channels are not, of course, a physical place. Under the Court’s precedents, that makes no difference: Regardless of whether something “is a forum more in a metaphysical than in a spatial or geographic

sense, .

. . the same principle s are applicable.” Rosenberger v. Rector and Visitors of Univ. of Va. , 515 U. S. 819, 830 (1995) ( treating “St udent Activities Fund” as the forum at issue and citing cases in which a school’s mail system and a charity drive were the relevant forums ).6 MANHATTAN COMMUNITY ACCESS CORP. v. HALLECK

S OTOMAYOR

, J. , dissenting

stance of government speech. This case thus turns first and foremost on whether the public

- access channels are or are not purely private property. 3

1
This Court has not defined precisely what kind of go vernmental property interest (if any) is necessary for a public forum to exist. See Cornelius v. NAACP Legal Defense & Ed. Fund, Inc. , 473 U. S. 788, 801 (1985) ( “a speaker must seek access to public pro perty or to private property dedicated to public use” ). But see ante , at 11, n. 3 (appearing to reject the phrase “private property dedicated to public use” as “passing dicta”). I assume for the sake of argument in this case that public

- forum analysis is ina ppropriate where the government lacks a “significant pro perty interest consistent with the communicative purpose of
the forum.” Denver Area Ed. Telecommunications Conso rtium, Inc. v. FCC , 518 U. S. 727, 829 (1996) (T HOMAS , J., concurring in judgment in part and dissenting in part). Such an interest is present here. As described above, New York State required the City to obtain public

- access channels from Time Warner in exchange for awarding a
cable franchise. See supra , at 2. The exclusive right to use these channels (and, as necessary, Time Warner’s infrastructure) qualifies as a property interest, akin at the very least to an easement. The last time this Court considered a case centering on public

- access channels, five Justices described an inter est like the one here as similar to an easement. Although

J USTICE B REYER did not conclude that a public

- access channel was indeed a public forum, he likened the cable

——————

3 As discussed below, it is possible that some (or even many) public

access channels are government speech. The channels that MNN administers, however, are clearly better thought of as a public forum given the New York regulations mandating open and equal acc ess. See infra , at 9– 10, and n. 7.Cite as: 587 U. S. ____ (20 19 ) 7

S OTOMAYOR

, J. , dissenting

company’s agreement to reserve such channels “to the reservation of a public easement, or a dedication of land for streets and parks, as part of a municipality’s approval
of a subdivision of land.” Denver Area , 518 U. S., at 760

– 761 (joined by Stevens and Souter, JJ.). And Justice Kennedy observed not only that an easement would be an

appro priate analogy, id., at 793

– 794 (opinion concurring in part, concurring in judgment in part, and dissenting in part, joined by G INSBURG , J.), but also that “[p]ublic access channels meet the definition of a public forum,” id., at 791, “even though they ope rate over property to which the cable operator holds title,” id., at 792; see also id., at 792

– 793 (noting that the entire cable system’s existence stems from the municipality’s decision to grant the franchise). What those five Justices suggested in 1996 remains true today. “A common idiom describes property as a ‘bu ndle of sticks’

— a collection of individual rights which, in certain combinations, constitute property. ” United States

v. Craft , 535 U. S. 274, 278 (2002). Rights to exclude and
to use are two of the most crucial sticks in the bundle. See id., at 283. “ State law determines

. . . which sticks are in a person’ s bundle,” id., at 278, and therefore defining pro perty itself is a state

- law exercise. 4 As for whether there is a sufficient property interest to trigger First Amendment forum analysis, related precedents show that there is. As noted above, there is no disputing that Time Warner
owns the wires themselves. See Turner

, 512 U. S. , at 628

. If the wires were a road, it would be easy to define the public’s right to walk on it as an easement. See, e.g. , In re
India Street , 29 N. Y. 2d 97, 100

– 103, 272 N. E 2d 518,

——————

4 The parties have not pointed this Court to any New York law defin itively establishing the status of the channels. But e ven if there were uncertainty about the status of the channels under New York law, that
would not be a reason to resolve the case against r espondents (plaintiffs
below ) at the motion to dismiss stage

. See infra , at 12, n. 9, 14.8 MANHATTAN COMMUNITY ACCESS CORP. v. HALLECK

S OTOMAYOR

, J. , dissenting

518

– 520 (1971). Similarly, if the wires were a theater, there would be no question that a government’s long

- term lease to use it would be sufficient for public

- forum pur

poses. Southeastern Promotions , 420 U. S., at 547, 555. But some may find this case more complicated because the wires are not a road or a theater that one can physically occupy; they are a conduit for transmitting signals that appear as television channels. In other words, the que stion is how to un derstand the right to place content on those channels using those wires. The right to convey expressive content using someone else’s physical infrastructure is not new. To give another
low- tech example, imagine that one company owns a billboard and another rents space on that billboard. The renter can have a property interest in placing content on the billboard for the lease term even though it does not
own the billboard itself. See, e.g., Naegele Outdoor Adve rtising Co. of Minneapolis v. Lakeville , 532 N. W. 2d 249, 253 (Minn. 1995); see also Matter of XAR Corp. v. Di D onato , 76 App. Div. 2d 972, 973, 429 N. Y. S. 2d 59, 60 (1980) (“Although invariably labeled ‘leases,’ agreements to erect advertising signs or to place signs on walls or fences are easements in gross”). The same principle should operate in this higher tech realm. Just as if the channels were a billboard, the City obtained rights for exclusive use of the channels by the public for the foreseeable future; no one is free to take the

channe ls away, short of a contract renegotiation. Cf. Craft , 535 U. S., at 283. The City also obtained the right to administer, or delegate the administration of, the cha nnels. The channels are more intangible than a billboard, but no one believes that a righ t must be tangible to qualify as a property interest. See

, e.g. , Armstrong v. United
States , 364 U. S. 40, 48

– 49 (1960) (treating destruction of valid liens as a taking); Adams Express Co. v. Ohio State
Auditor , 166 U. S. 185, 219 (1897) (treating “privil eges,Cite as: 587 U. S. ____ (20 19 ) 9

S OTOMAYOR

, J. , dissenting

corporate franchi ses, contracts or obligations” as taxable property). And it is hardly unprecedented for a gover nment to receive a right to transmit something over a pr ivate entity’s infrastructure in exchange for conferring something of value on th at private entity; examples go
back at least as far as the 1800s. 5 I do not suggest that the government always obtains a property interest in public

- access channels created by franchise agreements. But the arrangement here is co nsistent with what the Cou rt would treat as a governme ntal property interest in other contexts. New York City gave Time Warner the right to lay wires and sell cable TV. In exchange, the City received an exclusive right to send its own signal over Time Warner’s infrastructure

— no d ifferent than receiving a right to place ads on another’s billboards. Those rights amount to a governmental pro perty interest in the channels, and that property interest is clearly “ consistent with the commun icative purpose of the forum,” Denver Area , 518 U. S., at 829 (opinion of T HOMAS

, J.). Indeed, it is the right to transmit the very content to which New York law grants the public open and equal

access.

2
With the question of a governmental property interest resolved, it should become clear that the public

- access channels are a public forum. 6 Outside of classic examples

——————

5 For example, during the railroad boom

, governments obtained not only physical easements in favor of the public over tracks used, owned, and managed by private railroads

, including rights to use the rails and all relevant “fixtures and appur tenances,” see, e.g., Lake Superior & Mississippi R. Co. v. United States , 93 U. S. 442, 444, 453

– 454 (1877), but also, in some situations, rights to transmit personnel and freight for free or at reduced rates, Ellis, Railroad Land Grant Rates, 1850

– 1945,
21 J. Land & P. U. Econ. 207, 209 , 211

– 212 (1945)

.

6 Though the majority disagrees on the property question, I do not
take it seriously to dispute that this poin t would follow. S ee ante , at10 MANHATTAN COMMUNITY ACCESS CORP. v. HALLECK

S OTOMAYOR

, J. , dissenting

like sidewalks and parks, a public forum exists only where the government has deliberately opened up the setting for speech by at least a subset of the public. Cornelius , 473
U. S. , at 802 . “ Accordingly, the Court has looked to the policy and practice of the government ,” as well as the nature of the property itself, “to ascertain whether it intended to designate a place not traditionally open to assembly and debate as a public foru m. ” See i bid. For example, a state college might make its facilities open to student groups, or a municipality might open up an aud itorium for certain public meetings. See i d.

, at 802

– 803. The requisite governmental intent is manifest here. As noted above, New York State regulations require that the channels be made available to the public “on a first

- come, first

- served, nondiscriminatory basis.” 16 N. Y. C odes,

R ules & R egs. §895.4(c)(4) ; see also §§895.4(c)(8)

– (9). The State, in other words, mandat es that the doors be wide open for public expression. MNN’s contract with Time Warner follows suit. App. 23. And that is essentially how MNN itself describes things. See Tr. of Oral Arg. 9 (“ W e do not prescreen videos. We

— they come into t he door. We put them on the air”). 7 These regulations “evidenc[e] a clear intent to create a public forum.” Cornelius , 473
U. S., at 802.

B
If New York’s public

- access channels are a public forum,
it follows that New York cannot evade the First Amen dment by contracting out administration of that forum to a

——————

14

– 15

.

7 New York may be uncommon (as it often is) ; public

- access channels
in other States may well have different policies and practices that make them more like government speech than const itutional forums . See Brief for Respondents 30

– 31; Brief for American Civil Liberties Union

et al. as Amic i Curiae 13

– 15

. New York’s scheme, howev er, is the only
one before us.Cite as: 587 U. S. ____ (20 19 ) 11

S OTOMAYOR

, J. , dissenting

private agent. When MNN took on the responsibility of administering the forum, it stood in the City’s shoes and became a state actor for purposes of 42 U. S. C. §1983.
This conclusion follows from the Court’s de cision in West

v. Atkins , 487 U. S. 42 (1988). The Court in West unan imously held that a doctor hired to provide medical care to state prisoners was a state actor for purposes of §1983.

Id.

, at 54; see also id., at 58 (Scalia, J., concurring in part
and concurring in judgment) . Each State must provide medical care to prisoners, the Court explained, id., at 54, and when a State hires a private doctor to do that job, the doctor becomes a state actor, “ ‘clothed with the authority of state law,’ ” i d.

, at 5 5. If a doctor hired by the State abuses his role, the harm is “caused, in the sense relevant
for state

- action inquiry,” by the State’s having incarce rated the prisoner and put his medical care in that doctor’s
hands. Ibid. The fact that the doctor was a private contractor, the Court emphasized, made no difference. Ibid. It was “the physician’s function within the state system,” not his private

- contractor status, that determined whether his conduct could “fairly be attributed to the State.” Id.

, at

55

– 56. Once the State imprisoned the plaintiff, it owed him duties under the Eighth Amendment; once the State delegated those duties to a private doctor, the doctor
became a state actor. See ibid. ; see also id.

, at 56

– 57. If the rule were any different, a State would “ ‘be free to contract out all services which it is constitutionally obl igated to provide and l eave its citizens with no means for vindication of those rights, whose protection has been delegated to ‘private’ actors, when they have been

denied .’ ” Id., at 56, n. 14.
West resolves this case. Although the settings are di fferent, the legal features are the same: When a gover nment (1) makes a choice that triggers constitutional obl igations, and then (2) contracts out those constitutional12 MANHATTAN COMMUNITY ACCESS CORP. v. HALLECK

S OTOMAYOR

, J. , dissenting

respons ibilities to a private entity, that entity

— in agre eing to take on the job

— becomes a state actor for purposes of §1983. 8 Not all acts of governmental delegation necessarily trigger constitutional obligations, but this one did. New York State regulations required the City to secure public

access channels if it awarded a cable franchise. 16 N. Y. Codes, Rules & Regs. §895.4(b)(1). The City did award a cable franchise. The State’s regulations then required the City to make the channels it obtained availab le on a “first

come, first

- served, nondiscriminatory basis.” 9 §895.4(c)(4)

.

——————

8 Gov ernments are , of course, not constitutionally required to open prisons or public forums, but once they do either of these things,

cons titutional obligations attach. The r ule that a government may not evade the Constitution by substituting a private administrator , mea nwhile, is not a prison

- specific rule. More than 50 years ago, for exa mple, this Court made clear in Evans v. Newton , 382 U. S. 296 (1966), that the city of Macon, Georgia, could not evade the Fourteenth Amendment’s Equal Protection Clause by handing off control of a park to a group “of ‘private’ trustees.” Id. , at 301. Rather , “the public character of [the] park require[d] that it be treated as a public instit ution subject to the command of the Fourteenth Amendment, regardless of who ha[d] title under s tate law.” Id. , at 302.

9 Accordingly, this is not a case in which a private entity has been
asked to exercise standardless discretion. See, e.g., American Mfrs.
Mut. Ins. Co. v. Sullivan , 526 U. S. 40, 52 (1999). Had New York law
left MNN free to choos e its favorite submissions, for example, a diffe rent result might well follow.

MNN has suggested to this Court that its contract with Time Warner
allows it “ to curate content, to decide to put shows together on one of

our channels or a different channel.” Tr. of Oral Arg. 6; see Reply Brief
9. But MNN’s contract cannot defeat New York law’s “ first

- come, first

served, nondiscriminatory” scheduling requirement, 16 N. Y. C odes,

R ules & R egs. §895.4(c)(4) , and the discretion MNN asserts seems to be at most some limited authority to coordinate the exact placement and timing of the content it is obliged to accept indiscriminately, see Tr. of Oral Arg. 25

– 26. That seems akin to the authority to make reasonab le time, place, and manner provisions, which is consistent with admini stering any public forum. See Ward v. Rock Against Racism , 491 U. S. 781, 791 (1989). As for any factual assertions about how the channelsCite as: 587 U. S. ____ (20 19 ) 13

S OTOMAYOR

, J. , dissenting

That made the channels a public forum. See supra, at 9– 10. Opening a public forum, in turn, entailed First Amendment obligations. The City could have done the job itself, but it instead delegated that job to a private entity, MNN. MNN could have said no, but it said yes. (Indeed, it appears to exist entirely to do this job.) By accepting the job, MNN accepted the City’s responsibilities. See West , 487 U. S. , at 55.
The First Amendment does not fall silent simply because a government hands off the administration of its constit utional duties to a private actor.

III
The majority acknowledges that the First Amendment could apply when a local government either (1) has a

prop erty interest in public

- access channels or (2) is more directly involved in administration of those channels than the City is here. Ante

, at 15. And it emphasizes that it “decide[s] only the case before us in light of the record
before us.” Ibid

. These case

- specific qualifiers sharply limit the immediate effect of the majority’s decision, but that decision is still meaningfully wrong in two ways. First, the majority erroneously decides the property que stion against the plaintiffs as a matter of law. Second, and more fundamentally, the majority mistakes a case about the government choosing to hand off responsibility to an agent for a case about a private entity that simply enters a marketplace.

A The majority’s explanation for why there is no gover n-

—————— are operated in practice, this case arises from MNN’s motion to dismiss, so the facts asserted against it must be accepted as true. Hernandez v. Mesa , 582 U. S. ___, ___ (2017) ( per curiam ) (slip op., at 1). And any uncertainty about the facts or New York law, in any event, would be a

reason to vac ate and remand, not reverse.14 MANHATTAN COMMUNITY ACCESS CORP. v. HALLECK

S OTOMAYOR

, J. , dissenting

men tal property interest here, ante , at 14

– 15, does not hold up. The majority focuses on the fact that “[b] oth
Time War ner and MNN are private entities”; that Time
Warner “ owns its cable network, which contai ns the public access channels”; and that “ MNN oper ates those public access channels with its own facilities and equipment .”

Ante , at 14; see also ante

, at 15. Those considerations
cannot resolve this case. The issue is not who owns the cable network or that MNN uses its own property to ope rate the chan nels. The key question, rather, is whether the channels themselves are purely private property. An advertiser may not own a billboard, but that does not mean that its long

- term lease is not a property interest.
See supra , at 8. The majority also says that “[n]othing in the record here suggests that a government .

. . owns or leases either the cable system or the public access channels at issue here.”

Ante , at 14. But the cable system itself is irrelevant, and, as explained abov e, the details of the exchange that yielded Time Warner’s cable franchise suggest a governmental property interest in the channels. See supra, at 6– 9. The majority observes that “ the franchise agreements expressly place the public access channels ‘ under the jurisdiction ’ of MNN ,” ante , at 14, but that language sim

ply describes the City’s appointment of MNN to administer the channels. The majority also chides respondents for failing to “alleg[e] in their compl aint that the City has a property interest i n the channels,” ibid. , but, fairly read, respondents’ complaint includes such an assertion. 10 In

——————

10 Respondents alleged that the City “created an electronic public forum” and “delegat[ed] control of that forum to” MNN. App. 17. They further alleged that “[a] lmost all cable franchise agreem ents require cable operators

— as a condition for easements to use the public rights

of

- way

— to dedicate some channels for programming by the publi c,” id

., at 20, invoked the state regulations requiring the designation of a channel here, id ., at 21, and then alleged that the City’s franchiseCite as: 587 U. S. ____ (20 19 ) 15

S OTOMAYOR

, J. , dissenting

any event, any ambiguity or imprecision does not justify resolving the case against respondents at the motion

- to

dismiss stage. To the extent the majority ha s doubts
about r espondents’ complaint

— or factual or state

- law issues that may bear upon the existence of a property
interest— the more prudent course would be to vacate and
remand for the lower courts to consider those matters more fully. In any event, as I have explained, the best
course of all would be to affirm.

B
More fundamentally, the majority’s opinion erroneously fixates on a type of case that is not before us: one in which a private entity simply enters the marketplace and is then subject to gover nment regulation. The majority swings hard at the wrong pitch. The majority focuses on Jackson v. Metropolitan Edison
Co. , 419 U. S. 345 (1974) , which is a paradigmatic example of a line of cases that reject §1983 liability for private actors that simply operate against a regulatory backdrop.
Jackson emph asized that the “fact that a business is subject to state regulation does not by itself convert its
action into that of the State.” Id.

, at 350; accord, ante , at

12 . Thus, the fact that a utility compa ny entered the marketplace did not make it a state actor, even if it was highly regulated. See Jackson

, 419 U. S., at 358; accord,

—————— agreement “ re quires Time Warner to set aside” the channels, id ., at 22. While the complaint does not use the words “property interest,” those allegations can be read to include the idea that whatever was “set aside” or “dedicate[d],” id ., at 20, 22, qualified as a sufficient City property interest to support respondents’ assertion of a public forum.
Cf. People v. Brooklyn & Queens Transit Corp.

, 273 N. Y. 394, 400

– 401,
7 N. E. 2d 833, 835 ( 1937 ) (discussing dedications of property to public use); cf. als o Denver Area Ed. Telecommunications Consortium, Inc. v. FCC , 518 U. S. 727, 794 (1996) (Kennedy, J., concurring in part, co ncurring in judgment in part, and dissenting in part) (noting this theory).16 MANHATTAN COMMUNITY ACCESS CORP. v. HALLECK

S OTOMAYOR

, J. , dissenting

ante , at 12

– 13. The same rule holds, of course, for private comedy clubs and grocery stores. See ante , at 9. 11
The Jackson line of cases is inapposite here. MNN is not a private entity that simply ventured into the marke tplace. It occupies its role because it was asked to do so by the City, which secured the public

- access channels in exchange for giving up public rights of way, opened those channels up (as required by the State) as a public forum, and then deputized MNN to administer them. That di stinguishes MNN from a private entity that simply sets up shop against a regulatory backdrop. To say that MNN is nothing more th an a private organization regulated by the government is like saying that a waiter at a restaurant is

——————

11 There was a time when this Court’s precedents may have portended the kind of First Amendment liability for purely private property owners that the majority spends so much time rejecting. See Marsh v. Alabama , 326 U. S. 501, 505

– 509 (1946) (treating a comp any

- owned town as subject to the First Amendment); Food Employees v. Logan Valley Plaza

, Inc. , 391 U. S. 308, 315

– 320, and n. 9, 325 (1968) (exten ding Marsh to cover a private shopping center to the extent that it sought to restrict speech about its busine sses). But the Court soon
stanched that trend. See Lloyd Corp. v. Tanner , 407 U. S. 551 , 561

– 567 (1972) (cabining Marsh and refusing to extend Logan Valley ); Hudgens

v. NLRB , 424 U. S. 507, 518 (1976) (making clear that “the rationale of Logan Valley did not survive” Lloyd ). Ever since, this Court has been reluctant to find a “public function” when it comes to “private comme rcial transactions” (even if they occur against a legal or regulatory backdrop), see, e.g., Flagg Bros.

, Inc. v. Brooks , 436 U. S. 1 49, 161

– 163 (1978) , instead requiring a closer connection between the private entity and a government or its agents, s ee, e.g. , Brentwood Academy v. Te nnessee Secondary School Athletic Assn. , 531 U. S. 288, 298 (2001) (nonprofit interscholastic athletic association “pervasive[ly] entwine[d]” with governmental institutions and officials); Lugar v. Edmondson Oil
Co. , 457 U. S. 922, 942 (1982) (state

- created system “whereby state officials [would] attach property on the ex parte application of one party to a private dispute”); see also Burton v. Wilmington Parking Authority

, 365 U. S. 715, 723

– 725 (1961) (restaurant in municipal parking garage partly maintained by municipal agency) ; accord, ante

, at 6– 7. Jackson exemplifi es the line of cases that supplanted cases like Logan Valley

— not cases like this one.Cite as: 587 U. S. ____ (20 19 ) 17

S OTOMAYOR

, J. , dissenting

an independent food seller who just happens to be highly regulated by the restaurant’s owners. The majority also relies on the Court’s statements that

it s “public function” test requires that a function have been “traditionally and exclusively performed” by the
government. Ante , at 6 (emphasis deleted); see Jackson

, 419 U. S., at 352. Properly understood, that rule cabins liability in cases, such as Jack son , in which a private actor ventures of its own accord into territory shared (or reg ulated) by the government ( e.g. , by opening a power com

pany or a shopping center). The Court made clear in West that the rule did not reach further, explaining that “t he fact that a state employee’s role parallels one in the pr ivate sector ” does not preclude a finding of state action.

487 U. S. , at 56, n. 15. When the government hires an agent, in other words, the question is not whether it hired the agent to do som et hing that can be done in the private marketplace too. If that were the key question, the doctor in West would not have been a state actor. Nobody thinks that orthopedics is
a function “traditionally exclusively reserved to the State,”
Jackson , 419 U. S., at 352. The majority consigns West to a footnote, asserting that its “scenario is not present here because the government has no [constitutional] obligation to operate public access
channels.” Ante , at 7, n. 1. The majority suggests that

West is different because “the State was constitutionally obligated to provide medical care to prison inmates.” Ante

, at 7, n. 1. But what the majority ignores is that the State

in West had no constitutional obligation to open the prison or incarcerate the pr isoner in the first place; the obligation to provide medical care arose when it made those prior
choices. The City had a comparable constitutional obligation
here

— one brought about by its own choices, made against

a state

- law backdrop. The City, of cours e, had no constit u-18 MANHATTAN COMMUNITY ACCESS CORP. v. HALLECK

S OTOMAYOR

, J. , dissenting

tional obligation to award a cable franchise or to operate public

- access channels

. But once the City did award a cable franchise, New York law required the City to obtain public

- acce ss channels , s ee supra , at 2 , and to open them

up as a public forum , see supra , at 9– 10. That is when the City’s obligation to act in accordance with the First Amendment with respect to the channels arose. That is why, when the City handed the administration of that forum off to an agent, the Constitution fo llowed. See

supra , at 10

– 13. 12 The majority is surely correct that “ when a private entity provides a forum for speech, the private entity is not ordinarily constrained by the First Amendment .”

Ante , at 9 . That is because the majority is not talking
abou t constitutional forums

— it is talking about spaces where private entities have simply invited others to come speak. A comedy club can decide to open its doors as wide as it wants, but it cannot appoint itself as a government
agent. The difference is betw een providing a service of one’s own accord and being asked by the government to administer a constitutional responsibility (indeed, here, existing to do so) on the government’s behalf. 13

——————

12 Jackson v. Metropolitan Edison Co ., 419 U. S. 345 (1974) , by co ntrast, exemplifies a type of case in which a private actor provides a service that there is no governmental obligation to provide at all. See

id ., at 353 (no state requirement for government to provide utility service); see also, e.g., Hudgens , 424 U. S. 507 (shopping center). In

West v. Atkins , 487 U. S. 42 (1988), by contrast, the prison was obli

gated to provide health care in accordance with the Eighth Amendment to its prisoners once it incarcerated them, and here, the City was required to provide a public forum to its residents in accordance with the First Amendment once it granted the cable franchise. See supra, at 11

– 13.

13 Accordingly, the majority need not fear that “ all private property owners and private lessees who open their property for speech [c] ould be subject to First Amendment constraints.” Ante

, at 10. Those kinds of entities are not the government’s agents; MNN is. Whether such entities face “extensive regulation” or require “ government licenses,
government contracts, or government

- granted mon o polies ,” ante , at 12,Cite as: 587 U. S. ____ (20 19 ) 19

S OTOMAYOR

, J. , dissenting

To see more clearly the difference between the cases on
which the ma jority fixates and the present case, leave aside the majority’s private comedy club. Imagine instead that a state college runs a comedy showcase each year, renting out a local theater and, pursuant to state regul ations mandating open access to certain kinds of student activities, allowing students to sign up to perform on a
first

- come, first

- served basis. Cf. Rosenberger v. Rector and Visitors of Univ. of Va. , 515 U. S. 819 (1995) . After a few years, the college decides that it is tired of running the
sh ow, so it hires a performing

- arts nonprofit to do the job. The nonprofit prefers humor that makes fun of a certain political party, so it allows only student acts that share its views to participate. Does the majority believe that the nonprofit is indist inguishable, for purposes of state action, from a private comedy club opened by local entrepreneurs? I hope not. But two dangers lurk here regardless. On the one hand, if the City’s decision to outsource the cha nnels to a private entity did render the F irst Amendment irrelevant, there would be substantial cause to worry about the potential abuses that could follow. Can a state university evade the First Amendment by hiring a nonprofit to apportion funding to student groups? Can a city do the same by appointing a corporation to run a munic ipal theater? What about its parks? On the other hand, the majority hastens to qualify its decision, see ante , at 7, n. 1, 15, and to cabin it to the specific facts of this case, ante , at 15. Those are prudent limitations. Even so, the majority’s focus on Jackson still risks sowing confusion among the lower courts about how and when government outsourcing will render any abuses that follow beyond the reach of the Constitution. In any ev ent, there should be no confusion here. MNN

—————— is immaterial, so long as they have not accepted the government’s request to fulfill the government’s duties on its behalf.20 MANHATTAN COMMUNITY ACCESS CORP. v. HALLECK

S OTOMAYOR

, J. , dissenting

is not a private entity that ventured into the marketplace and found itself subject to government regulation. It was asked to do a job by the government and compensated accordingly. If it does not want to do t hat job anymore, it can stop (subject, like any other entity, to its contractual obligations). But as long as MNN continues to wield the power it was given by the government, it stands in the government’s shoes and must abide by the First Amen dment like any other government actor.

IV
This is not a case about bigger governments and smaller individuals, ante , at 16; it is a case about principals and agents. New York City opened up a public forum on public

access channels in which it has a property interest . It asked MNN to run that public forum, and MNN accepted the job. That makes MNN subject to the First Amen dment, just as if the City had decided to run the public
forum itself. While the majority emphasizes that its decision is na rrow and factbound, a nte , at 15, that does not make it any less misguided. It is crucial that the Court does not co ntinue to ignore the reality, fully recognized by our prec edents, that private actors who have been delegated const itutional responsibilities like this one shou ld be accountable to the Constitution’s demands. I respectfully
dissent.