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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.

Pp. 20-23.

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

protecting children.

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 opinions:

Stevens, J.

Souter, J.

Concurring in part and dissenting in part

O'Connor, J.

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.


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