SUPREME COURT OF THE UNITED STATES
DENVER AREA EDUCATIONAL TELECOMMUNICATIONS CONSORTIUM, INC., et al. v. FEDERAL COMMUNICATIONS COMMISSION et al. (USSC 1996)
Docket 95-124 -- Decided June 28, 1996
The U.S. Supreme Court held that a section of the Cable Television Consumer Protection Act of 1992 requiring cable systems operators to block "indecent"content on leased-access cable channels unless a viewer requested it, and a section encouraging cable operators to prohibit indecent programming on public-access channels violated the First Amendment; but upheld a section encouraging cable operators to prohibit indecent programming on leased-access channels.
Decided shortly after a three-judge panel found indecency provisions regulating the Internet unconsititutional, the case suggests that the Supreme Court may not embrace the logic of the panel in ACLU v. Reno. While the panel placed great weight on the unique characteristics of the Internet, the Supreme Court seems to less concerned about the technological differences between media.
The clear lack of consensus in this case continues to demonstrate the lack a clear understanding of or appreciation for free speech on the current Court.
These cases involve three sections of the Cable Television
Consumer Protection and Competition Act of 1992 (Act), as
implemented by Federal Communications Commission (FCC)
regulations. Both 10(a) of the Act -- which applies to leased
access channels reserved under federal law for commercial lease
by parties unaffiliated with the cable television system
operator -- and 10(c) -- which regulates public-access
channels required by local governments for public, educational,
and governmental programming -- essentially permit the operator to
allow or prohibit programming that it "reasonably believes . . .
depicts sexual . . . activities or organs in a patently
offensive manner." Under 10(b), which applies only to leased
access channels, operators are required to segregate "patently
offensive" programming on a single channel, to block that channel
from viewer access, and to unblock it (or later to reblock it)
within 30 days of a subscriber's written request. Between 1984,
when Congress authorized municipalities to require operators to
create public access channels, and the Act's passage, federal
law prohibited operators from exercising any editorial control
over the content of programs broadcast over either type of
access channel. Petitioners sought judicial review of 10(a),
(b), and (c), and the en banc Court of Appeals held that all
three sections (as implemented) were consistent with the First
The judgment is affirmed in part and reversed in part. 56 F.3d
105, affirmed in part and reversed in part.
Justice Breyer delivered the opinion of the Court with respect
to Part III, concluding that 10(b) violates the First Amendment.
That section's "segregate and block" requirements have obvious
speech-restrictive effects for viewers, who cannot watch programs
segregated on the "patently offensive" channel without
considerable advance planning or receive just an occasional few
such programs, and who may judge a program's value through the
company it keeps or refrain from subscribing to the segregated
channel out of fear that the operator will disclose its
subscriber list. Moreover, 10(b) is not appropriately tailored
to achieve its basic, legitimate objective of protecting
children from exposure to "patently offensive" materials. Less
restrictive means utilized by Congress elsewhere to protect
children from "patently offensive" sexual material broadcast on
cable channels indicate that 10(b) is overly restrictive while
its benefits are speculative. These include some provisions of
the Telecommunications Act of 1996, which utilizes blocking
without written request, "V-chips," and other significantly less
restrictive means, and the "lockbox" requirement that has been in
place since the Cable Act of 1984. Pp. 23-30.
Justice Breyer, joined by Justice Stevens, Justice O'Connor, and
Justice Souter, concluded in Parts I and II that 10(a) is
consistent with the First Amendment. Pp. 6-23.
(a) Close scrutiny demonstrates that 10(a) properly addresses a
serious problem without imposing, in light of the relevant
competing interests, an unnecessarily great restriction on
speech. First, the section comes accompanied with the extremely
important child protection justification that this Court has
often found compelling. See, e.g., Sable Communications of Cal.,
Inc. v. FCC, 492 U.S. 115, 126. Second, 10(a) arises in a very
particular context-congressional permission for cable operators
to regulate programming that, but for a previous Act of
Congress, would have had no path of access to cable channels
free of an operator's control. The First Amendment interests
involved are therefore complex, and require a balance between
those interests served by the access requirements themselves
(increasing the availability of avenues of expression to
programmers who otherwise would not have them), see H. R. Rep.
No. 98-934, pp. 31-36 (1984), and the disadvantage to the First
Amendment interests of cable operators and other programmers
(those to whom the operator would have assigned the channels
devoted to access). See Turner Broadcasting System, Inc. v. FCC,
512 U.S. ___, ___. Third, the problem 10(a) addresses is
analogous to the indecent radio broadcasts at issue in FCC v.
Pacifica Foundation, 438 U.S. 726, and the balance Congress
struck here is commensurate with the balance the Court approved
in that case. Fourth, 10(a)'s permissive nature means that it
likely restricts speech less than, not more than, the ban at
issue in Pacifica. The importance of the interest at stake here-
protecting children from exposure to patently offensive
depictions of sex; the accommodation of the interests of
programmers in maintaining access channels and of cable
operators in editing the contents of their channels; the
similarity of the problem and its solution to those at issue in
Pacifica; and the flexibility inherent in an approach that
permits private cable operators to make editorial decisions,
persuasively establishes that 10(a) is a sufficiently tailored
response to an extraordinarily important problem involving a
complex balance of interests. Sable, supra, at 128, and Turner,
supra, at ___, distinguished. Pp. 6-18.
(b) Petitioners' reliance on this Court's "public forum" cases is
unavailing. It is unnecessary and unwise to decide whether or
how to apply the public forum doctrine to leased access
channels. First, it is not clear whether that doctrine should be
imported wholesale into common carriage regulation of such a new
and changing area. Second, although limited public forums are
permissible, the Court has not yet determined whether the
decision to limit a forum is necessarily subject to the highest
level of scrutiny, and these cases do not require that it do so
now. Finally, and most important, the features that make 10(a)
an acceptable constraint on speech also make it an acceptable
limitation on access to the claimed public forum. Pp. 18-20.
(c) Section 10(a)'s definition of the materials it regulates is
not impermissibly vague. Because the language used is similar to
that adopted in Miller v. California, 413 U.S. 15, 24, as a
"guidelin[e]" for state obscenity laws, it would appear to
narrow cable operators' program-screening authority to materials
that involve the same kind of sexually explicit materials that
would be obscene under Miller, but that might have serious
literary, artistic, political or scientific value" or nonprurient
purposes, ibid. That the definition is not overly broad is
further indicated by this Court's construction of the phrase -
patently offensive,see Pacifica, supra, at 748, 750, which would
narrow the category late at night when the audience is basically
adult, and by the fact that 10(a) permits operators to screen
programs only pursuant to a -written and published policy.The
definition's -reasonabl[e] belie[f]qualifier seems designed to
provide a legal excuse for the operator's honest mistake, and it
constrains the operator's discretion as much as it protects it.
Justice Breyer, joined by Justice Stevens and Justice Souter,
concluded in Part IV that 10(c) violates the First Amendment.
Section 10(c), although like 10(a) a permissive provision, is
different from 10(a) for four reasons.
First, cable operators have not historically exercised editorial control
over public access channels, such that 10(c)'s restriction on programmers'
capacity to speak does not effect a countervailing removal of a
restriction on cable operators' speech.
Second, programming on
those channels is normally subject to complex supervisory
systems composed of both public and private elements, and 10(c)
is therefore likely less necessary to protect children.
Third, the existence of a system that encourages and secures
programming that the community considers valuable strongly
suggests that a "cable operator's veto" is more likely to
erroneously exclude borderline programs that should be
broadcast, than to achieve the statute's basic objective of
Fourth, the Government has not shown that
there is a significant enough problem of patently offensive
broadcasts to children, over public access channels, that
justifies the restriction imposed by 10(c). Consequently, 10(c)
violates the First Amendment. Pp. 31-37.
Justice Kennedy, joined by Justice Ginsburg, concurred in the
judgment that 10(c) is invalid, but for different reasons.
Because the public access channels regulated by 10(c) are
required by local cable franchise authorities, those channels
are "designated public forums," i.e., property that the
government has opened for expressive activity by the public.
International Soc. for Krishna Consciousness, Inc. v. Lee, 505
U.S. 672, 678. Section 10(c) vests the cable operator with a
power under federal law, defined by reference to the content of
speech, to override the franchise agreement and undercut the
public forum the agreement creates. Where the government thus
excludes speech from a public forum on the basis of its content,
the Constitution requires that the regulation be given the most
exacting scrutiny. See, e.g., ibid. Section 10(c) cannot survive
strict scrutiny. Although Congress has a compelling interest in
protecting children from indecent speech, see, e.g., Sable
Communications, 492 U.S., at 126, 10(c) is not narrowly tailored
to serve that interest, since, among other things, there is no
basis in the record establishing that 10(c) is the least
restrictive means to accomplish that purpose. See, e.g., Sable
Communications, supra, at 128-130. The Government's argument for
not applying strict scrutiny here, that indecent cablecasts are
subject to the lower standard of review applied in FCC v.
Pacifica Foundation, 438 U.S. 726, 748, is not persuasive, since
that lower standard does not even apply to infringements on the
liberties of cable operators, Turner Broadcasting System, Inc.
v. FCC, 512 U.S. __, __. There is less cause for a lower
standard when the rights of cable programmers and viewers are at
stake. Pp. 2-5, 12-16, 24-31.
Justice Thomas, joined by The Chief Justice and Justice Scalia,
agreed that 10(a) is constitutionally permissible. Cable
operators are generally entitled to much the same First
Amendment protection as the print media. Turner Broadcasting
System, Inc. v. FCC, 512 U.S. __, __, __. Because Miami Herald
Publishing Co. v. Tornillo, 418 U.S. 241, and Pacific Gas &
Elec. Co. v. Public Util. Comm'n of Cal., 475 U.S. 1, are
therefore applicable, see Turner, supra, at __ (O'Connor, J.,
concurring in part and dissenting in part), the cable operator's
editorial rights have general primacy under the First Amendment
over the rights of programmers to transmit and of viewers to
watch. None of the petitioners are cable operators; they are all
cable viewers or access programmers or their representative
organizations. Because the cable access provisions are part of a
scheme that restricts operators' free speech rights and expands
the speaking opportunities of programmers who have no underlying
constitutional right to speak through the cable medium, the
programmers cannot challenge the scheme, or a particular part of
it, as an abridgment of their freedom of speech. Sections 10(a)
and (c) merely restore part of the editorial discretion an
operator would have absent Government regulation. Pp. 1-15.
Judgment of the Court:
Breyer, J., announced the judgment of the Court and delivered
the opinion of the Court with respect to Part III, in which
Stevens, O'Connor, Kennedy, Souter, and Ginsburg, JJ., joined,
an opinion with respect to Parts I, II, and V, in which Stevens,
O'Connor and Souter, JJ., joined, and an opinion with respect to
Parts IV and VI, in which Stevens and Souter, JJ., joined.
Concurring in part and dissenting in part
Kennedy, J., which Ginsburg, J., joined.
Thomas, J., which Rehnquist, C. J., and Scalia, J., joined.
The complete text is available from the Legal Information Institute at Cornell University School of Law.