The Court has recognized that operation of a cable television system “implicate[s] First Amendment interests,” in part because a cable operator exercises editorial discretion by selecting original programming and determining which stations to include in its offering.1 While the Supreme Court has relied on the scarcity of electromagnetic spectrum to justify greater regulation of broadcast television, cable television lacks this scarcity.2 Litigants therefore sparred over whether cable television is entitled to special First Amendment treatment.3 In its 1994 decision Turner Broadcasting System v. FCC, the Court held that cable as a medium enjoys greater First Amendment protection than broadcast.4 The Court nevertheless recognized that certain features of cable television as a medium might justify regulation.5 The Turner court determined that “must-carry” provisions of law requiring cable operators to carry local broadcast stations were content-neutral restrictions on speech subject to intermediate scrutiny, but did not rule on the constitutionality of these regulations.6 In a 1997 follow-up decision, the Court held that government interests in ensuring the continued availability of broadcast programming, promoting the dissemination of information from a variety of sources, and encouraging competition in the television programming marketplace justified must-carry regulations.7

In Denver Area Educational Telecommunications Consortium v. FCC, a case challenging FCC regulations relating to indecent cable television programming, a plurality of the Court appeared hesitant to categorically impose a specific level of First Amendment scrutiny on cable television regulation.8 Writing for four members of the Court, Justice Breyer noted that many factors identified in FCC v. Pacifica Foundation as features of broadcast media warranting more relaxed First Amendment treatment—including a “pervasive” presence in Americans’ homes and a unique accessibility to children—could also describe cable television.9 The plurality distinguished between Turner —where a majority of the court had treated cable television to the same standards as non-broadcast media—by noting that the structural distinction between cable television and broadcast television that was relevant in Turner “has little do do with a case that involves the effects of television viewing on children.” 10

In part relying on the similarity between broadcast and cable, but declining to impose a specific First Amendment standard, a plurality held that a law permitting cable operators to decline to broadcast patently offensive material on leased access channels did not pose free speech concerns.11 On the other hand, a Court majority held that a requirement that cable operators must, to protect children, segregate and block programs with patently offensive material, would not survive even a more relaxed level of First Amendment scrutiny.12

In United States v. Playboy Entertainment Group, Inc., the Supreme Court made clear that content-based speech restrictions on cable television are subject to the same standards generally applicable to content-based restrictions.13

, >https://constitution.congress.gov/browse/essay/amdt1-7-3-1/ALDE_00013695/ The Court struck down a federal statute that required cable operators to “scramble” sexually explicit channels to nonsubscribers or limit programming on those channels to certain hours.14 Though the Court again recognized that cable television shared several features of broadcasting identified in Pacifica, it also distinguished cable television for having “the capacity to block unwanted channels on a household-by-household basis.” 15 The Court held that this capacity for private blocking presented a less speech-restrictive alternative to government-mandated “scrambling.” 16

In short, despite the equivocal approach taken by the plurality in Denver Area Educational Telecommunications Consortium, the Court appears to generally view cable television as subject to the same First Amendment standards as non-broadcast media. However, the broadcast-like features of cable television and the unique features of cable television may be relevant in determining whether a particular regulation is justified.17

Footnotes

1

City of Los Angeles v. Preferred Commc’ns, Inc., 476 U.S. 488, 494 (1986).

2

See Broadcast Radio and Television.

3

See Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 638–39 (1994) (noting that First Amendment standards applicable to broadcast “are inapposite . . . because cable television does not suffer from the inherent limitations that characterize the broadcast medium” ).

4

Id. at 637.

5

Id. at 656–57.

6

Id. at 661–62; id. at 665 (plurality opinion).

7

Turner Broad. Sys., Inc. v. FCC, 520 U.S. 180, 213 (1997).

8

Denver Area Educ. Telecommc’ns Consortium, Inc. v. FCC, 518 U.S. 727, 742 (1996) (plurality opinion). Justice Thomas, joined by two other Justices, would have held that cable television is subject to the same level of First Amendment protection as print and other non-broadcast media. Id. at 812 (Thomas, J., concurring in the judgment in part and dissenting in part).

9

Id. at 744–45 (plurality opinion); see Error! Reference source not found. for more discussion of this case.

10

Denver Area Educ. Telecommc’ns Consortium, 518 U.S. at 748 (plurality opinion). Justice Thomas argued in concurrence that Justice Breyer’s opinion “largely disregards” the Court’s attempt in Turner I to define a First Amendment standard for cable television. Id. at 817–818 (Thomas, J., concurring in the judgment in part and dissenting in part).

11

Id. at 752 (plurality opinion). Justice Thomas, joined by two other Justices, agreed that the law was constitutional, though he would have clarified the applicable First Amendment standard. Id. at 812 (Thomas, J., concurring in the judgment in part and dissenting in part).

12

Id. at 755–56 (majority opinion).

13

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

Overview of Content-Based and Content-Neutral Regulation of Speech

, >https://constitution.congress.gov/browse/essay/amdt1-7-3-1/ALDE_00013695/

14

529 U.S. at 807.

15

Id. at 815.

16

Id. at

17

See Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 639 (1994) (noting that although cable television was not subject to more relaxed First Amendment treatment, “[t]his is not to say that the unique physical characteristics of cable transmission should be ignored when determining the constitutionality of regulations affecting cable speech” ); cf. Denver Area Educ. Telecommc’ns Consortium, 518 U.S. at 744–45 (plurality opinion) (relying in part on the pervasiveness and accessibility of cable television to uphold a law permitting cable operators to prohibit certain programming on leased access channels).