Petitioner
Denver Area Educational Consortium, et al.
Respondent
Federal Communications Commission, et al.
Petitioner's Claim
That various regulations implementing the Cable Television Consumer Protection and Competition Act, which regulated indecent and obscene programming on cable television, violated the free speech rights of cable access programmers and cable television viewers under the First Amendment.
Chief Lawyer for Petitioner
I. Michael Greenberger
Chief Lawyer for Respondent
Lawrence G. Wallace
Justices for the Court
Stephen Breyer (writing for the Court), Ruth Bader Ginsburg, Anthony M. Kennedy, Sandra Day O'Connor, David H. Souter, John Paul Stevens
Justices Dissenting
William H. Rehnquist, Antonin Scalia, Clarence Thomas
Place
Washington, D.C.
Date of Decision
28 June 1996
Decision
That the portion of the regulations which permitted cable operators to restrict offensive or indecent programming on leased cable channels was constitutional. However, those portions of the regulations which allowed the operator torestrict such programming on public access channels, and which required cable operators to put patently offensive programming on separate channels whichcannot be received unless a viewer requests to have the channel "unblocked,"were unconstitutional restrictions on free speech.
Significance
The plurality opinion suggests a sweeping change in how First Amendment claims are analyzed by the Supreme Court. The opinion, if adopted in other contexts, has the potential to revolutionize how the Court views First Amendment problems arising in areas of new technology. However, for the short-term, the Court's decision seems to be limited to regulations of cable television, and issignificant in that it allows somewhat greater restrictions on speech in thecable television context than in other types of media.
In the 1949 case Kovacs v. Cooper, Justice Thomas Jackson noted the difficulties in analyzing First Amendment free speech issues in technologicallynew areas of communication: "The moving picture screen, the radio, the newspaper, the handbill, the sound truck and the street corner orator have differing natures, values, abuses, and dangers. Each . . . is a law unto itself." Justice Jackson's oft-quoted observation gained increasing importance in the 1980s and 1990s, as the Court struggled to apply the First Amendment rules to new technological areas, such as the Internet, cellular phones, and cable television.
One of the most troubling areas for the Supreme Court over the years has beenthe area of broadcast media. While the Court has consistently extended broadprotection to free speech rights of print and other media, it has struggledto define the proper scope of First Amendment protections in the case of radio and television broadcasts. Although the Court unanimously struck down a lawregulating indecent and pornographic speech on the Internet in the case of Reno v. American Civil Liberties Union, less than a year later in Denver Area Consortium, the Court was sharply divided over how to apply theFirst Amendment's prohibition on laws restricting free speech to certain portions of the Cable Television Consumer Protection Act containing similar regulations of indecent speech on cable television.
Denver Area Consortium involved a challenge to three sections of the act brought by several cable television programmers and viewers. Specifically,the petitioners challenged sections 10(a), 10(b), and 10(c) of the act, which were enacted in 1992, and the Federal Communication Commission's regulations implementing those sections. All three sections related to offensive or indecent programming on cable television. Section 10(a) allowed cable operatorsto prohibit offensive or indecent programming on "leased access channels," that is, channels leased to private programmers. If the cable operator permitted programming defined as indecent by the Federal Communications Commission regulations on leased access channels, section 10(b) required the cable operator to "segregate and block" such programming, by putting such programming on asingle channel and blocking access to the channel, unless the cable subscriber requested access to the channel in writing. Finally, section 10(c) appliedthe rule of section 10(a), allowing a cable operator to prohibit offensive or indecent programming on public access channels, which are channels left open to public, educational, and government programming.
By simple vote counting, the Court found that section 10(a) was constitutional by a 7-2 vote, that section 10(b) was unconstitutional by a 6-3 vote, and section 10(c) was unconstitutional by a 5-4 vote. More importantly, however, the justices were sharply divided over the approach to be used in analyzing the regulations, issuing six separate opinions in the case. In general terms, the justices' opinions can be broken down into three separate approaches.
Justice Breyer's Contextual Balancing Approach
Justice Breyer, who was joined in his approach by Justices Stevens, Souter, and O'Connor, refused to apply any test previously formulated in other areas of the media under the First Amendment. Breyer's approach rejected the attemptof the other justices to create categories of media for First Amendment cases. He reasoned that such a categorical approach "import[s] law developed in very different contexts into a new and changing environment, and . . . lack[s]the flexibility necessary to allow government to respond to very serious problems without sacrificing the free exchange of ideas the First Amendment is designed to protect." Thus, Justice Breyer favored a "contextual assessment" of the law, in which a regulation on speech is upheld if it "properly addresses an extremely important problem, without imposing, in light of the relevantinterests, an unnecessarily great restriction on speech."
Applying this contextual approach, Justice Breyer, joined by Justices Stevensand Souter, found that section 10(a) was constitutional, but that both sections 10(b) and 10(c) were unconstitutional. With respect to section 10(a), Justice Breyer concluded that the statute was designed for an important purpose,the need to protect children from pornographic and patently offensive material. He also reasoned that, in allowing cable operators to block offensive programming, Congress appropriately balanced this interest against the interestsof adults wishing to view such programming, because there were alternative avenues for adults to receive this programming, such as home video, theatres,and direct broadcast satellite television. Thus, Justice Breyer concluded that section 10(a) was constitutional.
However, Justice Breyer also found that the "segregate and block" provision of section 10(b) was unconstitutional, because the provision was overly restrictive. He noted that the provision required significant advanced planning onthe part of a cable subscriber who wanted to view a particular offensive program, and would have been better served by a less restrictive means of blocking such programming to subscribers who did not want to receive it. For example, rather than automatically blocking such programming and requiring a writtenrequest by a subscriber for it, a cable operator could simply allow a subscriber to request to have the channel blocked. Thus, he concluded that the "segregate and block" provision was not a reasonable balance of the government'sinterest in protecting children and the free speech rights of cable television programmers and viewers.
Finally, Justice Breyer also found section 10(c), allowing cable operators toban offensive programming on public access channels, unconstitutional. He again concluded that the balance struck by Congress between the need to protectchildren and the free speech rights of cable programmers and viewers was unreasonable. He reasoned that there was significantly less evidence of offensive programming on public access channels and that, because programming on suchchannels is usually controlled by supervising boards composed of people affiliated with nonprofit or local government organizations, there was already aneffective way of limiting such programming on public access channels. Although she agreed with Justice Breyer on the other two sections, Justice O'Connordisagreed with respect to section 10(c). She found no reason to distinguishthis section from section 10(a), as they were essentially the same provision,only directed at two different types of channels.
Justice Kennedy's Categorical Approach
In contrast to the approach taken by Justice Breyer, Justice Kennedy, who wrote an opinion for himself and Justice Ginsburg, favored a "categorical" approach. He reasoned that "[w]hen confronted with a threat to free speech in an emerging technology, [the Court] ought to have the discipline to analyze the case by reference to existing First Amendment principles." In Justice Kennedy's view, cable television falls into the same category as speech in a "publicforum," such as a speaker standing on a street corner. This is so, Justice Kennedy concluded, because cable television operators have access to cable through a government franchise. As Justice Kennedy analogized, cable programming(particular public access programming), is "the video equivalent of the speaker's soapbox or the electronic parallel to the printed leaflet."
Thus, Justice Kennedy applied the same test used in other "public forum" cases, namely, the strict scrutiny test. Under the strict scrutiny test, a regulation on speech is valid only if it is narrowly tailored to achieve a compelling government interest. Although agreeing that Congress's purpose of protecting children from viewing indecent programming was compelling, Justice Kennedyconcluded that neither section 10(a) nor section 10(c) was narrowly tailoredto achieving that purpose. First, he reasoned, the sections merely permit acable operator to ban offensive programming; thus, cable operators remain free to allow such programming, and such programming will inevitably reach children in certain areas. Second, sections 10(a) and 10(c) deprives adults of access to indecent programming, not just children. Thus, Justice Kennedy concluded: "Sections 10(a) and (c) present a classic case of discrimination againstspeech based on its content. There are legitimate reasons why the governmentmight wish to regulate or even restrict the speech at issue here, but [sections] 10(a) and 10(c) are not drawn to address those reasons with the precisionthe First Amendment requires."
Justice Thomas's Categorical Approach
Justice Thomas, who was joined by Chief Justice Rehnquist and Justice Scalia,also favored a categorical approach similar to that of Justice Kennedy. Criticizing Justice Breyer's "assiduous attempts to avoid addressing" the issue of "how and to what extent the First Amendment protects cable operators, programmers, and viewers from state and federal regulation," Justice Thomas concluded that cable television should be afforded protections similar to those ofthe print media. However, Justice Thomas concluded that the restrictions in the act affected the free speech rights of the cable operators, not the cableprogrammers and viewers who were challenging the regulations. He concluded that the regulations actually increased the free speech rights of cable operators, by allowing them to exercise editorial control over the programs run by the cable programmers. He reasoned that cable programmers have no constitutional right of access to cable television; rather, programmers have a right of access only because Congress had mandated that cable operators set aside a certain number of channels for leased and public access programming. He concluded that, "[v]iewing the federal access requirements as a whole, it is the cable operator, not the access programmer, whose speech rights have been infringed." Thus, because the act merely restored free speech rights to the cable operators, without infringing on any constitutional right of access to cable forprogrammers, Justice Thomas concluded that the act was constitutional.
Impact
The Court's decision in Denver Area Consortium will likely have littleimpact outside the area of cable television regulation. About one year afterthe Court's decision the Court unanimously found similar restrictions on indecent material on the Internet to violate the First Amendment in Reno v. American Civil Liberties Union (1997). In Reno, the Court unanimously applied the strict scrutiny test, not mentioning Justice Breyer's contextual approach and barely even citing its decision in Denver Area Consortium. Although lower federal courts have attempted to apply the various approaches taken in the case to other cable television regulations, it appears thatoutside this limited area the Court's decision will have little, if any, impact.
Related Cases
Denver Area Educational Consortium, et al.
Respondent
Federal Communications Commission, et al.
Petitioner's Claim
That various regulations implementing the Cable Television Consumer Protection and Competition Act, which regulated indecent and obscene programming on cable television, violated the free speech rights of cable access programmers and cable television viewers under the First Amendment.
Chief Lawyer for Petitioner
I. Michael Greenberger
Chief Lawyer for Respondent
Lawrence G. Wallace
Justices for the Court
Stephen Breyer (writing for the Court), Ruth Bader Ginsburg, Anthony M. Kennedy, Sandra Day O'Connor, David H. Souter, John Paul Stevens
Justices Dissenting
William H. Rehnquist, Antonin Scalia, Clarence Thomas
Place
Washington, D.C.
Date of Decision
28 June 1996
Decision
That the portion of the regulations which permitted cable operators to restrict offensive or indecent programming on leased cable channels was constitutional. However, those portions of the regulations which allowed the operator torestrict such programming on public access channels, and which required cable operators to put patently offensive programming on separate channels whichcannot be received unless a viewer requests to have the channel "unblocked,"were unconstitutional restrictions on free speech.
Significance
The plurality opinion suggests a sweeping change in how First Amendment claims are analyzed by the Supreme Court. The opinion, if adopted in other contexts, has the potential to revolutionize how the Court views First Amendment problems arising in areas of new technology. However, for the short-term, the Court's decision seems to be limited to regulations of cable television, and issignificant in that it allows somewhat greater restrictions on speech in thecable television context than in other types of media.
In the 1949 case Kovacs v. Cooper, Justice Thomas Jackson noted the difficulties in analyzing First Amendment free speech issues in technologicallynew areas of communication: "The moving picture screen, the radio, the newspaper, the handbill, the sound truck and the street corner orator have differing natures, values, abuses, and dangers. Each . . . is a law unto itself." Justice Jackson's oft-quoted observation gained increasing importance in the 1980s and 1990s, as the Court struggled to apply the First Amendment rules to new technological areas, such as the Internet, cellular phones, and cable television.
One of the most troubling areas for the Supreme Court over the years has beenthe area of broadcast media. While the Court has consistently extended broadprotection to free speech rights of print and other media, it has struggledto define the proper scope of First Amendment protections in the case of radio and television broadcasts. Although the Court unanimously struck down a lawregulating indecent and pornographic speech on the Internet in the case of Reno v. American Civil Liberties Union, less than a year later in Denver Area Consortium, the Court was sharply divided over how to apply theFirst Amendment's prohibition on laws restricting free speech to certain portions of the Cable Television Consumer Protection Act containing similar regulations of indecent speech on cable television.
Denver Area Consortium involved a challenge to three sections of the act brought by several cable television programmers and viewers. Specifically,the petitioners challenged sections 10(a), 10(b), and 10(c) of the act, which were enacted in 1992, and the Federal Communication Commission's regulations implementing those sections. All three sections related to offensive or indecent programming on cable television. Section 10(a) allowed cable operatorsto prohibit offensive or indecent programming on "leased access channels," that is, channels leased to private programmers. If the cable operator permitted programming defined as indecent by the Federal Communications Commission regulations on leased access channels, section 10(b) required the cable operator to "segregate and block" such programming, by putting such programming on asingle channel and blocking access to the channel, unless the cable subscriber requested access to the channel in writing. Finally, section 10(c) appliedthe rule of section 10(a), allowing a cable operator to prohibit offensive or indecent programming on public access channels, which are channels left open to public, educational, and government programming.
By simple vote counting, the Court found that section 10(a) was constitutional by a 7-2 vote, that section 10(b) was unconstitutional by a 6-3 vote, and section 10(c) was unconstitutional by a 5-4 vote. More importantly, however, the justices were sharply divided over the approach to be used in analyzing the regulations, issuing six separate opinions in the case. In general terms, the justices' opinions can be broken down into three separate approaches.
Justice Breyer's Contextual Balancing Approach
Justice Breyer, who was joined in his approach by Justices Stevens, Souter, and O'Connor, refused to apply any test previously formulated in other areas of the media under the First Amendment. Breyer's approach rejected the attemptof the other justices to create categories of media for First Amendment cases. He reasoned that such a categorical approach "import[s] law developed in very different contexts into a new and changing environment, and . . . lack[s]the flexibility necessary to allow government to respond to very serious problems without sacrificing the free exchange of ideas the First Amendment is designed to protect." Thus, Justice Breyer favored a "contextual assessment" of the law, in which a regulation on speech is upheld if it "properly addresses an extremely important problem, without imposing, in light of the relevantinterests, an unnecessarily great restriction on speech."
Applying this contextual approach, Justice Breyer, joined by Justices Stevensand Souter, found that section 10(a) was constitutional, but that both sections 10(b) and 10(c) were unconstitutional. With respect to section 10(a), Justice Breyer concluded that the statute was designed for an important purpose,the need to protect children from pornographic and patently offensive material. He also reasoned that, in allowing cable operators to block offensive programming, Congress appropriately balanced this interest against the interestsof adults wishing to view such programming, because there were alternative avenues for adults to receive this programming, such as home video, theatres,and direct broadcast satellite television. Thus, Justice Breyer concluded that section 10(a) was constitutional.
However, Justice Breyer also found that the "segregate and block" provision of section 10(b) was unconstitutional, because the provision was overly restrictive. He noted that the provision required significant advanced planning onthe part of a cable subscriber who wanted to view a particular offensive program, and would have been better served by a less restrictive means of blocking such programming to subscribers who did not want to receive it. For example, rather than automatically blocking such programming and requiring a writtenrequest by a subscriber for it, a cable operator could simply allow a subscriber to request to have the channel blocked. Thus, he concluded that the "segregate and block" provision was not a reasonable balance of the government'sinterest in protecting children and the free speech rights of cable television programmers and viewers.
Finally, Justice Breyer also found section 10(c), allowing cable operators toban offensive programming on public access channels, unconstitutional. He again concluded that the balance struck by Congress between the need to protectchildren and the free speech rights of cable programmers and viewers was unreasonable. He reasoned that there was significantly less evidence of offensive programming on public access channels and that, because programming on suchchannels is usually controlled by supervising boards composed of people affiliated with nonprofit or local government organizations, there was already aneffective way of limiting such programming on public access channels. Although she agreed with Justice Breyer on the other two sections, Justice O'Connordisagreed with respect to section 10(c). She found no reason to distinguishthis section from section 10(a), as they were essentially the same provision,only directed at two different types of channels.
Justice Kennedy's Categorical Approach
In contrast to the approach taken by Justice Breyer, Justice Kennedy, who wrote an opinion for himself and Justice Ginsburg, favored a "categorical" approach. He reasoned that "[w]hen confronted with a threat to free speech in an emerging technology, [the Court] ought to have the discipline to analyze the case by reference to existing First Amendment principles." In Justice Kennedy's view, cable television falls into the same category as speech in a "publicforum," such as a speaker standing on a street corner. This is so, Justice Kennedy concluded, because cable television operators have access to cable through a government franchise. As Justice Kennedy analogized, cable programming(particular public access programming), is "the video equivalent of the speaker's soapbox or the electronic parallel to the printed leaflet."
Thus, Justice Kennedy applied the same test used in other "public forum" cases, namely, the strict scrutiny test. Under the strict scrutiny test, a regulation on speech is valid only if it is narrowly tailored to achieve a compelling government interest. Although agreeing that Congress's purpose of protecting children from viewing indecent programming was compelling, Justice Kennedyconcluded that neither section 10(a) nor section 10(c) was narrowly tailoredto achieving that purpose. First, he reasoned, the sections merely permit acable operator to ban offensive programming; thus, cable operators remain free to allow such programming, and such programming will inevitably reach children in certain areas. Second, sections 10(a) and 10(c) deprives adults of access to indecent programming, not just children. Thus, Justice Kennedy concluded: "Sections 10(a) and (c) present a classic case of discrimination againstspeech based on its content. There are legitimate reasons why the governmentmight wish to regulate or even restrict the speech at issue here, but [sections] 10(a) and 10(c) are not drawn to address those reasons with the precisionthe First Amendment requires."
Justice Thomas's Categorical Approach
Justice Thomas, who was joined by Chief Justice Rehnquist and Justice Scalia,also favored a categorical approach similar to that of Justice Kennedy. Criticizing Justice Breyer's "assiduous attempts to avoid addressing" the issue of "how and to what extent the First Amendment protects cable operators, programmers, and viewers from state and federal regulation," Justice Thomas concluded that cable television should be afforded protections similar to those ofthe print media. However, Justice Thomas concluded that the restrictions in the act affected the free speech rights of the cable operators, not the cableprogrammers and viewers who were challenging the regulations. He concluded that the regulations actually increased the free speech rights of cable operators, by allowing them to exercise editorial control over the programs run by the cable programmers. He reasoned that cable programmers have no constitutional right of access to cable television; rather, programmers have a right of access only because Congress had mandated that cable operators set aside a certain number of channels for leased and public access programming. He concluded that, "[v]iewing the federal access requirements as a whole, it is the cable operator, not the access programmer, whose speech rights have been infringed." Thus, because the act merely restored free speech rights to the cable operators, without infringing on any constitutional right of access to cable forprogrammers, Justice Thomas concluded that the act was constitutional.
Impact
The Court's decision in Denver Area Consortium will likely have littleimpact outside the area of cable television regulation. About one year afterthe Court's decision the Court unanimously found similar restrictions on indecent material on the Internet to violate the First Amendment in Reno v. American Civil Liberties Union (1997). In Reno, the Court unanimously applied the strict scrutiny test, not mentioning Justice Breyer's contextual approach and barely even citing its decision in Denver Area Consortium. Although lower federal courts have attempted to apply the various approaches taken in the case to other cable television regulations, it appears thatoutside this limited area the Court's decision will have little, if any, impact.
Related Cases
- Kovacs v. Cooper, 336 U.S. 77 (1949).
- Federal Communications Commission v. Pacifica Foundation, 438 U.S.726 (1978).
- Sable Communications of California, Inc. v. Federal Communications Commission, 492 U.S. 115 (1989).
- Turner Broadcasting Systems, Inc. v. Federal Communications Commission, 512 U.S. 622 (1994).
- Reno v. American Civil Liberties Union, 512 U.S. 844 (1997).
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