518 U.S. 727 (1996), 95-124, Denver Area Ed. Telecommunications Consortium

Docket Nº:Case No. 95-124
Citation:518 U.S. 727, 116 S.Ct. 2374, 135 L.Ed.2d 888, 64 U.S.L.W. 4706
Party Name:DENVER AREA EDUCATIONAL TELECOMMUNICATIONS CONSORTIUM, INC., v. FEDERAL COMMUNICATIONS COMMISSION et al.
Case Date:June 28, 1996
Court:United States Supreme Court
 
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Page 727

518 U.S. 727 (1996)

116 S.Ct. 2374, 135 L.Ed.2d 888, 64 U.S.L.W. 4706

DENVER AREA EDUCATIONAL TELECOMMUNICATIONS CONSORTIUM, INC.,

v.

FEDERAL COMMUNICATIONS COMMISSION et al.

Case No. 95-124

United States Supreme Court

June 28, 1996[*]

Argued February 21, 1996

CERTIORARI TO THE UNITED STATES COURT OF APPEAL FOR THE DISTRICT OF COLUMBIA CIRCUIT

Syllabus

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 Amendment.

Held:

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

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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. 753-760.

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. 737-753.

(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, 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. 622, 635-637. 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

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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 637-641, distinguished. Pp. 737-748.

(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. 749-750.

(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' programscreening 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. 750-753.

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

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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. 760-766.

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 of Colo., Inc. v. FCC, 492 U.S. 115, 126, § 10(c) is...

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