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

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 "public forum," 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 Kennedy concluded that neither section 10(a) nor section 10(c) was narrowly tailored to achieving that purpose. First, he reasoned, the sections merely permit a cable 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 against speech based on its content. There are legitimate reasons why the government might 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 precision the First Amendment requires."