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

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 attempt of 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 relevant interests, an unnecessarily great restriction on speech."

Applying this contextual approach, Justice Breyer, joined by Justices Stevens and 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 interests of 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 on the 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 written request 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's interest 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 to ban offensive programming on public access channels, unconstitutional. He again concluded that the balance struck by Congress between the need to protect children 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 such channels is usually controlled by supervising boards composed of people affiliated with nonprofit or local government organizations, there was already an effective way of limiting such programming on public access channels. Although she agreed with Justice Breyer on the other two sections, Justice O'Connor disagreed with respect to section 10(c). She found no reason to distinguish this section from section 10(a), as they were essentially the same provision, only directed at two different types of channels.