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Poet May Sue Public Access Company for Free Speech Violation, 2nd Cir. Rules

By William Vogeler, Esq. on February 13, 2018 5:57 AM

If it were the battle of the poet against the public access channel, then the poet won.

In Halleck v. Manhattan Community Access Corporation, a federal appeals court said the plaintiffs may sue a public access company for violating their free speech rights. East Harlem poet Jesus Papoleto Melendez and an activist sued after the company stopped a television show that nearly caused a fist-fight.

But the case also caused a split in the U.S. Second Court of Appeal, and that had little to do with poetry.

Majority Rules

In a 2-1 decision, the appeals court said public access channels are public forums entitled to protection under the First Amendment. The judges reversed and remanded the case to a trial court, which had dismissed it.

The trial judge, like other district courts in the circuit, had concluded public access channels are not public forums. The DC Circuit also reached the same conclusion in Alliance for Community Media v. F.C.C.

But the Second Circuit said public access channels are the "electronic marketplace of ideas." The majority said when government requires cable operators to open a public access channel that designates a private corporation to run it, that is a public forum.

The appeals panel affirmed the trial judge's decision dismissing the case against the city, however. There was no evidence the city had anything to do with the controversy, they said.

Minority Votes

Judge Dennis Jacobs said traditionally public forums are government property. Just because a private business opens space for community input doesn't make it a public forum, he reasoned.

"It is not, for instance, a bulletin board in a supermarket, devoted to the public's use, or a page in a newspaper reserved for readers to exchange messages, or a privately owned and operated computer network available to all those willing to pay the subscription fee," he wrote.

He said the majority conclusion "opens a split with the Sixth Circuit; considerably worse, it opens a split with the Second Circuit."

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