Capitol Comments

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.”

Does one branch of a state legislature have “standing” to litigate a redistricting case? Not unless state law says so the Supreme Court ruled.    

More technically, in Virginia House of Delegates v. Golden Bethune-Hill, the Supreme Court held 5-4 that the Virginia House of Delegates lacks standing to appeal a ruling striking down Virginia’s redistricting plan because Virginia law does not allow it to displace the Attorney General and it is only a single chamber of a bicameral legislature.

After oral argument Court commentators predicated the Supreme Court wouldn’t overrule the “dual-sovereignty” doctrine. In a 7-2 decision in Gamble v. United States it didn’t. The State and Local Legal Center (SLLC) filed an amicus brief arguing for the result in this case.  

The Double Jeopardy Clause provides that no person may be “twice put in jeopardy” “for the same offence.” Per the “dual-sovereignty” doctrine the Supreme Court has long held that a “crime under one sovereign’s laws is not ‘the same offence’ as a crime under the laws of another sovereign.”

The Supreme Court held 6-3 in Virginia Uranium v. Warren that Virginia’s statute prohibiting uranium mining isn’t preempted by the federal Atomic Energy Act (AEA).

The State and Local Legal Center (SLLC) filed an amicus brief arguing for this result. The SLLC brief encouraged the Court to not inquire into the intent of the Virginia legislature in deciding whether the statute was preempted. Justice Gorsuch, writing for himself and Justices Thomas and Kavanaugh, went to such great length discussing “the perils of inquiring into legislative motive,” that Justices Ginsburg, joined by Justices Sotomayor and Kagan, only joined his plurality opinion as to its result (not its reasoning).

In McKinney v. Arizona James Erin McKinney wants the Arizona Supreme Court out of his death penalty case. More specifically, the Supreme Court will decide whether a jury rather than a judge must weigh the factors mitigating against imposing a death sentence when the law at the time he was convicted allowed a judge to weigh mitigating factors. The Court also has agreed to decide whether a trial court rather than an appellate court must correct the failure to weigh relevant mitigating factors.

A jury found McKinney guilty of first-degree murder related to two separate burglaries and murders committed in 1991. McKinney had PTSD from his “horrific” childhood but the Arizona Supreme Court disallowed the sentancer to consider non-statutory mitigating evidence (including family background and mental condition) unconnected to the crime. In 1996 the trial court found the evidence of PTSD to be unconnected to the crime and sentenced McKinney to death.

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