HippoPress, LLC v. SMG d/b/a/SMG Operations & a.

No. 2002-786
Monday, December 8, 2003
In this case, the Verizon Wireless Arena facility manager, SMG, along with the City of Manchester and the Union Leader, appealed a superior court ruling that SMG had violated the First Amendment of the U.S. Constitution and the similar Part I, Article 22 of the New Hampshire Constitution by not allowing HippoPress to distribute its newspaper at the arena.

SMG, on behalf of the arena, entered into an exclusive contract with the Union Leader to sell and distribute its newspaper within the arena. Due to this agreement, SMG denied a HippoPress request to sell its paper at the arena.

HippoPress sought a court order restraining SMG from excluding it from the arena, arguing that SMG was violating the free speech rights guaranteed Hippo under the federal and state constitutions. The superior court denied the request, finding that SMG was properly regulating access to the building since the regulation was reasonable and not an effort to suppress a speaker’s point of view. However, at the subsequent trial, the superior court found that by contracting with the Union Leader, SMG changed the arena from a non-public forum to a designated public forum necessitating the more stringent standard of review applicable in such cases.

The court found that SMG’s conduct violated the constitution because the exclusive contract was not a reasonable regulation and it foreclosed other opportunities for expression. SMG appealed to the New Hampshire Supreme Court.

A basic review of constitutional analysis is helpful in understanding the holding of this case. In order to even consider whether there has been a violation of the federal or state constitutions a court must first find that there has been “state action” sufficient to trigger constitutional protections. “State action” describes when a state or governmental entity or its agent acts. In some cases (as was contended in this case) state action may be attributed to a private actor. To find state action even when the actor is a private entity or party the plaintiff must show:

  • financial or regulatory nexus between the private actor and the government;
  • the private actor assumed a traditionally public function; or
  • a symbiotic relationship between the private actor and the government.

In this case the trial court found that there was, in fact, state action attributable to SMG that would give rise to a constitutional claim and a constitutional analysis of the facts. The trial court concluded that SMG’s actions violated the constitution. On appeal the Supreme Court analyzed the relationship between SMG and the City of Manchester and concluded that the relationship did not fall into any of the three above-mentioned categories of state action. The Court reversed the trial court’s finding, concluding that there was no state action attributable to SMG under the facts and thus there was no sustainable claim of violation of the New Hampshire or U.S. Constitution.

The Court also said that even if state action was attributed to SMG, SMG could still properly exclude HippoPress. Differing from the conclusion reached by the trial court, the Supreme Court found the Verizon Arena to be a nonpublic forum and the contract to be a reasonable restriction of speech in that forum. The Court articulated the standards for determining what type of forum exists in a particular situation and how speech may be regulated in that type of forum.