Legal Docket: Public access television and free speech

NICK EICHER, HOST: It’s Monday morning and a brand new work week for The World and Everything in It. Today is the 18th of March, 2019. Good morning to you, I’m Nick Eicher.

MARY REICHARD, HOST: And I’m Mary Reichard. Last week, the premier blog for all things Supreme Court released what it calls the “interim stat pack.”

SCOTUSblog is where you can geek out on fun numbers about the Court. It tracks votes, reversals of lower courts, things like that.

A few highlights at this point in the term, with six of the eight sittings behind us: On the scorecard of “wins,” the liberal wing of the court has the upper hand.

Chief Justice John Roberts agreed more often with the liberal-leaning justices than with the conservative-leaning ones.

Now, we do have to remember that only about a third of the rulings are in. Justice Brett Kavanaugh wasn’t on the court for some of the early cases. But it’s interesting to note that of the cases Justice Kavanaugh has voted on, he also agreed with the liberal justices more often than with the conservatives.

EICHER: Hm. Well, speaking of Trump judicial appointments, here’s a quick update on how this administration is shaping the federal courts below.

President Trump has now appointed twice the number of appeals court judges as did his two predecessors at the same point in their terms as president. At this point, he’s filled 20 percent of the appellate seats, 36 of 179 of them.

Of particular interest, the Third Circuit (that’s Delaware, New Jersey, and Pennsylvania) has flipped from majority Democrat-appointed judges to majority Republican.

It’s slower going at the circuit courts, although President Trump matches President Obama’s pace there.

But he has many, many more vacancies to fill at that level.

REICHARD: Today, the last of the arguments from February…

Up first, the case of an award-winning producer and a playwright banned from public-access television in Manhattan.

AUDIO: Hello and welcome to this edition of “Represent NYC” on Manhattan Neighborhood Network…

To hear DeeDee Halleck and Jesus Melendez tell it, Manhattan Neighborhood Network, MNN, censored them. The public-access cable channel banned them in retaliation for exercising their free-speech rights.

To hear MNN tell it, Halleck and Melendez aired content that contained “threatening language.” Crucially, MNN argues it’s a private entity, so a First Amendment analysis doesn’t apply. The constitution protects citizens from government censorship of speech.

So the debate came down to this: Is a public-access channel rightly considered akin to a sidewalk or a park, where the right to speak freely is protected?

Or is a public access channel more like a private business, where speaking freely is not protected?

MNN’s lawyer, Michael De Leeuw, laid out all the ways the public access channel is distinguished from government.

DE LEEUW: MNN is a private, non-profit company. Its board is not controlled by the City of New York. There are no allegations that MNN acted jointly with the City of New York… MNN doesn’t perform a function that has traditionally and exclusively been carried out by the City of New York.

In other words, De Leeuw advocated for bright, clear lines drawn between his client and government. Keep things simple that way.

But Justice Ruth Bader Ginsburg saw room to debate just how insulated MNN really is from government.

GINSBURG: But MNN was engaged by the city to administer a scheme that was determined by state and city law, giving MNN no independent judgment about what will air or when it will air…

Lawyer Paul Hughes argued on behalf of the banned producer and playwright. Of course public-access channels are a public forum. It’s right there in the name, and therefore must abide by free speech protections.

HUGHES: New York has a general access policy. This is its first-come, first-serve policy. And I think the critical feature here is that MNN lacks discretion, that it cannot decline to run content that is protected by the First Amendment. 

Some context here is useful.

Another high-profile case with allegations of censorship involved YouTube and Google blocking conservative content. Talk show host Dennis Prager sued the platforms for censoring his conservative videos.

But last year, a court dismissed Prager’s claim, ruling YouTube and Google aren’t “state actors,” and therefore not subject to First Amendment scrutiny.

Are public-access channels the same?

Justice Stephen Breyer tried to sort out the different threads with a sort of scorecard: where is government entangled, where is it not?

Here he addresses Hughes, lawyer for the banned producer and playwright who wants free-speech protections:

BREYER: ….want to be sure I’m not missing something. That these are the features that lead someone to say it’s not governmental, or it is. One: the basic obligation is created by law. That’s on your side. All right. Two, there are two appointed public directors, but there are 11 who are not and are members of the community. That seems to cut against you.

Three, it’s paid for — the cost is paid for by the private entity but under government compulsion. I don’t know. I think that cuts for you. Four, that there isn’t much discretion in respect to what they run, but there is some. They can decide subject matters as long as they give people a fair chance.

The justices were all over the place on this, so I’ll not venture a guess as to how it’ll turn out.

The final case today concerns supervised release.

“Supervised release” is a period of oversight after someone has already served prison time. If that person violates the terms of supervised release during the period, he can be sent back to prison.

Here’s the question: Does that time period run like a game clock for a hockey or basketball game, with stoppages? Or does it run more like soccer timekeeping, that is to say, continuously, no stoppages?

To the point, does the supervised-release time clock continue to run while a person is in custody for a second round of offenses?

Here’s the issue: Jason Mont served several years for drug crimes, followed by five years of supervised release. In the fourth year, he got into trouble again. That led to a different, six-year prison sentence.

But by time the new sentence came around, his says his time in supervised release had expired.

So Mont argues that the court had no jurisdiction to continue with that supervision from the first go-round of crimes.

Mont’s lawyer, Vanessa Malone, argued the pertinent law favors her client:

MALONE: When Congress uses plain, ordinary words in a statute, the words should be read accordingly… By interchanging “imprisonment” with “official detention,” the purpose and meaning of the provision reaches beyond the intent of Congress…

The law says the time clock stops running on supervised release “during a period in which a person is imprisoned in connection with another conviction…” The present tense of that matters, and imprisonment is very different from official detention. Justice Samuel Alito seemed incredulous.

ALITO: — suppose somebody is sentenced to five years in prison and has been in — in detention for one year, and the judge says I’m sentencing you to five years in prison, but I’m giving you credit for the year in which you were detained prior to trial. Isn’t that person imprisoned during that — that first year?

MALONE: No, Your Honor. The person is officially detained during the first year. 

Justice Sotomayor lent her support to Malone’s argument. She delved into the purposes of the various ways government takes away someone’s physical freedom.

SOTOMAYOR: I thought the purposes of pretrial detention were for security issues. We’re protecting the community from the danger the defendant may pose, correct?

MALONE: That’s correct.

SOTOMAYOR: And so I’m assuming your argument is that that period of safety is not a period for conviction; the credit is just a credit; it’s not the purpose for the detention?

MALONE: Yes, Your Honor, that is exactly the point. Because, when a person is in official detention, they are being held because they are seen as either a flight risk or a risk to the danger of the community. When a person is imprisoned, on the other hand, the four reasons for imprisonment is punishment, retribution, rehabilitation, and incapacitation.

Assistant to the Solicitor General Jenny Ellickson offered an alternative: Pausing supervised release time only after Mont pleaded guilty to the second wave of crimes. The government took him into custody and out of supervised release while he awaited the new sentence.

But that didn’t go so well. Some justices pointed out that wasn’t brought up in the lower courts, so it’s little late now.

Justice Neil Gorsuch may have tipped his hand on the eventual ruling in this exchange with Ellickson.

GORSUCH: Or we could remand it, right? 

ELLICKSON: The Court can certainly do whatever the Court wants to do. [Laughter]

GORSUCH: And I was just — I was just giving you an opportunity to tell me why we wouldn’t do that. But, if you don’t want to, that’s okay.

ELLICKSON: No, no, I’m — I’m — I–I would say that the Court–I would–I would urge the Court to decide the question because it is —

GORSUCH: Even if you lose that one too?

ELLICKSON: Well, maybe — maybe —

GORSUCH: Maybe not then. [Laughter]

More than maybe. I’d say this looks like a definite win for Mont, the inmate. And that’s this week’s Legal Docket.

(AP Photo/Susan Walsh) A view of the Supreme Court in Washington, Friday, March 15, 2019. 

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