Free Speech

May a private entity running a public access channel ban speakers based on the content of their speech—something a government entity running the same channels could not do? Yes, the Supreme Court held in a 5-4 opinion in Manhattan Community Access Corporation v. Halleck. Why? Because the First Amendment doesn’t apply to private entities in this instance.

The Cable Communications Policy Act of 1984 authorizes states and local governments to require cable operators to set aside channels on their cable systems for public access. Under New York law the cable operator operates the public access channels unless the local government chooses to do so or designates a private entity to do so.

New York City designated a private nonprofit, Manhattan Neighborhood Network (MNN), to operate the public access channels in Manhattan. MNN suspended two producers from its facilities and services after MNN ran a film they produced about MNN’s alleged neglect of the East Harlem community. The producers claimed 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.”

It has been three cases and nearly a decade in the making but the Supreme Court has finally ruled in Nieves v. Bartlett that the existence of probable cause defeats a First Amendment retaliatory arrest case…with one, small caveat. The State and Local Legal Center (SLLC) filed an amicus brief in favor of the broader ruling in this case.

While police officer Luis Nieves and Russell Bartlett have different versions of what happened at Artic Man, a weeklong winter sports festival in Alaska, even the Ninth Circuit agreed that Sergeant Nieves had probable cause to arrest Bartlett. Sergeant Nieves knew Bartlett had been drinking and talking loudly when he saw Bartlett stand close to another officer and the officer push Bartlett away. But Bartlett claimed Sergeant Nieves really arrested him in violation of his First Amendment free speech rights because he had refused to speak to Sergeant Nieves previously, which Bartlett reminded Sergeant Nieves of when he was being arrested.

The Supreme Court decides numerous difficult cases each term. It may be surprising that no issue has vexed the Court like whether probable cause to arrest someone means they can’t bring a First Amendment retaliation case. In Nieves v. Bartlett the State and Local Legal Center (SLLC) argues in an amicus brief (for the third time) that probable cause defeats First Amendment retaliation claims.   

Russell Bartlett was attending Arctic Man, an Alaskan snowmobile race, when he declined to talk to Police officer Luis Nieves who was patrolling the large outdoor party. Officer Nieves later observed Bartlett yelling at a separate officer, Bryce Weight, and Weight pushing Bartlett away. Believing Bartlett posed a danger to Officer Weight, Officer Nieves arrested Bartlett. Bartlett alleges that Nieves said “bet you wish you had talked to me now” in the process of the arrest.

Bartlett sued Officer Nieves claiming Nieves arrested him in retaliation for his refusal to initially speak to Nieves in violation of the First Amendment. The district concluded there was probable cause to arrest Bartlett. All federal circuit courts to decide this issue except the Ninth Circuit have held that to bring a First Amendment retaliatory arrest case plaintiffs must be able to prove the absence of probable cause to arrest them, which Bartlett could do not in this case.

The Supreme Court held 5-4 in Janus v. AFSCME that state statutes allowing public sector employers and unions to agree that employees who don’t join the union must still pay their “fair share” of collective bargaining costs violate the First Amendment. The Court also held that employees must “affirmatively consent” to join the union. More than 20 states authorize “fair share” for public sector employees.

In Abood v. Detroit Board of Education (1977) the Supreme Court held that the First Amendment does not prevent “agency shop” arrangements where public employees who do not join the union are still required to pay their “fair share” of union dues for collective-bargaining, contract administration, and grievance-adjustment. In Janus, the Supreme Court overruled Abood.

In a 5-4 decision in National Institute of Family and Life Advocates v. Becerra, the Supreme Court ruled that a California law requiring licensed pregnancy clinics to disclose they don’t offer abortions and unlicensed pregnancy clinics to disclose the fact they are unlicensed likely violates the First Amendment. The State and Local Legal Center (SLLC) filed an amicus brief in this case asking the Court not to apply the highest level of scrutiny (strict scrutiny) to commercial speech or to every disclosure requirement adopted by states and local governments.

California law requires that “licensed covered facilities” that provide family planning or pregnancy-related services must disseminate a notice stating that publicly-funded family planning services, including contraception and abortion, are available. It also requires “unlicensed covered facilities” to disseminate a notice they are unlicensed. The author of the law noted there are nearly 200 licensed and unlicensed crisis pregnancy centers in California. These centers “aim to discourage and prevent women from seeking abortions.”

The National Institute of Family and Life Advocates (NIFLA) operates licensed and unlicensed covered facilities that don’t offer abortions. It argues these requirements violate its First Amendment right to free speech.

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