Inc. v. Federal Communications Commission Denver Area Educational Telecommunications Consortium

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 is significant in that it allows somewhat greater restrictions on speech in the cable 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 technologically new 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 been the area of broadcast media. While the Court has consistently extended broad protection to free speech rights of print and other media, it has struggled to define the proper scope of First Amendment protections in the case of radio and television broadcasts. Although the Court unanimously struck down a law regulating 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 the First 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 operators to 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 a single channel and blocking access to the channel, unless the cable subscriber requested access to the channel in writing. Finally, section 10(c) applied the 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.