Oh my what a day! I’ve been geekin out on this SCOTUS case MCAC v. Halleck since I interviewed DeeDee Halleck last fall. It’s got big questions about who is an agent of the state, when does the 1st amendment apply and what constitutes a public forum. I took the Amtrak down yesterday. We were supposed to get into DC around 10:30, but as we were leaving Baltimore a “pedestrian struck, fatality” announcement stopped us. Ugh. Dread and foreboding— an ill-fated journey. So we ended up arriving at 2AM and I knew I had to get to the Supreme Court by 6 AM to get one of the 50-100 tickets offered to the public. I got a good nap in from 2:30-4:30.
This morning in DC featured a “gods must be angry” bitter wind complete with a tornado warning blaring from the Capitol. These bone chilling gusts added to the sense that my little adventure was cursed. 50 tickets were issued at 9:30. Another 10 were issued at 9:45. And just at 10AM, the final 10 of the day were handed out. By the time I sat down, court was already in session.
Striking to me: Breyer, Alito, Kagan, Kavanaugh and Sotomayor displayed highest levels of engagement. RGB went first and I actually missed her questioning. When court was adjourned, she took a long time getting out of her seat, and I felt the worry in my gut. Gorsuch looked down nearly the whole time and kept his hand over his eyes in such a way that it looked like he was trying to hide his identity. Roberts did his friendly umpire schtick and was a tough read. Thomas slumped so low in his seat at times that he was basically represented by his forehead. Not a peep from him or Gorsuch.
Background
First Amendment issues surfaced when Manhattan Neighborhood Network barred Dee Dee and Jesus Papaleto Melendez from the premises and channel of their local public access TV station. Tensions started when MNN pulled community outreach grants. So Halleck and Melendez went to a MNN board meeting to dispute the decision but were told it was not open to the public. As activists and media producers, they covered the opening of a second MNN studio and the resulting video, The 1% Visits El Barrio, was initially showed on the channel, but was subsequently pulled as MNN claimed that the video contained threatening language to MNN employees. Both producers were denied continued access to their local public access channel, Halleck for a year and Melendez for life.
Halleck and Melendez sued on First Amendment grounds and won in the Second Circuit Court of Appeals in February 2018. MNN argued that they are private entity that has a right to curate its content, and not a public forum that must remain open to all. The First Amendment limits the government’s ability to censor, so MNN would have to be “an agent of the state” in order to be liable. The Second Circuit found that MNN was in fact a state actor— It had government appointees on its Board, government mandated funding, and a “first come first serve” rule for content (i.e. no content curation policy).
Not-So-Live Blogging
Since the Supreme Court does not allow smartphones, I jotted madly in a notebook. I just finished typing my notes up and sent them off to the good people at The Alliance for Community Media. Hopefully they can read the tea leaves from my very rough outline of the exchanges. According to ACM, the audio transcript will not be released until Friday. Kind of an antiquated system.