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

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 of the print media. However, Justice Thomas concluded that the restrictions in the act affected the free speech rights of the cable operators, not the cable programmers 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 for programmers, Justice Thomas concluded that the act was constitutional.