First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The Court has recognized that cable television “implicates First Amendment interests,” because a cable operator communicates ideas through selection of original programming and through exercise of editorial discretion in determining which stations to include in its offering.1 Moreover, “settled principles of . . . First Amendment jurisprudence” govern review of cable regulation; cable is not limited by “scarce” broadcast frequencies and does not require the same less rigorous standard of review that the Court applies to regulation of broadcasting.2 Cable does, however, have unique characteristics that can justify regulations singling out cable for special treatment.3 The Court in Turner Broadcasting System v. FCC4 upheld federal statutory requirements that cable systems carry local commercial and public television stations. Although these “must-carry” requirements “distinguish[ed] between speakers in the television programming market,” they did so based on the manner of transmission and not on the content the messages conveyed, and hence were content-neutral.5 The regulations could therefore be measured by the “intermediate level of scrutiny” set forth in United States v. O’Brien.6 Two years later, however, a splintered Court could not agree on what standard of review to generally apply to content-based restrictions of cable broadcasts. Striking down a requirement that cable operators must, in order to protect children, segregate and block programs with patently offensive sexual material, a plurality opinion in Denver Area Educational Telecommunications Consortium v. FCC,7 found it unnecessary to determine whether strict scrutiny or some lesser standard applies, because it deemed the restriction invalid under any of the alternative tests. The plurality8 rejected assertions that public forum analysis,9 or a rule giving cable operators’ editorial rights “general primacy” over the rights of programmers and viewers,10 should govern.

Subsequently, in United States v. Playboy Entertainment Group, Inc.,11 the Supreme Court made clear, as it had not in Denver Consortium, that strict scrutiny applies to content-based speech restrictions on cable television. The Court struck down a federal statute designed to “shield children from hearing or seeing images resulting from signal bleed,” which refers to blurred images or sounds that come through to non-subscribers.12 The statute required cable operators, on channels primarily dedicated to sexually oriented programming, either to scramble fully or otherwise fully block such channels, or to not provide such programming when a significant number of children are likely to be viewing it, which, under an FCC regulation meant to transmit the programming only from 10 p.m. to 6 a.m. The Court found that, even without “discount[ing] the possibility that a graphic image could have a negative impact on a young child,” it could not conclude that Congress had used “the least restrictive means for addressing the problem.” 13 Congress in fact had enacted another provision that was less restrictive and that served the government’s purpose. This other provision required that, upon request by a cable subscriber, a cable operator, without charge, fully scramble or otherwise fully block any channel to which a subscriber does not subscribe.14

Footnotes

1

City of Los Angeles v. Preferred Commc’ns, 476 U.S. 488 (1986) (leaving for future decision how the operator’s interests are to be balanced against a community’s interests in limiting franchises and preserving utility space); Turner Broad. System v. FCC, 512 U.S. 622, 636 (1994).

2

Id. at 638–39 (1994).

3

Id. at 661 (referring to the “bottleneck monopoly power” exercised by cable operators in determining which networks and stations to carry, and to the resulting dangers posed to the viability of broadcast television stations). See also Leathers v. Medlock, 499 U.S. 439 (1991) (application of state gross receipts tax to cable industry permissible even though other segments of the communications media were exempted).

4

512 U.S. 622 (1994).

5

Id. at 645. “Deciding whether a particular regulation is content-based or content-neutral is not always a simple task,” the Court confessed. Id. at 642. Indeed, dissenting Justice Sandra Day O’Connor, joined by Justices Antonin Scalia, Ruth Bader Ginsburg, and Clarence Thomas, viewed the rules as content-based. Id. at 674–82.

6

391 U.S. 367, 377 (1968). The Court remanded Turner for further factual findings relevant to the O’Brien test. On remand, the district court upheld the must-carry provisions, and the Supreme Court affirmed, concluding that it “cannot displace Congress’s judgment respecting content-neutral regulations with our own, so long as its policy is grounded on reasonable factual findings supported by evidence that is substantial for a legislative determination.” Turner Broad. System, 520 U.S. at 224 (1997).

7

518 U.S. 727, 755 (1996) (invalidating § 10(b) of the Cable Television Consumer Protection and Competition Act of 1992). The Court upheld § 10(a) of the Act, which permitted cable operators to prohibit indecent material on leased access channels; and struck down § 10(c), which permitted a cable operator to prevent transmission of “sexually explicit” programming on public access channels. In upholding § 10(a), Justice Stephen Breyer’s plurality opinion cited FCC v. Pacifica Foundation, 438 U.S. 726 (1978), and noted that cable television “is as ‘accessible to children’ as over-the-air broadcasting, if not more so.” 518 U.S. at 744.

8

This section of Justice Stephen Breyer’s opinion was joined by Justices John Paul Stevens, Sandra Day O’Connor, and David Souter. Id. at 749.

9

Justice Anthony Kennedy, joined by Justice Ruth Bader Ginsburg, advocated this approach, Id. at 791, and took the plurality to task for its “evasion of any clear legal standard.” Id. at 784.

10

Justice Thomas, joined by Chief Justice William Rehnquist and Justice Antonin Scalia, advocated this approach.Id.

11

529 U.S. 803, 813 (2000).

12

Id. at 806.

13

Id. at 826–27. The Court stated: “Even upon the assumption that the government has an interest in substituting itself for informed and empowered parents, its interest is not sufficiently compelling to justify this widespread restriction on speech.” Id. at 825.

14

47 U.S.C. § 560.