(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 the 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 CORP. 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 public access. Those channels are operated by 

the cable operator unless the local government chooses to itself operate the channels or designates a private entity to operate the channels. New York City (the City) has designated a private nonprofit 

corporation, 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 public access channels. MNN televised the film. MNN later suspended 

Halleck and Melendez from all MNN services and facilities. The producers sued, claiming that MNN violated their First Amendment 

free-speech rights when it restricted their access to the public access 

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 editorial discretion. Reversing in relevant part, the Second Circuit concluded that MNN is a state actor subject to First Amendment constraints.

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, abridgment of speech. See, e.g., Denver 

Area Ed. Telecommunications Consortium, Inc. v. FCC, 518 U. S. 727, 

737. This 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 rele-
2 MANHATTAN COMMUNITY ACCESS CORP. v. HALLECK

Syllabus

vant here, the entity exercises “powers traditionally exclusively reserved to the State.” Jackson v. Metropolitan Edison Co., 419 U. S. 

345, 352. The Court has stressed that “very few” functions fall into 

that category. 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 and public actors have operated public access channels. Early 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 operate the channels. 

Operating public access channels on a cable system is not a traditional, 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, which, 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 governmental entities have traditionally performed. 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 operate the public 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 converts 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 property and that MNN is essentially 

managing government property on the City’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 franchise agreements between 

the City and Time Warner allowed the City to designate a private entity to operate the public access channels on Time Warner’s cable system. Nothing in the agreements 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. ____ (2019) 3 

Syllabus

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

 KAVANAUGH, J., delivered the opinion of the Court, in which ROBERTS, 

C. J., and THOMAS, ALITO, and GORSUCH, JJ., joined. SOTOMAYOR, J., 

filed a dissenting opinion, in which GINSBURG, BREYER, and KAGAN, JJ., 

joined.
Cite as: 587 U. S. ____ (2019) 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, Washington, 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] 

 JUSTICE KAVANAUGH delivered the opinion of the Court.

The Free Speech Clause of the First Amendment constrains 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 considered a state actor when it exercises a function “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 channels on Time Warner’s cable system 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 corporation known as MNN. The question here is whether 

MNN—even though 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 exercise 
2 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 operation 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 Reagan 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 regulates 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. Codes, Rules & 

Regs. §§895.1(f), 895.4(b) (2018). State law requires that 

use of the public access channels be free of charge and 
Cite 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 channels 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 York City (the City) has designated a 

private nonprofit corporation named Manhattan Neighborhood Network, commonly referred to as MNN, to operate Time Warner’s public access channels in Manhattan. 

This case involves a complaint against MNN regarding its 

management 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 Ashcroft v. Iqbal, 556 U. S. 662, 678 (2009).

DeeDee Halleck and Jesus Papoleto Melendez produced 

public 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 televised the film. Afterwards, MNN fielded multiple complaints about the film’s content. In response, MNN temporarily 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 freespeech rights when MNN restricted their access to the 
4 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 Lohier, the court 

stated that the public access channels in Manhattan are a 

public forum for purposes of the First Amendment. Reasoning that “public forums are usually operated by governments,” 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 traditionally public function of administering and regulating 

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 not 

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. Akron, 498 F. 3d 516 (CA6 2007); and Alliance for Community 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 . . . abridging the freedom of speech.” Ratified in 1868, the Fourteenth 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 shall 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 abridgment 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. IrishAmerican 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 Constitution, this Court’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 governmental 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 producers 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, the 
6 MANHATTAN COMMUNITY ACCESS CORP. v. HALLECK

Opinion of the Court

producers assert that MNN is nonetheless 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 performs 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 function 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 exclusively reserved to the State.” Jackson, 419 U. S., at 352. 

It is not enough that the federal, state, or local government 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 qualify 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 a 
Cite 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 category, including, for example: running sports associations 

and leagues, administering insurance payments, operating 

nursing homes, providing special 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. Tarkanian, 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 (special education); Polk 

County v. Dodson, 454 U. S. 312, 318–319 (1981) (public 

defender); Flagg Bros., 436 U. S., at 157–163 (private 

dispute resolution); Jackson, 419 U. S., at 352–354 (electric service). 

The relevant function in this case is operation of public 

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 have operated public access channels, includ-

—————— 

1Relatedly, this Court has recognized that a private entity may, under certain circumstances, be deemed a state actor when the government 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 organizations; municipalities; and other public and private community organizations such as churches, schools, and libraries. See Denver Area, 518 U. S., at 761–762 (plurality 

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 channels first started operating in Manhattan. See D. Brenner, 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 cable 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 public 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 generally the operation of a public 

forum for speech. And according to the producers, operation of a public forum for speech is a traditional, exclusive 

public function.

That analysis mistakenly ignores the threshold stateaction question. When the government provides a forum 
Cite 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 Promotions, Ltd. v. Conrad, 420 U. S. 546, 547, 555 (1975) 

(private theater leased to the city); Police Dept. of Chicago

v. Mosley, 408 U. S. 92, 93, 96 (1972) (sidewalks); Hague v. 

Committee for Industrial Organization, 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 private 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 

requirements 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 decision reflects a commonsense principle: 

Providing some kind of forum for speech is not an activity 

that only governmental entities have traditionally performed. Therefore, a private entity who provides a forum 

for speech is not transformed by that fact alone 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 explained, 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 not a traditional, exclusive public function and does not alone transform 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 speech 

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 owners 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 country.” 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

—————— 

2A distinct question not raised here is the degree to which the First 

Amendment protects private 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 Broadcasting System, Inc. v. FCC, 512 U. S. 622, 636–637 (1994). 3 In Cornelius v. NAACP 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 not 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 license, 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 monopoly 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 & Athletics, 483 U. S., at 543–544 

(exclusive-use rights and corporate charters); 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 licenses); Moose Lodge No. 107 v. Irvis, 

407 U. S. 163, 176–177 (1972) (liquor licenses); 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 JUSTICE THOMAS explained 

in Denver Area Educational Telecommunications Consortium, Inc. v.

FCC, the Court’s admittedly imprecise and overbroad phrase in Cornelius is not consistent with this Court’s case law and should 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 College v. Woodward, 4 Wheat. 518, 638–639 

(1819) (corporate charters). 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 government licenses, government contracts, or governmentgranted 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 subject to a variety of constitutional constraints on their activities. As this Court’s many stateaction 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 cable 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 programming must be aired on a first-come, first-served 

basis. Those regulations restrict MNN’s editorial discretion and in effect require MNN to operate almost like a 

common carrier. But under this Court’s cases, those restrictions do not render MNN 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 “extensive 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 the 
Cite 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 not 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 endanger individual liberty and private enterprise. The theory 

would be especially problematic in the speech context, 

because it could eviscerate certain private entities’ rights 

to exercise editorial control over speech and speakers on 

their properties or platforms. Not surprisingly, as 

JUSTICE THOMAS 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 public 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 contracts, 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 conclude 
14 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 exercises 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 property, 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 government 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 channels with its own facilities and equipment. The 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 franchise agreements between the City and Time Warner 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. App. 22. Moreover, the 

producers did not allege in their complaint that the City 

has a property interest in the channels. And the producers have not cited any basis in state law for such a conclusion. Put simply, the City does not have “any formal 
Cite 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 THOMAS, 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 Warner’s cable system. Time 

Warner still owns the cable system. And MNN still operates the public access channels. To reiterate, nothing in 

the franchise agreements suggests that the City possesses 

any property interest in Time Warner’s cable system, or in 

the 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 utility providers, such as the electric 

utility in Jackson. Put simply, a private entity’s permission 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 so in this case.

MNN is a private entity that operates public access 

channels on a cable system. Operating public access 

channels 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. ____ (2019) 1 

SOTOMAYOR, J., dissenting

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] 

 JUSTICE SOTOMAYOR, with whom JUSTICE GINSBURG,

JUSTICE BREYER, and JUSTICE KAGAN 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 

York City (the City) secured a property interest in publicaccess television channels when it granted a cable franchise to a cable company. State regulations require those 

public-access channels to be made open to the public on 

terms that render them a public forum. The City contracted out the administration of that forum to a private 

organization, petitioner Manhattan Community Access 

Corporation (MNN). By accepting that agency relationship, 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 com-
2 MANHATTAN COMMUNITY ACCESS CORP. v. HALLECK

SOTOMAYOR, J., dissenting

pany by a local government. 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 rights-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 firstcome, 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 obscenity 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 practice of other New York municipalities confirms, could have 

instead chosen to run the channels itself. See §895.4(c)(1); 

Brief for Respondents 35 (citing examples).

MNN is the independent nonprofit that the borough 

president appointed to run the channels; indeed, MNN 
Cite as: 587 U. S. ____ (2019) 3 

SOTOMAYOR, 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 arranged 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 channels, “[r]equired by state regulation and [the] local franchise agreements,” are “a designated public forum of 

unlimited character”; that the City had “delegated control 

of that public forum to MNN”; and that MNN had, in turn, 

engaged in viewpoint discrimination in violation of respondents’ 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 action barred by the First 

Amendment.” 882 F. 3d 300, 301–302 (2018). Because 

the case before us arises from a motion to dismiss, respondents’ 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

SOTOMAYOR, 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 all. 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 administration 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 precedents subdivide this broader category into various subcategories, 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 parks, traditional public forums), 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., Hastings College of Law v. Martinez, 561 U. S. 661, 669, 679, 

and n. 12 (2010) (program for registered student organizations, limited public forum). But while many cases turn 

on which type of “forum” is implicated, the important 

point here is that viewpoint discrimination is impermissible in them all. See Good News Club v. Milford Central 
Cite as: 587 U. S. ____ (2019) 5 

SOTOMAYOR, 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 Veterans, 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, 

there are purely private spaces, where the First Amendment 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 discrimination would be cognizable, or something else, such as government speech or purely private property, where picking 

favored viewpoints is appropriately commonplace.2 Neither MNN nor the majority suggests that this is an in-

—————— 

1That does not mean that no restrictions apply at all to the government’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. 2The 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 principles are applicable.” Rosenberger v. Rector 

and Visitors of Univ. of Va., 515 U. S. 819, 830 (1995) (treating “Student 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

SOTOMAYOR, 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 governmental 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 property 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 inappropriate where the government lacks a “significant property interest consistent with the communicative purpose of 

the forum.” Denver Area Ed. Telecommunications Consortium, Inc. v. FCC, 518 U. S. 727, 829 (1996) (THOMAS, 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 interest 

like the one here as similar to an easement. Although 

JUSTICE BREYER did not conclude that a public-access 

channel was indeed a public forum, he likened the cable 

—————— 

3As discussed below, it is possible that some (or even many) publicaccess 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 access. See 

infra, at 9–10, and n. 7. 
Cite as: 587 U. S. ____ (2019) 7 

SOTOMAYOR, 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 

appropriate analogy, id., at 793–794 (opinion concurring 

in part, concurring in judgment in part, and dissenting in 

part, joined by GINSBURG, J.), but also that “[p]ublic access 

channels meet the definition of a public forum,” id., at 791, 

“even though they operate 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 ‘bundle 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 property 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,

—————— 

4The parties have not pointed this Court to any New York law definitively establishing the status of the channels. But even 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 respondents (plaintiffs

below) at the motion to dismiss stage. See infra, at 12, n. 9, 14.
8 MANHATTAN COMMUNITY ACCESS CORP. v. HALLECK

SOTOMAYOR, 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 purposes. 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 question is how to understand 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 Advertising Co. of Minneapolis v. Lakeville, 532 N. W. 2d 249,

253 (Minn. 1995); see also Matter of XAR Corp. v. Di Donato, 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 

channels 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 channels. The channels are more intangible than a billboard, 

but no one believes that a right 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 “privileges, 
Cite as: 587 U. S. ____ (2019) 9 

SOTOMAYOR, J., dissenting

corporate franchises, contracts or obligations” as taxable 

property). And it is hardly unprecedented for a government to receive a right to transmit something over a private entity’s infrastructure in exchange for conferring 

something of value on that 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 consistent with what the Court would treat as a governmental 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 

different than receiving a right to place ads on another’s 

billboards. Those rights amount to a governmental property interest in the channels, and that property interest is 

clearly “consistent with the communicative purpose of the 

forum,” Denver Area, 518 U. S., at 829 (opinion of THOMAS, 

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 

—————— 

5For 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 appurtenances,” 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). 6Though the majority disagrees on the property question, I do not 

take it seriously to dispute that this point would follow. See ante, at 
10 MANHATTAN COMMUNITY ACCESS CORP. v. HALLECK

SOTOMAYOR, 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 forum.” See ibid. For

example, a state college might make its facilities open to 

student groups, or a municipality might open up an auditorium for certain public meetings. See id., 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. Codes, 

Rules & Regs. §895.4(c)(4); see also §§895.4(c)(8)–(9). The 

State, in other words, mandates 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 (“We 

do not prescreen videos. We—they come into the 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 Amendment by contracting out administration of that forum to a 

—————— 

14–15. 7New 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 constitutional forums. See 

Brief for Respondents 30–31; Brief for American Civil Liberties Union

et al. as Amici Curiae 13–15. New York’s scheme, however, is the only 

one before us.
Cite as: 587 U. S. ____ (2019) 11

SOTOMAYOR, 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 decision in West

v. Atkins, 487 U. S. 42 (1988). The Court in West unanimously 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,’” id., at 55. 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 incarcerated 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 obligated to provide and leave 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 different, the legal features are the same: When a government (1) makes a choice that triggers constitutional obligations, and then (2) contracts out those constitutional 
12 MANHATTAN COMMUNITY ACCESS CORP. v. HALLECK

SOTOMAYOR, J., dissenting

responsibilities to a private entity, that entity—in agreeing 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 publicaccess 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 available on a “firstcome, first-served, nondiscriminatory basis.”9 §895.4(c)(4). 

—————— 

8Governments are, of course, not constitutionally required to open 

prisons or public forums, but once they do either of these things, 

constitutional obligations attach. The rule that a government may not 

evade the Constitution by substituting a private administrator, meanwhile, is not a prison-specific rule. More than 50 years ago, for example, 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 institution subject to the command of the Fourteenth Amendment, regardless 

of who ha[d] title under state law.” Id., at 302. 9Accordingly, 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 choose its favorite submissions, for example, a different 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, firstserved, nondiscriminatory” scheduling requirement, 16 N. Y. Codes, 

Rules & Regs. §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 reasonable 

time, place, and manner provisions, which is consistent with administering any public forum. See Ward v. Rock Against Racism, 491 U. S. 

781, 791 (1989). As for any factual assertions about how the channels 
Cite as: 587 U. S. ____ (2019) 13

SOTOMAYOR, 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 constitutional duties to a private actor.

III

The majority acknowledges that the First Amendment 

could apply when a local government either (1) has a 

property 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 question 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 govern-

—————— 

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 vacate and remand, not reverse.
14 MANHATTAN COMMUNITY ACCESS CORP. v. HALLECK

SOTOMAYOR, J., dissenting

mental property interest here, ante, at 14–15, does not 

hold up. The majority focuses on the fact that “[b]oth 

Time Warner and MNN are private entities”; that Time 

Warner “owns its cable network, which contains the public 

access channels”; and that “MNN operates 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 operate the channels. 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 above, 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 simply describes the City’s appointment of MNN to administer

the channels. The majority also chides respondents for 

failing to “alleg[e] in their complaint that the City has a 

property interest in the channels,” ibid., but, fairly read, 

respondents’ complaint includes such an assertion.10 In 

—————— 

10Respondents 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 agreements require 

cable operators—as a condition for easements to use the public rightsof-way—to dedicate some channels for programming by the public,” id., 

at 20, invoked the state regulations requiring the designation of a 

channel here, id., at 21, and then alleged that the City’s franchise
Cite as: 587 U. S. ____ (2019) 15

SOTOMAYOR, J., dissenting

any event, any ambiguity or imprecision does not justify 

resolving the case against respondents at the motion-todismiss stage. To the extent the majority has doubts 

about respondents’ 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 government 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 emphasized 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 company 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 “requires 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. also Denver Area Ed. Telecommunications Consortium, Inc. v. 

FCC, 518 U. S. 727, 794 (1996) (Kennedy, J., concurring in part, concurring in judgment in part, and dissenting in part) (noting this

theory).
16 MANHATTAN COMMUNITY ACCESS CORP. v. HALLECK

SOTOMAYOR, 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 marketplace. 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 distinguishes MNN from a private entity that simply sets up 

shop against a regulatory backdrop. To say that MNN is 

nothing more than a private organization regulated by the 

government is like saying that a waiter at a restaurant is 

—————— 

11There 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 company-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) (extending Marsh to cover a private shopping center to the extent that it 

sought to restrict speech about its businesses). 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 commercial transactions” (even if they occur against a legal or regulatory 

backdrop), see, e.g., Flagg Bros., Inc. v. Brooks, 436 U. S. 149, 161–163 

(1978), instead requiring a closer connection between the private entity 

and a government or its agents, see, e.g., Brentwood Academy v. Tennessee 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

exemplifies the line of cases that supplanted cases like Logan Valley—

not cases like this one.
Cite as: 587 U. S. ____ (2019) 17

SOTOMAYOR, 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 

its “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 Jackson, in which a private actor 

ventures of its own accord into territory shared (or regulated) by the government (e.g., by opening a power company or a shopping center). The Court made clear in West 

that the rule did not reach further, explaining that “the 

fact that a state employee’s role parallels one in the private 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 something 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 prisoner 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 course, had no constitu-
18 MANHATTAN COMMUNITY ACCESS CORP. v. HALLECK

SOTOMAYOR, 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-access channels, see 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 followed. 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 

about 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 between 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

—————— 

12Jackson v. Metropolitan Edison Co., 419 U. S. 345 (1974), by contrast, 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 obligated 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. 13Accordingly, 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 monopolies,” ante, at 12, 
Cite as: 587 U. S. ____ (2019) 19

SOTOMAYOR, J., dissenting

To see more clearly the difference between the cases on 

which the majority 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 regulations 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 

show, 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 indistinguishable, 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 channels to a private entity did render the First 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 municipal 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 event, 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

SOTOMAYOR, 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 that 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 Amendment 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 publicaccess 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 Amendment, just as if the City had decided to run the public 

forum itself. 

While the majority emphasizes that its decision is narrow and factbound, ante, at 15, that does not make it any 

less misguided. It is crucial that the Court does not continue to ignore the reality, fully recognized by our precedents, that private actors who have been delegated constitutional responsibilities like this one should be 

accountable to the Constitution’s demands. I respectfully 

dissent.