Government attempts to extend access rights to cable television systems have faced First Amendment challenges. In Turner Broadcasting System, Inc. v. FCC, the Supreme Court upheld federal statutory requirements that cable systems carry local broadcast television stations.1 The Court determined in an earlier case that these “must-carry” requirements were content-neutral2 and therefore would be subject to intermediate scrutiny, which requires that a law not “burden substantially more speech than is necessary to further the government’s legitimate interests” .3 In determining that intermediate scrutiny applied, the Court rejected analogies to the “right to reply” law struck down in Miami Herald Publishing Co. v. Tornillo, holding that the federal must-carry rules did not require cable operators to carry programming based on the content of operators’ existing programming and were unlikely to “force cable operators to alter their own messages.” 4 The Court similarly noted that viewers were unlikely to assume that the messages conveyed by broadcast programming reflected the views of the cable operator.5 Applying intermediate scrutiny, the Court held that the must-carry requirements were justified by a government interest in preserving a multiplicity of broadcast sources.6

As with broadcast television, some private parties have argued that the First Amendment rights of the public require a right of access to cable television systems.7 One hurdle to this theory is that the First Amendment forbids only government from abridging a right to free speech—it does not generally require private parties to respect others’ free speech rights.8

, >https://constitution.congress.gov/browse/essay/amdt1-7-2-4/ALDE_00013541. Though this “state action” issue was raised in Democratic National Committee, discussed in a previous essay, the Court in that case was divided as to whether a broadcaster’s decision to deny access to potential advertisers would occasion a First Amendment analysis.9 In Manhattan Community Access Corp. v. Halleck, the Court considered whether an operator of public access channels on a cable television system violated the First Amendment when it restricted the access of individuals who had produced a film critical of the operator.10 The Court noted that while the First Amendment may constrain the ability of a state actor to exclude speakers, a private entity may freely exercise editorial discretion over the speech and speakers in a forum that entity provides.11 Writing for five members of the Court, Justice Kavanaugh observed that under the Court’s precedents, a private entity may be treated as a state actor if it exercises functions that “the government [has] traditionally and exclusively performed.” 12 The Court found that operating public access channels on a cable system was not “traditionally and exclusively performed” by government, given the history of such channels being operated by private entities.13 In reaching this conclusion, the Court acknowledged a range of other private establishments that might offer space for speech—from “community bulletin boards” to “open mic nights” 14 —and opined that subjecting these establishments to First Amendment constraints would hinder the “exercise of what they deem to be appropriate editorial discretion within that open forum.” 15 The Court thereby reaffirmed the principle that the First Amendment may not “disable private property owners and private lessees from exercising editorial discretion over speech and speakers on their property.” 16

Footnotes

1

520 U.S. 180 (1997).

2

Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 645 (1994). Four Justices determined that the requirements were content-based. Id. at 676 (O’Connor, J., concurring in part and dissenting in part).

3

Id. at 662 (majority opinion) (quoting Ward v. Rock Against Racism, 491 U.S. 781, 799 (1989)). For more discussion of this case, see Cable Television.

4

Turner, 512 U.S. at 655. The Court also distinguished cable television from newspapers based on technical features of cable as a medium that allow a cable operator to exercise “far greater control over access” to the medium. Id. at 656. For more discussion of Tornillo and the general right of editorial discretion, see Overview of Access and Editorial Discretion.

5

Turner, 512 U.S. at 655–56. The Court has suggested in several non-media cases that compelling an entity to provide a forum for other speakers may not violate the First Amendment if, among other factors, the views of the speakers are unlikely to be attributed to the entity. See, e.g., PruneYard Shopping Ctr. v. Robins, 447 U.S. 74, 87 (1980) (holding that shopping center owner’s free speech rights were not violated by state constitutional provisions protecting right of individuals to circulate petitions in shopping center); Rumsfeld v. Forum for Acad. & Inst. Rights, Inc., 547 U.S. 47, 63 (2006) (holding that funding condition for universities requiring equal access for military recruiters did not violate free speech rights of universities).

6

Turner, 520 U.S. at 213.

7

Cf. Columbia Broad. Sys. Inc. v. Democratic Nat’l Comm., 412 U.S. 94, 98 (1973). For more discussion of this case and issues relating to access to broadcast systems, see Access and Editorial Discretion in Broadcast Media.

8

See Pub. Utils. Comm’n v. Pollak, 343 U.S. 451, 461 (1952). See generally

State Action Doctrine and Free Speech

, >https://constitution.congress.gov/browse/essay/amdt1-7-2-4/ALDE_00013541.

9

Compare Democratic Nat’l Comm., 412 U.S. at 121 (plurality opinion) (determining that broadcaster’s policy was not state action), with id. at 148 (Blackmun, J., concurring) (determining that the case could be resolved without reaching the state action issue and “therefore refrain[ing] from deciding it” ), and id. at 180–81 (Brennan, J., dissenting) (determining that First Amendment should apply to broadcaster’s policy given indicia of government involvement with broadcasting).

10

139 S. Ct. 1921, 1926 (2019). For more discussion of this case, see

State Action Doctrine and Free Speech

, >https://constitution.congress.gov/browse/essay/amdt1-7-2-4/ALDE_00013541.

11

Id. at 1930; cf. Ark. Educ. Television Comm’n v. Forbes, 523 U.S. 666, 676–81 (1998) (applying public forum principles to a debate broadcast on a state-operated television station, though ultimately concluding that the debate was not a public forum).

12

Halleck, 139 S. Ct. at 1929.

13

Id. at 1929–30.

14

Id.

15

Id. at 1931.

16

Id.