518 U.S. 727 (1996)
Cable operators typically own physical cable networks used to convey programming over several dozen channels into subscribers' homes.1 Most channels carry programming produced by independent firms. Leased access channels comprise about 10 to 15 percent of capacity and are reserved for commercial lease by unaffiliated third parties.2 Public access channels are set aside for public, educational, or governmental purposes as part of the consideration operators give in franchise agreements with local governments.3
Prior to 1992, federal law prohibited cable system operators from exercising any editorial control over the content of any program broadcast over either leased or public access channels.4 In 1992 Congress enacted the Cable Television Consumer Protection and Competition Act containing three provisions that addressed patently offensive sex-related material on these channels.5 Section 10(a) permitted operators to enforce a written policy prohibiting such programming on leased access channels.6 Section 10(b) required operators who chose to carry the material on leased channels to place it on a single channel, block the channel, and unblock it only upon a subscriber's written request.7 Section 10(c) permitted operators to prohibit the material on public access channels.8
The Federal Communications Commission issued regulations in 1993 implementing the provisions. The regulations defined the covered material as descriptions or depictions of sexual or excretory activities or organs in a patently offensive manner as measured by contemporary community standards.9 The regulations required programmers to notify operators in advance.10 They also imposed time limits on operators' responses to subscriber requests for unblocking.11
Petitioners, including access programmers and viewer organizations such as the Denver Area Educational Telecommunications Consortium and the Alliance for Community Media, sought judicial review of the Commission's First Report and Order and Second Report and Order in the United States Court of Appeals for the District of Columbia Circuit.12 A panel of the D.C. Circuit held that the three provisions violated the First Amendment.13 The court of appeals reheard the case en banc and upheld all three provisions.14 The Supreme Court granted certiorari to review the First Amendment determinations.15
Whether the provision of the 1992 Cable Act permitting cable operators to prohibit patently offensive programming on leased access channels violates the First Amendment?16
The First Amendment prohibits Congress from abridging the freedom of speech.17 In the context of cable regulation the Court applies a flexible standard.18 That standard permits government to directly regulate speech to address extraordinary problems when the regulations are appropriately tailored without imposing an unnecessarily great restriction on speech.19
No. Section 10(a) permits rather than requires operators to prohibit the material.20 It thereby restores some editorial discretion to operators who previously had none due to federal mandates.21 This permissive approach is similar to the one upheld in Pacifica.22 There the Court recognized the compelling interest in protecting children from patently offensive material that is uniquely accessible in the home.23
Applying the rule to the established facts, the provision addresses the problem without the certainty of a ban.24 It allows operators flexibility to rearrange or ban programming as they see fit.25 The definition of the material is not unconstitutionally vague because it tracks language from Miller v. California.26
The provision does not violate the First Amendment.27
Related opinions on this issue
The difference between § 10(a) and § 10(c) is the difference between a permit and a prohibition.28 The former restores the freedom of cable operators to reject indecent programs; the latter requires local franchising authorities to reject such programs. Section 10(a) is best understood as a limitation on the amount of speech that the Federal Government has spared from the censorial control of the cable operator, rather than a direct prohibition against the communication of speech that, in the absence of federal intervention, would flow freely.
It constitutes a reasonable, viewpoint-neutral limitation on a federally created access right for certain cable programmers. Accordingly, I would affirm the judgment of the Court of Appeals as to this provision.
The speech and the restriction at issue may usefully be measured against the ones at issue in Pacifica.29 The appropriate category for cable indecency should be as contextually detailed as the Pacifica example.30 Settling upon a definitive level-of-scrutiny rule of review for so complex a category would require a subtle judgment.31
The job of the courts will be recognizing established First Amendment interests through a close analysis that constrains the Congress without wholly incapacitating it.
I agree that § 10(a) is constitutional.32 Both §§ 10(a) and 10(c) serve an important governmental interest in protecting children from exposure to indecent material.33 Cable television is a medium that is uniquely accessible to children.34
By permitting a cable operator to prevent transmission of patently offensive sex-related programming, § 10(a) furthers the interest of protecting children.35 It is also significant that § 10(a) is permissive and is not more restrictive than the governmental speech restriction upheld in Pacifica.36
Joined by Justice Ginsburg
Sections 10(a) and (c) are unusual.37 They do not require direct action against speech, but do authorize a cable operator to deny the use of its property to indecent programming.38 Access channels are property of the cable operator dedicated or otherwise reserved for programming of other speakers or the government.39
When the government identifies indecent programming on the basis of its content as vulnerable to exclusion from a common carrier or public forum, strict scrutiny applies.40 These laws cannot survive this exacting review.41
Joined by Chief Justice Rehnquist And Justice Scalia
I agree with the principal opinion's conclusion that § 10(a) is constitutionally permissible.42 The text of the First Amendment makes no distinctions among print, broadcast, and cable media.43 After Turner, cable operators enjoy the same First Amendment rights as the nonbroadcast media.44
The cable operator's editorial discretion is a function of the cable franchise it receives from local government.45 The operator's right to exercise any editorial discretion over cable service disappears if its franchise is terminated.46
Whether the provision of the 1992 Cable Act requiring cable operators to segregate and block patently offensive programming on leased access channels violates the First Amendment?47
The First Amendment prohibits Congress from abridging the freedom of speech. In the context of cable regulation the Court applies a flexible standard. That standard permits government to directly regulate speech to address extraordinary problems when the regulations are appropriately tailored without imposing an unnecessarily great restriction on speech.
Yes. Section 10(b) requires operators to segregate and block the material.48 It imposes substantial burdens including up to 30-day delays, single-channel placement, and written requests that invade household privacy and chill viewing.49 Applying the rule to the established facts, these requirements are not narrowly tailored.50
Less restrictive alternatives such as lockboxes and the blocking provisions in the 1996 Act adequately protect children without the same speech restrictions.51 The record provides no convincing explanation for treating leased channels more severely than other channels.52
The provision violates the First Amendment.53
Related opinions on this issue
Joined by Justice Ginsburg
Sections 10(a) and (c) disadvantage nonobscene, indecent programming, a protected category of expression, on the basis of its content.54 The Constitution in general does not tolerate content-based restriction of, or discrimination against, speech.55 We have given the most exacting scrutiny to regulations that suppress, disadvantage, or impose differential burdens upon speech because of its content.56
Laws removing common-carriage protection from a single form of speech based on its content should be reviewed under the same standard as content-based restrictions on speech in a public forum.57
Whether the provision of the 1992 Cable Act permitting cable operators to prohibit patently offensive programming on public access channels violates the First Amendment?58
The First Amendment prohibits Congress from abridging the freedom of speech. In the context of cable regulation the Court applies a flexible standard. That standard permits government to directly regulate speech to address extraordinary problems when the regulations are appropriately tailored without imposing an unnecessarily great restriction on speech.
Yes. Section 10(c) permits operators to prohibit the material on public access channels that historically have been subject to local supervisory systems rather than operator editorial control.59 Applying the rule to the established facts, the provision does not restore editorial rights operators once possessed.60 It increases the risk that borderline programming will not appear.61 It is not supported by evidence of a significant nationwide pattern of problems on public access channels, rendering it unnecessary to protect children.62
The provision violates the First Amendment.
Related opinions on this issue
Section 10(c) operates as a direct restriction on speech that, in the absence of federal intervention, might flow freely.63 The Federal Government is therefore not entitled to the same leeway that it deserves when it enacts provisions that define the limits of federally created access rights.64 The Federal Government has no more entitlement to restrict the power of a local authority to disseminate materials on channels of its own creation than it has to restrict the power of cable operators to do so on channels that they own.65
In this respect the federal statute would disable local governments from making choices they might otherwise make.66
Whether the three provisions of the 1992 Cable Act are severable?67
The First Amendment prohibits Congress from abridging the freedom of speech. In the context of cable regulation the Court applies a flexible standard. That standard permits government to directly regulate speech to address extraordinary problems when the regulations are appropriately tailored without imposing an unnecessarily great restriction on speech.
Yes. Congress would have intended Section 10(a) to stand even if the other provisions were invalid.68 The latter concerns only public access channels and had little effect on leased access channels.69 Applying the rule to the established facts, without the segregate-and-block requirement the law simply treats leased channels like other channels.70 Section 10(a) remains capable of functioning on its own to help achieve the objective of protecting children.71
The provisions are severable.72