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The Court's June 28, 1996, ruling to uphold one section of a 1992 law that permits cable television operators to decide whether to show sexually explicit programs on leased access channels. But the court struck down a provision requiring cable operators who choose to carry indecent programming to have a separate channel for it and to block out the channel until a subscriber requests it in writing, and a separate provision dealing with public, educational and governmental channels. The justices said the two provisions that were struck down violate constitutional free-speech guarantees under the First Amendment.
SUPREME COURT OF THE UNITED STATES
Syllabus
DENVER AREA EDUCATIONAL TELECOMMUNICATIONS
CONSORTIUM, INC., ET AL.
v.
FEDERAL COMMUNICATIONS COMMISSION ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 95-124. Argued February 21, 1996-Decided June 28, 1996*
These cases involve three sections of the Cable Television
Consumer Protection and Competition Act of 1992 (Act), as
implemented by Federal Communications Commission (FCC)
regulations. Both Section 10(a) of the Act--which applies to "leased
access channels" reserved under federal law for commercial lease by
parties unaffiliated with the cable television system operator--and
Section 10(c)--which regulates "public access channels" required by
local governments for public, educational, and governmental
programming--essentially permit the operator to allow or prohibit
"programming" that it "reasonably believes . . . depicts sexual . . .
activities or organs in a patently offensive manner." Under Section
10(b), which applies only to leased access channels, operators are
required to segregate "patently offensive" programming on a single
channel, to block that channel from viewer access, and to unblock it
(or later to reblock it) within 30 days of a subscriber's written
request. Between 1984, when Congress authorized municipalities
to require operators to create public access channels, and the Act's
passage, federal law prohibited operators from exercising any
editorial control over the content of programs broadcast over either
type of access channel. Petitioners sought judicial review of
Sections 10(a), (b), and (c), and the en banc Court of Appeals held
that all three sections (as implemented) were consistent with the First
Amendment.
Held: The judgment is affirmed in part and reversed in part. 56 F.
3d 105, affirmed in part and reversed in part.
JUSTICE BREYER delivered the opinion of the Court with respect
to Part III, concluding that Section 10(b) violates the First
Amendment. That section's ``segregate and block'' requirements
have obvious speech-restrictive effects for viewers, who cannot
watch programs segregated on the "patently offensive" channel
without considerable advance planning or receive just an occasional
few such programs, and who may judge a program's value through
the company it keeps or refrain from subscribing to the segregated
channel out of fear that the operator will disclose its subscriber list.
Moreover, Section 10(b) is not appropriately tailored to achieve its
basic, legitimate objective of protecting children from exposure to
"patently offensive" materials. Less restrictive means utilized by
Congress elsewhere to protect children from "patently offensive"
sexual material broadcast on cable channels indicate that Section
10(b) is overly restrictive while its benefits are speculative. These
include some provisions of the Telecommunications Act of 1996,
which utilizes blocking without written request, ``V-chips,'' and
other significantly less restrictive means, and the "lockbox"
requirement that has been in place since the Cable Act of 1984. Pp.
23-30.
JUSTICE BREYER, joined by JUSTICE STEVENS, JUSTICE
O'CONNOR, and JUSTICE SOUTER, concluded in Parts I and II
that Section 10(a) is consistent with the First Amendment. Pp. 6-23.
(a) Close scrutiny demonstrates that Section 10(a) properly
addresses a serious problem without imposing, in light of the
relevant competing interests, an unnecessarily great restriction on
speech. First, the section comes accompanied with the extremely
important child-protection justification that this Court has often
found compelling. See, e.g., Sable Communications of Cal., Inc. v.
FCC, 492 U. S. 115, 126. Second, Section 10(a) arises in a very
particular context--congressional permission for cable operators to
regulate programming that, but for a previous Act of Congress,
would have had no path of access to cable channels free of an
operator's control. The First Amendment interests involved are
therefore complex, and require a balance between those interests
served by the access requirements themselves (increasing the
availability of avenues of expression to programmers who otherwise
would not have them), see H. R. Rep. No. 98-934, pp. 31-36
(1984), and the disadvantage to the First Amendment interests of
cable operators and other programmers (those to whom the operator
would have assigned the channels devoted to access). See Turner
Broadcasting System, Inc. v. FCC, 512 U. S. ___, ___. Third, the
problem Section 10(a) addresses is analogous to the "indecent" radio
broadcasts at issue in FCC v. Pacifica Foundation, 438 U. S. 726,
and the balance Congress struck here is commensurate with the
balance the Court approved in that case. Fourth, Section 10(a)'s
permissive nature means that it likely restricts speech less than, not
more than, the ban at issue in Pacifica. The importance of the
interest at stake here--protecting children from exposure to patently
offensive depictions of sex; the accommodation of the interests of
programmers in maintaining access channels and of cable operators
in editing the contents of their channels; the similarity of the problem
and its solution to those at issue in Pacifica; and the flexibility
inherent in an approach that permits private cable operators to make
editorial decisions, persuasively establishes that Section 10(a) is a
sufficiently tailored response to an extraordinarily important problem
involving a complex balance of interests. Sable, supra, at 128, and
Turner, supra, at ___, distinguished. Pp. 6-18.
(b) Petitioners' reliance on this Court's "public forum" cases is
unavailing. It is unnecessary and unwise to decide whether or how
to apply the public forum doctrine to leased access channels. First,
it is not clear whether that doctrine should be imported wholesale
into common carriage regulation of such a new and changing area.
Second, although limited public forums are permissible, the Court
has not yet determined whether the decision to limit a forum is
necessarily subject to the highest level of scrutiny, and these cases
do not require that it do so now. Finally, and most important, the
features that make Section 10(a) an acceptable constraint on speech
also make it an acceptable limitation on access to the claimed public
forum. Pp. 18-20.
(c) Section 10(a)'s definition of the materials it regulates is not
impermissibly vague. Because the language used is similar to that
adopted in Miller v. California, 413 U. S. 15, 24, as a
``guidelin[e]'' for state obscenity laws, it would appear to narrow
cable operators' program-screening authority to materials that
involve the same kind of sexually explicit materials that would be
obscene under Miller, but that might have "serious literary, artistic,
political or scientific value" or nonprurient purposes, ibid. That the
definition is not overly broad is further indicated by this Court's
construction of the phrase "patently offensive," see Pacifica, supra,
at 748, 750, which would narrow the category late at night when the
audience is basically adult, and by the fact that Section 10(a) permits
operators to screen programs only pursuant to a "written and
published policy." The definition's "reasonabl[e] belie[f]" qualifier
seems designed to provide a legal excuse for the operator's honest
mistake, and it constrains the operator's discretion as much as it
protects it. Pp. 20-23.
JUSTICE BREYER, joined by JUSTICE STEVENS and JUSTICE
SOUTER, concluded in Part IV that Section 10(c) violates the First
Amendment. Section 10(c), although like Section 10(a) a
permissive provision, is different from Section 10(a) for four
reasons. First, cable operators have not historically exercised
editorial control over public access channels, such that Section
10(c)'s restriction on programmers' capacity to speak does not effect
a countervailing removal of a restriction on cable operators' speech.
Second, programming on those channels is normally subject to
complex supervisory systems composed of both public and private
elements, and Section 10(c) is therefore likely less necessary to
protect children. Third, the existence of a system that encourages
and secures programming that the community considers valuable
strongly suggests that a "cable operator's veto" is more likely to
erroneously exclude borderline programs that should be broadcast,
than to achieve the statute's basic objective of protecting children.
Fourth, the Government has not shown that there is a significant
enough problem of patently offensive broadcasts to children, over
public access channels, that justifies the restriction imposed by
Section 10(c). Consequently, Section 10(c) violates the First
Amendment. Pp. 31-37.
JUSTICE KENNEDY, joined by JUSTICE GINSBURG,
concurred in the judgment that Section 10(c) is invalid, but for
different reasons. Because the public access channels regulated by
Section 10(c) are required by local cable franchise authorities, those
channels are ``designated public forums,'' i.e., property that the
government has opened for expressive activity by the public.
International Soc. for Krishna Consciousness, Inc. v. Lee, 505 U.
S. 672, 678. Section 10(c) vests the cable operator with a power
under federal law, defined by reference to the content of speech, to
override the franchise agreement and undercut the public forum the
agreement creates. Where the government thus excludes speech
from a public forum on the basis of its content, the Constitution
requires that the regulation be given the most exacting scrutiny.
See, e.g., ibid. Section 10(c) cannot survive strict scrutiny.
Although Congress has a compelling interest in protecting children
from indecent speech, see, e.g., Sable Communications, 492 U. S.,
at 126, Section 10(c) is not narrowly tailored to serve that interest,
since, among other things, there is no basis in the record
establishing that Section 10(c) is the least restrictive means to
accomplish that purpose. See, e.g., Sable Communications, supra,
at 128-130. The Government's argument for not applying strict
scrutiny here, that indecent cablecasts are subject to the lower
standard of review applied in FCC v. Pacifica Foundation, 438 U.
S. 726, 748, is not persuasive, since that lower standard does not
even apply to infringements on the liberties of cable operators,
Turner Broadcasting System, Inc. v. FCC, 512 U. S. __, __.
There is less cause for a lower standard when the rights of cable
programmers and viewers are at stake. Pp. 2-5, 12-16, 24-31.
JUSTICE THOMAS, joined by THE CHIEF JUSTICE and
JUSTICE SCALIA, agreed that Section 10(a) is constitutionally
permissible. Cable operators are generally entitled to much the same
First Amendment protection as the print media. Turner
Broadcasting System, Inc. v. FCC, 512 U. S. __, __, __. Because
Miami Herald Publishing Co. v. Tornillo, 418 U. S. 241, and
Pacific Gas & Elec. Co. v. Public Util. Comm'n of Cal., 475 U. S.
1, are therefore applicable, see Turner, supra, at __ (O'CONNOR,
J., concurring in part and dissenting in part), the cable operator's
editorial rights have general primacy under the First Amendment
over the rights of programmers to transmit and of viewers to watch.
None of the petitioners are cable operators; they are all cable viewers
or access programmers or their representative organizations.
Because the cable access provisions are part of a scheme that
restricts operators' free speech rights and expands the speaking
opportunities of programmers who have no underlying
constitutional right to speak through the cable medium, the
programmers cannot challenge the scheme, or a particular part of it,
as an abridgment of their "freedom of speech." Sections 10(a) and
(c) merely restore part of the editorial discretion an operator would
have absent Government regulation. Pp. 1-15.
BREYER, J., announced the judgment of the Court and delivered
the opinion of the Court with respect to Part III, in which
STEVENS, O'CONNOR, KENNEDY, SOUTER, and
GINSBURG, JJ., joined, an opinion with respect to Parts I, II, and
V, in which STEVENS, O'CONNOR and SOUTER, JJ., joined,
and an opinion with respect to Parts IV and VI, in which STEVENS
and SOUTER, JJ., joined. STEVENS, J., and SOUTER, J., filed
concurring opinions. O'CONNOR, J., filed an opinion concurring
in part and dissenting in part. KENNEDY, J., filed an opinion
concurring in part, concurring in the judgment in part, and
dissenting in part, in which GINSBURG, J., joined. THOMAS,
J., filed an opinion concurring in the judgment in part and dissenting
in part, in which REHNQUIST, C. J., and SCALIA, J., joined.
*Together with No. 95-227, Alliance for Community Media et al. v.
Federal Communications Commission et al., also on certiorari to the
same court.
NOTICE: This opinion is subject to formal revision before
publication in the preliminary print of the United States Reports.
Readers are requested to notify the Reporter of Decisions, Supreme
Court of the United States, Washington, D.C. 20543, of any
typographical or other formal errors, in order that corrections may
be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
Nos. 95-124 AND 95-227
DENVER AREA EDUCATIONAL TELECOMMUNICATIONS
CONSORTIUM, INC., ET AL., PETITIONERS 95-124
v.
FEDERAL COMMUNICATIONS COMMISSION ET AL.
ALLIANCE FOR COMMUNITY MEDIA, ET AL.,
PETITIONERS 95-227
v.
FEDERAL COMMUNICATIONS COMMISSION ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA
CIRCUIT
[June 28, 1996]
JUSTICE BREYER announced the judgment of the Court and
delivered the opinion of the Court with respect to Part III, an
opinion with respect to Parts I, II, and V, in which JUSTICE
STEVENS, JUSTICE O'CONNOR, and JUSTICE SOUTER join,
and an opinion with respect to Parts IV and VI, in which JUSTICE
STEVENS and JUSTICE SOUTER join.
These cases present First Amendment challenges to three statutory
provisions that seek to regulate the broadcasting of "patently
offensive" sex-related material on cable television. Cable Television
Consumer Protection and Competition Act of 1992 (1992 Act or
Act), 106 Stat. 1486, Sections 10(a), 10(b), and 10(c), 47 U. S. C.
Sections 532(h), 532(j), and note following Section 531. The
provisions apply to programs broadcast over cable on what are
known as "leased access channels" and "public, educational, or
governmental channels." Two of the provisions essentially permit a
cable system operator to prohibit the broadcasting of "programming"
that the "operator reasonably believes describes or depicts sexual or
excretory activities or organs in a patently offensive manner." 1992
Act, Section 10(a); see Section 10(c). See also In re Implementation
of Section 10 of the Cable Consumer Protection and Competition
Act of 1992: Indecent Programming and Other Types of Materials
on Cable Access Channels, First Report and Order, 8 FCC Rcd 998
(1993) (First Report and Order); In re Implementation of Section 10
of the Cable Consumer Protection and Competition Act of 1992,
Indecent Programming and Other Types of Materials on Cable
Access Channels, Second Report and Order, 8 FCC Rcd 2638
(1993) (Second Report and Order). The remaining provision
requires cable system operators to segregate certain "patently
offensive" programming, to place it on a single channel, and to
block that channel from viewer access unless the viewer requests
access in advance and in writing. 1992 Act, Section 10(b); 47 CFR
Section 76.701(g) (1995).
We conclude that the first provision--that permits the operator to
decide whether or not to broadcast such programs on leased access
channels--is consistent with the First Amendment. The second
provision, that requires leased channel operators to segregate and to
block that programming, and the third provision, applicable to
public, educational, and governmental channels, violate the First
Amendment, for they are not appropriately tailored to achieve the
basic, legitimate objective of protecting children from exposure to
"patently offensive" material.
Cable operators typically own a physical cable network used to
convey programming over several dozen cable channels into
subscribers' houses. Program sources vary from channel to
channel. Most channels carry programming produced by
independent firms, including "many national and regional cable
programming networks that have emerged in recent years," Turner
Broadcasting System, Inc. v. FCC, 512 U. S. ___, ___ (1994)
(slip op., at 3), as well as some programming that the system
operator itself (or an operator affiliate) may provide. Other channels
may simply retransmit through cable the signals of over-the-air
broadcast stations. Id., at ___ (slip op., at 3-4). Certain special
channels here at issue, called "leased channels" and "public,
educational, or governmental channels," carry programs provided
by those to whom the law gives special cable system access rights.
A "leased channel" is a channel that federal law requires a cable
system operator to reserve for commercial lease by unaffiliated third
parties. About 10 to 15 percent of a cable system's channels would
typically fall into this category. See 47 U. S. C. Section 532(b).
"[P]ublic, educational, or governmental channels" (which we shall
call "public access" channels) are channels that, over the years, local
governments have required cable system operators to set aside for
public, educational, or governmental purposes as part of the
consideration an operator gives in return for permission to install
cables under city streets and to use public rights-of-way. See
Section 531; see also H. R. Rep. No. 98-934, p. 30 (1984)
(authorizing local authorities to require creation of public access
channels). Between 1984 and 1992 federal law (as had much pre-
1984 state law, in respect to public access channels) prohibited cable
system operators from exercising any editorial control over the
content of any program broadcast over either leased or public access
channels. See 47 U. S. C. Sections 531(e) (public access),
532(c)(2) (leased access).
In 1992, in an effort to control sexually explicit programming
conveyed over access channels, Congress enacted the three
provisions before us. The first two provisions relate to leased
channels. The first says:
"This subsection shall permit a cable operator to enforce
prospectively a written and published policy of prohibiting
programming that the cable operator reasonably believes describes
or depicts sexual or excretory activities or organs in a patently
offensive manner as measured by contemporary community
standards." 1992 Act, Section 10(a)(2), 106 Stat. 1486.
The second provision applicable only to leased channels requires
cable operators to segregate and to block similar programming if
they decide to permit, rather than to prohibit, its broadcast. The
provision tells the Federal Communications Commission (FCC or
Commission) to promulgate regulations that will (a) require
"programmers to inform cable operators if the program[ming] would
be indecent as defined by Commission regulations"; (b) require
"cable operators to place" such material "on a single channel"; and
(c) require "cable operators to block such single channel unless the
subscriber requests access to such channel in writing." 1992 Act,
Section 10(b)(1). The Commission issued regulations defining the
material at issue in terms virtually identical to those we have already
set forth, namely as descriptions or depictions of "sexual or
excretory activities or organs in a patently offensive manner" as
measured by the cable viewing community. First Report and Order,
Paragraphs 33-38, 8 FCC Rcd, at 1003-1004. The regulations
require the cable operators to place this material on a single channel
and to block it (say, by scrambling). They also require the system
operator to provide access to the blocked channel "within 30 days"
of a subscriber's written request for access and to re-block it within
30 days of a subscriber's request to do so. 47 CFR Section
76.701(c) (1995).
The third provision is similar to the first provision, but applies only
to public access channels. The relevant statutory section instructs
the FCC to promulgate regulations that will
"enable a cable operator of a cable system to prohibit the use, on
such system, of any channel capacity of any public, educational, or
governmental access facility for any programming which contains
obscene material, sexually explicit conduct, or material soliciting or
promoting unlawful conduct." 1992 Act, Section 10(c), ibid.
The FCC, carrying out this statutory instruction, promulgated
regulations defining "sexually explicit" in language almost identical
to that in the statute's leased channel provision, namely as
descriptions or depictions of "sexual or excretory activities or organs
in a patently offensive manner" as measured by the cable viewing
community. See 47 CFR Section 76.702 (1995) (incorporating
definition from 47 CFR Section 76.701(g)).
The upshot is, as we said at the beginning, that the federal law
before us (the statute as implemented through regulations) now
permits cable operators either to allow or to forbid the transmission
of "patently offensive" sex-related materials over both leased and
public access channels, and requires those operators, at a minimum,
to segregate and to block transmission of that same material on
leased channels.
Petitioners, claiming that the three statutory provisions, as
implemented by the Commission regulations, violate the First
Amendment, sought judicial review of the Commission's First
Report and Order and its Second Report and Order in the United
States Court of Appeals for the District of Columbia Circuit. A
panel of that Circuit agreed with petitioners that the provisions
violated the First Amendment. Alliance for Community Media v.
FCC, 10 F. 3d 812 (1993). The entire Court of Appeals, however,
heard the case en banc and reached the opposite conclusion. It held
all three statutory provisions (as implemented) were consistent with
the First Amendment. Alliance for Community Media v. FCC, 56
F. 3d 105 (1995). Four of the eleven en banc appeals court judges
dissented. Two of the dissenting judges concluded that all three
provisions violated the First Amendment. Two others thought that
either one, or two, but not all three of the provisions, violated the
First Amendment. We granted certiorari to review the en banc
Court's First Amendment determinations.
We turn initially to the provision that permits cable system operators
to prohibit "patently offensive" (or "indecent") programming
transmitted over leased access channels. 1992 Act, Section 10(a).
The Court of Appeals held that this provision did not violate the
First Amendment because the First Amendment prohibits only
"Congress" (and, through the Fourteenth Amendment, a "State"),
not private individuals, from "abridging the freedom of speech."
Although the court said that it found no "state action," 56 F. 3d, at
113, it could not have meant that phrase literally, for, of course,
petitioners attack (as "abridg[ing] . . . speech") a congressional
statute--which, by definition, is an Act of "Congress." More likely,
the court viewed this statute's "permissive" provisions as not
themselves restricting speech, but, rather, as simply reaffirming the
authority to pick and choose programming that a private entity, say,
a private broadcaster, would have had in the absence of intervention
by any federal, or local, governmental entity.
We recognize that the First Amendment, the terms of which apply to
governmental action, ordinarily does not itself throw into
constitutional doubt the decisions of private citizens to permit, or to
restrict, speech--and this is so ordinarily even where those decisions
take place within the framework of a regulatory regime such as
broadcasting. Were that not so, courts might have to face the
difficult, and potentially restrictive, practical task of deciding which,
among any number of private parties involved in providing a
program (for example, networks, station owners, program editors,
and program producers), is the "speaker" whose rights may not be
abridged, and who is the speech-restricting "censor." Furthermore,
as this Court has held, the editorial function itself is an aspect of
"speech," see Turner, 512 U. S., at ___ (slip op., at 11-12), and a
court's decision that a private party, say, the station owner, is a
"censor," could itself interfere with that private "censor's" freedom
to speak as an editor. Thus, not surprisingly, this Court's First
Amendment broadcasting cases have dealt with governmental efforts
to restrict, not governmental efforts to provide or to maintain, a
broadcaster's freedom to pick and to choose programming.
Columbia Broadcasting System, Inc. v. Democratic National
Committee, 412 U. S. 94 (1973) (striking restrictions on
broadcaster's ability to refuse to carry political advertising); Red
Lion Broadcasting Co. v. FCC, 395 U. S. 367 (1969) (upholding
restrictions on editorial authority); FCC v. League of Women Voters
of Cal., 468 U. S. 364 (1984) (striking restrictions); cf.
Consolidated Edison Co. of N. Y. v. Public Serv. Comm'n of N.
Y., 447 U. S. 530 (1980) (striking ban on political speech by public
utility using its billing envelopes as a broadcast medium); Central
Hudson Gas & Elec. Corp. v. Public Serv. Comm'n of N. Y., 447
U. S. 557 (1980) (striking restriction on public utility advertising).
Nonetheless, petitioners, while conceding that this is ordinarily so,
point to circumstances that, in their view, make the analogy with
private broadcasters inapposite and make this case a special one,
warranting a different constitutional result. As a practical matter,
they say, cable system operators have considerably more power to
"censor" program viewing than do broadcasters, for individual
communities typically have only one cable system, linking
broadcasters and other program providers with each community's
many subscribers. See Turner, supra, at ___ (slip op., at 8) (only
one cable system in most communities; nationally more than 60% of
homes subscribe to cable, which then becomes the primary or sole
source of video programming in the overwhelming majority of these
homes). Moreover, concern about system operators' exercise of
this considerable power originally led government--local and
federal--to insist that operators provide leased and public access
channels free of operator editorial control. H. R. Rep. No. 98-934,
at 30-31. To permit system operators to supervise programming on
leased access channels will create the very private-censorship risk
that this anticensorship effort sought to avoid. At the same time,
petitioners add, cable systems have two relevant special
characteristics. They are unusually involved with government, for
they depend upon government permission and government facilities
(streets, rights-of-way) to string the cable necessary for their
services. And in respect to leased channels, their speech interests
are relatively weak because they act less like editors, such as
newspapers or television broadcasters, than like common carriers,
such as telephone companies.
Under these circumstances, petitioners conclude, Congress'
"permissive" law, in actuality, will "abridge" their free speech. And
this Court should treat that law as a congressionally imposed,
content-based, restriction unredeemed as a properly tailored effort to
serve a "compelling interest." See Simon & Schuster, Inc. v.
Members of N. Y. State Crime Victims Bd., 502 U. S. 105, 118
(1991); Sable Communications of Cal., Inc. v. FCC, 492 U. S.
115, 126 (1989). They further analogize the provisions to
constitutionally forbidden content-based restrictions upon speech
taking place in "public forums" such as public streets, parks, or
buildings dedicated to open speech and communication. See
Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U. S.
788, 802 (1985); Perry Ed. Assn. v. Perry Local Educators' Assn.,
460 U. S. 37, 45 (1983); see also H. R. Rep. No. 98-934, supra, at
30 (identifying public access channels as the electronic equivalent of
a "speaker's soap box"). And, finally, petitioners say that the legal
standard the law contains (the "patently offensive" standard) is
unconstitutionally vague. See, e.g., Interstate Circuit, Inc. v.
Dallas, 390 U. S. 676 (1968) (rejecting censorship ordinance as
vague, even though it was intended to protect children).
Like the petitioners, JUSTICES KENNEDY and THOMAS would
have us decide this case simply by transferring and applying literally
categorical standards this Court has developed in other contexts.
For JUSTICE KENNEDY, leased access channels are like a
common carrier, cablecast is a protected medium, strict scrutiny
applies, Section 10(a) fails this test, and, therefore, Section 10(a) is
invalid. Post, at 17-20, 27-30. For JUSTICE THOMAS, the case
is simple because the cable operator who owns the system over
which access channels are broadcast, like a bookstore owner with
respect to what it displays on the shelves, has a predominant First
Amendment interest. Post, at 6-7, 12-13. Both categorical
approaches suffer from the same flaws: they import law developed
in very different contexts into a new and changing environment, and
they lack the flexibility necessary to allow government to respond to
very serious practical problems without sacrificing the free exchange
of ideas the First Amendment is designed to protect.
The history of this Court's First Amendment jurisprudence,
however, is one of continual development, as the Constitution's
general command that "Congress shall make no law . . . abridging
the freedom of speech, or of the press," has been applied to new
circumstances requiring different adaptations of prior principles and
precedents. The essence of that protection is that Congress may not
regulate speech except in cases of extraordinary need and with the
exercise of a degree of care that we have not elsewhere required.
See, e.g., Schenck v. United States, 249 U. S. 47, 51-52 (1919);
Abrams v. United States, 250 U. S. 616, 627-628 (1919) (Holmes,
J., dissenting); West Viginia Bd. of Ed. v. Barnette, 319 U. S. 624,
639 (1943); Texas v. Johnson, 491 U. S. 397, 418-420 (1989). At
the same time, our cases have not left Congress or the States
powerless to address the most serious problems. See, e.g.,
Chaplinsky v. New Hampshire, 315 U. S. 568 (1942); Young v.
American Mini Theaters, Inc. 427 U. S. 50 (1976); FCC v. Pacifica
Foundation, 438 U. S. 726 (1978).
Over the years, this Court has restated and refined these basic First
Amendment principles, adopting them more particularly to the
balance of competing interests and the special circumstances of each
field of application. See, e.g., New York Times Co. v. Sullivan,
376 U. S. 254 (1964) (allowing criticism of public officials to be
regulated by civil libel only if the plaintiff shows actual malice);
Gertz v. Robert Welch, Inc., 418 U. S. 323 (1974) (allowing
greater regulation of speech harming individuals who are not public
officials, but still requiring a negligence standard); Red Lion
Broadcasting Co. v. FCC, 395 U. S. 367 (1969) (employing highly
flexible standard in response to the scarcity problem unique to over-
the-air broadcast); Arkansas Writers' Project, Inc. v. Ragland, 481
U. S. 221, 231-232 (1987) (requiring "compelling state interest"
and a "narrowly drawn" means in context of differential taxation of
media); Sable, supra, at 126, 131 (applying "compelling interest,"
"least restrictive means," and "narrowly tailored" requirements to
indecent telephone communications); Turner, 512 U. S., at ___ (slip
op., at 16) (using "heightened scrutiny" to address content-neutral
regulations of cable system broadcasts); Central Hudson Gas &
Elec. Corp., 447 U. S., at 566 (restriction on commercial speech
cannot be "more extensive than is necessary" to serve a "substantial"
government interest).
This tradition teaches that the First Amendment embodies an
overarching commitment to protect speech from Government
regulation through close judicial scrutiny, thereby enforcing the
Constitution's constraints, but without imposing judicial formulae
so rigid that they become a straightjacket that disables Government
from responding to serious problems. This Court, in different
contexts, has consistently held that the Government may directly
regulate speech to address extraordinary problems, where its
regulations are appropriately tailored to resolve those problems
without imposing an unnecessarily great restriction on speech.
JUSTICES KENNEDY AND THOMAS would have us further
declare which, among the many applications of the general approach
that this Court has developed over the years, we are applying here.
But no definitive choice among competing analogies (broadcast,
common carrier, bookstore) allows us to declare a rigid single
standard, good for now and for all future media and purposes. That
is not to say that we reject all the more specific formulations of the
standard--they appropriately cover the vast majority of cases
involving Government regulation of speech. Rather, aware as we
are of the changes taking place in the law, the technology, and the
industrial structure, related to telecommunications, see, e.g.,
Telecommunications Act of 1996, 110 Stat. 56; S. Rep. No. 104-23
(1995); H. R. Rep. No. 104-204 (1995), we believe it unwise and
unnecessary definitively to pick one analogy or one specific set of
words now. See Columbia Broadcasting, 412 U. S., at 102 ("The
problems of regulation are rendered more difficult because the
broadcast industry is dynamic in terms of technological change;
solutions adequate a decade ago are not necessarily so now, and
those acceptable today may well be outmoded 10 years hence");
Pacifica, supra, at 748 ("We have long recognized that each medium
of expression presents special First Amendment problems.") We
therefore think it premature to answer the broad questions that
JUSTICES KENNEDY AND THOMAS raise in their efforts to find
a definitive analogy, deciding, for example, the extent to which
private property can be designated a public forum, compare post, at
14-16 (KENNEDY, J., concurring in part and dissenting in part),
with post, at 15-19 (THOMAS, J., dissenting in part and concurring
in judgment); whether public access channels are a public forum,
post, at 12-13 (KENNEDY J.); whether the Government's
viewpoint neutral decision to limit a public forum is subject to the
same scrutiny as a selective exclusion from a pre-existing public
forum, post, at 20-25 (KENNEDY, J.); whether exclusion from
common carriage must for all purposes be treated like exclusion
from a public forum, post, at 18-19 (KENNEDY, J.); and whether
the interests of the owners of communications media always
subordinate the interests of all other users of a medium, post, at 6-7
(THOMAS, J.).
Rather than decide these issues, we can decide this case more
narrowly, by closely scrutinizing Section 10(a) to assure that it
properly addresses an extremely important problem, without
imposing, in light of the relevant interests, an unnecessarily great
restriction on speech. The importance of the interest at stake here--
protecting children from exposure to patently offensive depictions of
sex; the accommodation of the interests of programmers in
maintaining access channels and of cable operators in editing the
contents of their channels; the similarity of the problem and its
solution to those at issue in Pacifica, supra; and the flexibility
inherent in an approach that permits private cable operators to make
editorial decisions, lead us to conclude that Section 10(a) is a
sufficiently tailored response to an extraordinarily important
problem.
First, the provision before us comes accompanied with an extremely
important justification, one that this Court has often found
compelling--the need to protect children from exposure to patently
offensive sex-related material. Sable Communications, 492 U. S., at
126; Ginsberg v. New York, 390 U. S. 629, 639-640 (1968); New
York v. Ferber, 458 U. S. 747, 756-757 (1982).
Second, the provision arises in a very particular context--
congressional permission for cable operators to regulate
programming that, but for a previous Act of Congress, would have
had no path of access to cable channels free of an operator's control.
The First Amendment interests involved are therefore complex, and
involve a balance between those interests served by the access
requirements themselves (increasing the availability of avenues of
expression to programmers who otherwise would not have them),
H. R. Rep. No. 98-934, pp. 31-36 (1984), and the disadvantage to
the First Amendment interests of cable operators and other
programmers (those to whom the cable operator would have
assigned the channels devoted to access). See Turner, 512 U. S., at
___ (slip op., at 11-12).
Third, the problem Congress addressed here is remarkably similar to
the problem addressed by the FCC in Pacifica, and the balance
Congress struck is commensurate with the balance we approved
there. In Pacifica this Court considered a governmental ban of a
radio broadcast of "indecent" materials, defined in part, like the
provisions before us, to include
"`language that describes, in terms patently offensive as measured
by contemporary community standards for the broadcast medium,
sexual or excretory activities and organs, at times of the day when
there is a reasonable risk that children may be in the audience.'" 438
U. S., at 732 (quoting 56 F. C. C. 2d 94, 98 (1975)).
The Court found this ban constitutionally permissible primarily
because "broadcasting is uniquely accessible to children" and
children were likely listeners to the program there at issue--an
afternoon radio broadcast. Id., at 749-750. In addition, the Court
wrote, "the broadcast media have established a uniquely pervasive
presence in the lives of all Americans," id., at 748, "[p]atently
offensive, indecent material . . . confronts the citizen, not only in
public, but also in the privacy of the home," generally without
sufficient prior warning to allow the recipient to avert his or her eyes
or ears, ibid.; and "[a]dults who feel the need may purchase tapes
and records or go to theaters and nightclubs" to hear similar
performances. Id., at 750, n. 28.
All these factors are present here. Cable television broadcasting,
including access channel broadcasting, is as "accessible to children"
as over-the-air broadcasting, if not more so. See Heeter,
Greenberg, Baldwin, Paugh, Srigley, & Atkin, Parental Influences
on Viewing Style, in Cableviewing 140 (C. Heeter & B. Greenberg
eds. 1988) (children spend more time watching television and view
more channels than do their parents, whether their household
subscribes to cable or receives television over the air). Cable
television systems, including access channels, "have established a
uniquely pervasive presence in the lives of all Americans." Pacifica,
supra, at 748. See Jost, The Future of Television, 4 The CQ
Researcher 1131, 1146 (Dec. 23, 1994) (63% of American homes
subscribe to cable); Greenberg, Heeter, D'Alessio, & Sipes, Cable
and Noncable Viewing Style Comparisons, in Cableviewing, at 207
(cable households spend more of their day, on average, watching
television, and will watch more channels, than households without
cable service). "Patently offensive" material from these stations can
"confron[t] the citizen" in the "privacy of the home," Pacifica,
supra, at 748, with little or no prior warning. Cableviewing, at 217-
218 (while cable subscribers tend to use guides more than do
broadcast viewers, there was no difference among these groups in
the amount of viewing that was planned, and, in fact, cable
subscribers tended to sample more channels before settling on a
program, thereby making them more, not less, susceptible to
random exposure to unwanted materials). There is nothing to stop
"adults who feel the need" from finding similar programming
elsewhere, say, on tape or in theaters. In fact, the power of cable
systems to control home program viewing is not absolute. Over-
the-air broadcasting and direct broadcast satellites already provide
alternative ways for programmers to reach the home, and are likely
to do so to a greater extent in the near future. See generally
Telecommunications Act of 1996, 110 Stat. 56, Sections 201
(advanced television services), 205 (direct broadcast satellite), 302
(video programming by telephone companies), and 304 (availability
of navigation devices to enhance multichannel programming); L.
Johnson, Toward Competition in Cable Television (1994).
Fourth, the permissive nature of Section 10(a) means that it likely
restricts speech less than, not more than, the ban at issue in Pacifica.
The provision removes a restriction as to some speakers--namely,
cable operators. See supra, at 13. Moreover, although the provision
does create a risk that a program will not appear, that risk is not the
same as the certainty that accompanies a governmental ban. In fact,
a glance at the programming that cable operators allow on their own
(nonaccess) channels suggests that this distinction is not theoretical,
but real. See App. 393 (regular channel broadcast of Playboy and
"Real Sex" programming). Finally, the provision's permissive
nature brings with it a flexibility that allows cable operators, for
example, not to ban broadcasts, but, say, to rearrange broadcast
times, better to fit the desires of adult audiences while lessening the
risks of harm to children. See First Report and Order Paragraph 31,
8 FCC Rcd, at 1003 (interpreting the Act's provisions to allow cable
operators broad discretion over what to do with offensive materials).
In all these respects, the permissive nature of the approach taken by
Congress renders this measure appropriate as a means of achieving
the underlying purpose of protecting children.
Of course, cable system operators may not always rearrange or
reschedule patently offensive programming. Sometimes, as
petitioners fear, they may ban the programming instead. But the
same may be said of Pacifica's ban. In practice, the FCC's daytime
broadcast ban could have become a total ban, depending upon how
private operators (programmers, station owners, networks)
responded to it. They would have had to decide whether to
reschedule the daytime show for nighttime broadcast in light of
comparative audience demand and a host of other practical factors
that similarly would determine the practical outcomes of the
provisions before us. The upshot, in both cases, must be
uncertainty as to practical consequences--of the governmental ban in
the one case and of the permission in the other. That common
uncertainty makes it difficult to say the provision here is, in any
respect, more restrictive than the order in Pacifica. At the same
time, in the respects we discussed, the provision is significantly less
restrictive.
The existence of this complex balance of interests persuades us that
the permissive nature of the provision, coupled with its viewpoint-
neutral application, is a constitutionally permissible way to protect
children from the type of sexual material that concerned Congress,
while accommodating both the First Amendment interests served by
the access requirements and those served in restoring to cable
operators a degree of the editorial control that Congress removed in
1984.
Our basic disagreement with JUSTICE KENNEDY is narrow. Like
him, we believe that we must scrutinize Section 10(a) with the
greatest care. Like JUSTICES KENNEDY and THOMAS, we
believe that the interest of protecting children that Section 10(a)
purports to serve is compelling. But we part company with
JUSTICE KENNEDY on two issues. First, JUSTICE
KENNEDY'S focus on categorical analysis forces him to disregard
the cable system operators' interests. Post, at 27-28. We, on the
other hand, recognize that in the context of cable broadcast that
involves an access requirement (here, its partial removal), and unlike
in most cases where we have explicitly required "narrow tailoring,"
the expressive interests of cable operators do play a legitimate role.
Cf. Turner, 512 U. S., at __-__ (slip op., at 11-12). While we
cannot agree with JUSTICE THOMAS that everything turns on the
rights of the cable owner, see post, at 12-13, we also cannot agree
with JUSTICE KENNEDY that we must ignore the expressive
interests of cable operators altogether. Second, JUSTICE
KENNEDY'S application of a very strict "narrow tailoring" test
depends upon an analogy with a category ("the public forum
cases"), which has been distilled over time from the similarities of
many cases. Rather than seeking an analogy to a category of cases,
however, we have looked to the cases themselves. And, as we have
said, we found that Pacifica provides the closest analogy and lends
considerable support to our conclusion.
Petitioners and JUSTICE KENNEDY, see post, at 19, 25, argue
that the opposite result is required by two other cases: Sable
Communications of Cal., Inc. v. FCC, 492 U. S. 115 (1989), a
case in which this Court found unconstitutional a statute that banned
"indecent" telephone messages, and Turner, in which this Court
stated that cable broadcast receives full First Amendment protection.
See Turner, supra, at __ (slip op., at 12-16). The ban at issue in
Sable, however, was not only a total governmentally imposed ban
on a category of communications, but also involved a
communications medium, telephone service, that was significantly
less likely to expose children to the banned material, was less
intrusive, and allowed for significantly more control over what
comes into the home than either broadcasting or the cable
transmission system before us. See 492 U. S., at 128. The Court's
distinction in Turner, furthermore, between cable and broadcast
television, relied on the inapplicability of the spectrum scarcity
problem to cable. See 512 U. S., at ___, (slip op., at 12-16).
While that distinction was relevant in Turner to the justification for
structural regulations at issue there (the "must carry" rules), it has
little to do with a case that involves the effects of television viewing
on children. Those effects are the result of how parents and children
view television programming, and how pervasive and intrusive that
programming is. In that respect, cable and broadcast television
differ little, if at all. See supra, at 14-15. JUSTICE KENNEDY
would have us decide that all common carriage exclusions are
subject to the highest scrutiny, see post, at 18-21, and then decide
the case on the basis of categories that provide imprecise analogies
rather than on the basis of a more contextual assessment, consistent
with our First Amendment tradition, of assessing whether Congress
carefully and appropriately addressed a serious problem.
The petitioners also rely on this Court's "public forum" cases. They
point to Perry Ed. Assn. v. Perry Local Educators' Assn., 460 U.
S., at 45, a case in which this Court said that "public forums" are
"places" that the government "has opened for use by the public as a
place for expressive activity," or which "by long tradition . . . have
been devoted to assembly and debate." Id., at 45. See also
Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U. S.,
at 801 (assuming public forums may include "private property
dedicated to public use"). They add that the government cannot
"enforce a content-based exclusion" from a public forum unless
"necessary to serve a compelling state interest" and "narrowly
drawn." Perry, supra, at 45. They further argue that the statute's
permissive provisions unjustifiably exclude material, on the basis of
content, from the "public forum" that the government has created in
the form of access channels. JUSTICE KENNEDY adds by
analogy that the decision to exclude certain content from common
carriage is similarly subject to strict scrutiny, and here does not
satisfy that standard of review. See post, at 18-21.
For three reasons, however, it is unnecessary, indeed, unwise, for
us definitively to decide whether or how to apply the public forum
doctrine to leased access channels. First, while it may be that
content-based exclusions from the right to use common carriers
could violate the First Amendment, see post, at 18-21 (KENNEDY,
J.), it is not at all clear that the public forum doctrine should be
imported wholesale into the area of common carriage regulation. As
discussed above, we are wary of the notion that a partial analogy in
one context, for which we have developed doctrines, can compel a
full range of decisions in such a new and changing area. See supra,
at 9-12. Second, it is plain from this Court's cases that a public
forum "may be created for a limited purpose." Perry, supra, at 46,
n. 7; see also Cornelius, supra, at 802 ("[T]he government `is not
required to indefinitely retain the open character of the facility'")
(quoting Perry, supra, at 46). Our cases have not yet determined,
however, that the Government's decision to dedicate a public forum
to one type of content or another is necessarily subject to the highest
level of scrutiny. Must a local government, for example, show a
compelling state interest if it builds a band shell in the park and
dedicates it solely to classical music (but not to jazz)? The answer is
not obvious. Cf. Perry, supra, at 46, n. 7. But, at a minimum, this
case does not require us to answer it. Finally, and most important,
the effects of Congress' decision on the interests of programmers,
viewers, cable operators, and children are the same, whether we
characterize Congress' decision as one that limits access to a public
forum, discriminates in common carriage, or constrains speech
because of its content. If we consider this particular limitation of
indecent television programming acceptable as a constraint on
speech, we must no less accept the limitation it places on access to
the claimed public forum or on use of a common carrier.
Consequently, if one wishes to view the permissive provisions
before us through a "public forum" lens, one should view those
provisions as limiting the otherwise totally open nature of the forum
that leased access channels provide for communication of other than
patently offensive sexual material--taking account of the fact that the
limitation was imposed in light of experience gained from
maintaining a totally open "forum." One must still ask whether the
First Amendment forbids the limitation. But unless a label alone
were to make a critical First Amendment difference (and we think
here it does not), the features of this case that we have already
discussed--the government's interest in protecting children, the
"permissive" aspect of the statute, and the nature of the medium--
sufficiently justify the "limitation" on the availability of this forum.
Finally, petitioners argue that the definition of the materials subject
to the challenged provisions is too vague, thereby granting cable
system operators too broad a program-screening authority. Cf.
Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U. S.
489, 498 (1982) (citing Grayned v. Rockford, 408 U. S. 104, 108-
109 (1972)) (vague laws may lead to arbitrary enforcement);
Dombrowski v. Pfister, 380 U. S. 479, 486-487 (1965)
(uncertainty may perniciously chill speech). That definition,
however, uses language similar to language previously used by this
Court for roughly similar purposes.
The provisions, as augmented by FCC regulations, permit cable
system operators to prohibit
"programming that the cable operator reasonably believes describes
or depicts sexual or excretory activities or organs in a patently
offensive manner as measured by contemporary community
standards." 1992 Act, Section 10(a), 106 Stat. 1486.
See also 47 CFR Section 76.702 (1995) (reading approximately the
same definition into Section 10(c)). This language is similar to
language adopted by this Court in Miller v. California, 413 U. S.
15, 24 (1973) as a "guidelin[e]" for identifying materials that states
may constitutionally regulate as obscene. In Miller, the Court
defined obscene sexual material (material that lacks First
Amendment protection) in terms of
"(a) whether the average person, applying contemporary community
standards would find that the work, taken as a whole, appeals to the
prurient interest . . . ; (b) whether the work depicts or describes, in a
patently offensive way, sexual conduct specifically defined by the
applicable state law; and (c) whether the work, taken as a whole,
lacks serious literary, artistic, political, or scientific value." Ibid.
(emphasis added; internal quotation marks omitted).
The language, while vague, attempts to identify the category of
materials that Justice Stewart thought could be described only in
terms of "I know it when I see it." Jacobellis v. Ohio, 378 U. S.
184, 197 (1964) (Stewart, J., concurring). In Section 10(a) and the
FCC regulations, without Miller's qualifiers, the language would
seem to refer to material that would be offensive enough to fall
within that category but for the fact that the material also has
"serious literary, artistic, political or scientific value" or nonprurient
purposes.
This history suggests that the statute's language aims at the kind of
programming to which its sponsors referred--pictures of oral sex,
bestiality, and rape, see 138 Cong. Rec. S642, S646 (Jan. 30,
1992) (statement of Sen. Helms)--and not at scientific or educational
programs (at least unless done with a highly unusual lack of concern
for viewer reaction). Moreover, as this Court pointed out in
Pacifica, what is "patently offensive" depends on context (the kind
of program on which it appears), degree (not "an occasional
expletive"), and time of broadcast (a "pig" is offensive in "the
parlor" but not the "barnyard"). 438 U. S., at 748, 750.
Programming at two o'clock in the morning is seen by a basically
adult audience and the "patently offensive" must be defined with that
fact in mind.
Further, the statute protects against overly broad application of its
standards insofar as it permits cable system operators to screen
programs only pursuant to a "written and published policy." 1992
Act, Section 10(a), 106 Stat. 1486. A cable system operator would
find it difficult to show that a leased access program prohibition
reflects a rational "policy" if the operator permits similarly
"offensive" programming to run elsewhere on its system at
comparable times or in comparable ways. We concede that the
statute's protection against overly broad application is somewhat
diminished by the fact that it permits a cable operator to ban
programming that the operator "reasonably believes" is patently
offensive. Ibid. (emphasis added). But the "reasonabl[e] belie[f]"
qualifier here, as elsewhere in the law, seems designed not to
expand the category at which the law aims, but, rather, to provide a
legal excuse, for (at least) one honest mistake, from liability that
might otherwise attach. Cf. Waters v. Churchill, 511 U. S. ___,
___ (1994) (slip op., at 1) (SOUTER, J., concurring) (public
employer's reasonable belief that employee engaged in unprotected
speech excuses liability); United States v. United States Gypsum
Co., 438 U. S. 422, 453-455, and n. 29 (1978) ("`meeting
competition'" defense in antitrust based on reasonable belief in the
necessity to meet competition); Pierson v. Ray, 386 U. S. 547, 555-
557 (1967) (police officer has defense to constitutional claim, as did
officers of the peace at common law in actions for false arrest, when
the officer reasonably believed the statute whose violation
precipitated the arrest was valid). And the contours of the shield--
reasonableness--constrain the discretion of the cable operator as
much as they protect it. If, for example, a court had already found
substantially similar programming to be beyond the pale of "patently
offensive" material, or if a local authority overseeing the local
public, governmental, or educational channels had indicated that
materials of the type that the cable operator decides to ban were not
"patently offensive" in that community, then the cable operator
would be hard pressed to claim that the exclusion of the material was
"reasonable." We conclude that the statute is not impermissibly
vague.
For the reasons discussed, we conclude that Section 10(a) is
consistent with the First Amendment.
The statute's second provision significantly differs from the first,
for it does not simply permit, but rather requires, cable system
operators to restrict speech--by segregating and blocking "patently
offensive" sex-related material appearing on leased channels (but not
on other channels). 1992 Act, Section 10(b). In particular, as
previously mentioned, see supra, at 4-5, this provision and its
implementing regulations require cable system operators to place
"patently offensive" leased channel programming on a separate
channel; to block that channel; to unblock the channel within 30 days
of a subscriber's written request for access; and to reblock the
channel within 30 days of a subscriber's request for reblocking.
1992 Act, Section 10(b); 47 CFR Sections 76.701(b), (c), (g)
(1995). Also, leased channel programmers must notify cable
operators of an intended "patently offensive" broadcast up to 30
days before its scheduled broadcast date. Sections 76.701(d), (g).
These requirements have obvious restrictive effects. The several up-
to-30-day delays, along with single channel segregation, mean that a
subscriber cannot decide to watch a single program without
considerable advance planning and without letting the "patently
offensive" channel in its entirety invade his household for days,
perhaps weeks, at a time. These restrictions will prevent
programmers from broadcasting to viewers who select programs
day by day (or, through "surfing," minute by minute); to viewers
who would like occasionally to watch a few, but not many, of the
programs on the "patently offensive" channel; and to viewers who
simply tend to judge a program's value through channel reputation,
i.e., by the company it keeps. Moreover, the "written notice"
requirement will further restrict viewing by subscribers who fear for
their reputations should the operator, advertently or inadvertently,
disclose the list of those who wish to watch the "patently offensive"
channel. Cf. Lamont v. Postmaster General, 381 U. S. 301, 307
(1965) (finding unconstitutional a requirement that recipients of
Communist literature notify the Post Office that they wish to receive
it). Further, the added costs and burdens that these requirements
impose upon a cable system operator may encourage that operator to
ban programming that the operator would otherwise permit to run,
even if only late at night.
The Government argues that, despite these adverse consequences,
the "segregate and block" requirements are lawful because they are
"the least restrictive means of realizing" a "compelling interest,"
namely "protecting the physical and psychological well-being of
minors." See Brief for Federal Respondents 11 (quoting Sable, 492
U. S., at 126). It adds that, in any event, the First Amendment, as
applied in Pacifica, "does not require that regulations of indecency
on television be subject to the strictest" First Amendment "standard
of review." Ibid.
We agree with the Government that protection of children is a
"compelling interest." See supra, at 10. But we do not agree that the
"segregate and block" requirements properly accommodate the
speech restrictions they impose and the legitimate objective they seek
to attain. Nor need we here determine whether, or the extent to
which, Pacifica does, or does not, impose some lesser standard of
review where indecent speech is at issue, compare 438 U. S., at
745-748 (opinion of STEVENS, J.) (indecent materials enjoy lesser
First Amendment protection), with id., at 761-762 (Powell, J.,
concurring in part and concurring in judgment) (refusing to accept a
lesser standard for nonobscene, indecent material). That is because
once one examines this governmental restriction, it becomes
apparent that, not only is it not a "least restrictive alternative," and is
not "narrowly tailored" to meet its legitimate objective, it also seems
considerably "more extensive than necessary." That is to say, it
fails to satisfy this Court's formulations of the First Amendment's
"strictest," as well as its somewhat less "strict," requirements. See,
e.g., Sable, 492 U. S., at 126 ("compelling interest" and "least
restrictive means" requirements applied to indecent telephone
communications); id., at 131 (requiring "narrowly tailored" law);
Turner, 512 U. S., at ___ (slip op., at 16) (using "heightened
scrutiny" to address content-neutral structural regulations of cable
systems); id., at ___ (slip op., at 38) (quoting "`no greater than . . .
essential'" language from United States v. O'Brien, 391 U. S. 367,
377 (1968), as an example of "heightened," less-than-strictest, First
Amendment scrutiny); Central Hudson, 447 U. S., at 566
(restriction on commercial speech cannot be "more extensive than is
necessary"); Florida Bar v. Went For It, Inc., 515 U. S. ___, ___
(1995) (slip op., at 5) (restriction must be "narrowly drawn"); id., at
14 (there must be a "reasonable" "fit" with the objective that
legitimates speech restriction). The provision before us does not
reveal the caution and care that the standards underlying these
various verbal formulas impose upon laws that seek to reconcile the
critically important interest in protecting free speech with very
important, or even compelling, interests that sometimes warrant
restrictions.
Several circumstances lead us to this conclusion. For one thing, the
law, as recently amended, uses other means to protect children from
similar "patently offensive" material broadcast on unleased cable
channels, i.e., broadcast over any of a system's numerous ordinary,
or public access, channels. The law, as recently amended, requires
cable operators to "scramble or . . . block" such programming on
any (unleased) channel "primarily dedicated to sexually-oriented
programming." Telecommunications Act of 1996, Section 505, 110
Stat. 136 (emphasis added). In addition, cable operators must
honor a subscriber's request to block any, or all, programs on any
channel to which he or she does not wish to subscribe. Section 504,
ibid. And manufacturers, in the future, will have to make television
sets with a so-called "V-chip"--a device that will be able
automatically to identify and block sexually explicit or violent
programs. Section 551, id., at 139-142.
Although we cannot, and do not, decide whether the new provisions
are themselves lawful (a matter not before us), we note that they are
significantly less restrictive than the provision here at issue. They
do not force the viewer to receive (for days or weeks at a time) all
"patently offensive" programming or none; they will not lead the
viewer automatically to judge the few by the reputation of the many;
and they will not automatically place the occasional viewer's name
on a special list. They therefore inevitably lead us to ask why, if
they adequately protect children from "patently offensive" material
broadcast on ordinary channels, they would not offer adequate
protection from similar leased channel broadcasts as well?
Alternatively, if these provisions do not adequately protect children
from "patently offensive" material broadcast on ordinary channels,
how could one justify more severe leased channel restrictions when
(given ordinary channel programming) they would yield so little
additional protection for children?
The record does not answer these questions. It does not explain
why, under the new Act, blocking alone--without written access-
requests--adequately protects children from exposure to regular sex-
dedicated channels, but cannot adequately protect those children
from programming on similarly sex-dedicated channels that are
leased. It does not explain why a simple subscriber blocking
request system, perhaps a phone-call based system, would
adequately protect children from "patently offensive" material
broadcast on ordinary non-sex-dedicated channels (i.e., almost all
channels) but a far more restrictive segregate/block/written-access
system is needed to protect children from similar broadcasts on what
(in the absence of the segregation requirement) would be non-sex-
dedicated channels that are leased. Nor is there any indication
Congress thought the new ordinary channel protections less than
adequate.
The answers to the questions are not obvious. We have no
empirical reason to believe, for example, that sex-dedicated channels
are all (or mostly) leased channels, or that "patently offensive"
programming on non-sex-dedicated channels is found only (or
mostly) on leased channels. To the contrary, the parties' briefs (and
major city television guides) provide examples of what seems likely
to be such programming broadcast over both kinds of channels.
We recognize, as the Solicitor General properly points out, that
Congress need not deal with every problem at once. Cf. Semler v.
Oregon Bd. of Dental Examiners, 294 U. S. 608, 610 (1935) (the
legislature need not "strike at all evils at the same time"); and
Congress also must have a degree of leeway in tailoring means to
ends. Columbia Broadcasting, 412 U. S., at 102-103. But in light
of the 1996 statute, it seems fair to say that Congress now has tried
to deal with most of the problem. At this point, we can take
Congress' different, and significantly less restrictive, treatment of a
highly similar problem at least as some indication that more
restrictive means are not "essential" (or will not prove very helpful).
Cf. Boos v. Barry, 485 U. S. 312, 329 (1988) (existence of a less
restrictive statute suggested that a challenged ordinance, aimed at the
same problem, was overly restrictive).
The record's description and discussion of a different alternative--
the "lockbox"--leads, through a different route, to a similar
conclusion. The Cable Communications Policy Act of 1984 required
cable operators to provide
"upon the request of a subscriber, a device by which the subscriber
can prohibit viewing of a particular cable service during periods
selected by the subscriber." 47 U. S. C. Section 544(d)(2).
This device--the "lockbox"--would help protect children by
permitting their parents to "lock out" those programs or channels
that they did not want their children to see. See FCC 85-179,
Paragraph 132, 50 Fed. Reg. 18637, 18655 (1985) ("[T]he
provision for lockboxes largely disposes of issues involving the
Commission's standard for indecency"). The FCC, in upholding
the "segregate and block" provisions said that lockboxes protected
children (including, say, children with inattentive parents) less
effectively than those provisions. See First Report and Order
Paragraphs 14-15, 8 FCC Rcd, at 1000. But it is important to
understand why that is so.
The Government sets forth the reasons as follows:
"In the case of lockboxes, parents would have to discover that such
devices exist; find out that their cable operators offer them for sale;
spend the time and money to buy one; learn how to program the
lockbox to block undesired programs; and, finally, exercise
sufficient vigilance to ensure that they have, indeed, locked out
whatever indecent programming they do not wish their children to
view." Brief for Federal Respondents 37.
We assume the accuracy of this statement. But, the reasons do not
show need for a provision as restrictive as the one before us.
Rather, they suggest a set of provisions very much like those that
Congress placed in the 1996 Act.
No provision, we concede, short of an absolute ban, can offer
certain protection against assault by a determined child. We have
not, however, generally allowed this fact alone to justify
"`"reduc[ing] the adult population . . . to . . . only what is fit for
children."'" Sable, 492 U. S., at 128 (quoting Bolger v. Youngs
Drug Products Corp., 463 U. S. 60, 73 (1983), in turn quoting
Butler v. Michigan, 352 U. S. 380, 383 (1957)); see Sable, supra,
at 130, and n. 10. But, leaving that problem aside, the Solicitor
General's list of practical difficulties would seem to call, not for
"segregate and block" requirements, but, rather, for informational
requirements, for a simple coding system, for readily available
blocking equipment (perhaps accessible by telephone), for imposing
cost burdens upon system operators (who may spread them through
subscription fees); or perhaps even for a system that requires
lockbox defaults to be set to block certain channels (say, sex-
dedicated-channels). These kinds of requirements resemble those
that Congress has recently imposed upon all but leased channels.
For that reason, the "lockbox" description and the discussion of its
frailties reinforces our conclusion that the leased channel provision
is overly restrictive when measured against the benefits it is likely to
achieve. (We add that the record's discussion of the "lockbox" does
not explain why the law now treats leased channels more
restrictively than ordinary channels.)
There may, of course, be other explanations. Congress may simply
not have bothered to change the leased channel provisions when it
introduced a new system for other channels. But responses of this
sort, like guesses about the comparative seriousness of the problem,
are not legally adequate. In other cases, where, as here, the record
before Congress or before an agency provides no convincing
explanation, this Court has not been willing to stretch the limits of
the plausible, to create hypothetical nonobvious explanations in
order to justify laws that impose significant restrictions upon
speech. See, e.g., Sable, supra, at 130 ("[T]he congressional record
presented to us contains no evidence as to how effective or
ineffective the FCC's most recent regulations were or might prove to
be"); Simon & Schuster, 502 U. S., at 120; Minneapolis Star &
Tribune Co. v. Minnesota Comm'r of Revenue, 460 U. S. 575,
585-586 (1983); Arkansas Writers' Project, Inc. v. Ragland, 481
U. S. 221, 231-232 (1987).
Consequently, we cannot find that the "segregate and block"
restrictions on speech are a narrowly, or reasonably, tailored effort
to protect children. Rather, they are overly restrictive,
"sacrific[ing]" important First Amendment interests for too
"speculative a gain." Columbia Broadcasting, 412 U. S., at 127; see
League of Women Voters, 468 U. S., at 397. For that reason they
are not consistent with the First Amendment.
The statute's third provision, as implemented by FCC regulation, is
similar to its first provision, in that it too permits a cable operator to
prevent transmission of "patently offensive" programming, in this
case on public access channels. 1992 Act, Section 10(c); 47 CFR
Section 76.702 (1995). But there are four important differences.
The first is the historical background. As JUSTICE KENNEDY
points out, see post, at 9-12, cable operators have traditionally
agreed to reserve channel capacity for public, governmental, and
educational channels as part of the consideration they give
municipalities that award them cable franchises. See H. R. Rep.
No. 98-934, at 30. In the terms preferred by JUSTICE THOMAS,
see post, at 17-18, the requirement to reserve capacity for public
access channels is similar to the reservation of a public easement, or
a dedication of land for streets and parks, as part of a municipality's
approval of a subdivision of land. Cf. post, at 15-16 (KENNEDY,
J.). Significantly, these are channels over which cable operators
have not historically exercised editorial control. H. R. Rep. No. 98-
934, supra, at 30. Unlike Section 10(a) therefore, Section 10(c)
does not restore to cable operators editorial rights that they once had,
and the countervailing First Amendment interest is nonexistent, or at
least much diminished. See also post, at 13-15 (KENNEDY, J.).
The second difference is the institutional background that has
developed as a result of the historical difference. When a "leased
channel" is made available by the operator to a private lessee, the
lessee has total control of programming during the leased time slot.
See 47 U. S. C. Section 532(c)(2). Public access channels, on the
other hand, are normally subject to complex supervisory systems of
various sorts, often with both public and private elements. See
Section 531(b) (franchising authorities "may require rules and
procedures for the use of the [public access] channel capacity").
Municipalities generally provide in their cable franchising
agreements for an access channel manager, who is most commonly
a nonprofit organization, but may also be the municipality, or, in
some instances, the cable system owner. See D. Brenner, M. Price,
& M. Myerson, Cable Television and Other Nonbroadcast Video
Paragraph 6.04[7] (1993); P. Aufderheide, Public Access Cable
Programming, Controversial Speech, and Free Expression (1992)
(hereinafter Aufderheide), reprinted in App. 61, 63 (surveying 61
communities; the access manager was: a nonprofit organization in
41, a local government official in 12, the cable operator in 5, and an
unidentified entity in 3); D. Agosta, C. Rogoff, & A. Norman, The
Participate Report: A Case Study of Public Access Cable Television
in New York State 28 (1990), attached as Exh. K to Joint
Comments for the Alliance for Community Media et al., filed with
the FCC under MM Docket No. 92-258 (materials so filed
hereinafter FCC Record) ("In 88% [of New York public access
systems] access channels were programmed jointly between the
cable operator and another institution such as a university, library,
or non-profit access organization"); Agosta, at 28-32, FCC Record;
Comments of National Cable Television Association Inc., at 14,
FCC Record ("Operators often have no involvement in PEG
channels that are run by local access organizations"). Access
channel activity and management are partly financed with public
funds--through franchise fees or other payments pursuant to the
franchise agreement, or from general municipal funds, see Brenner,
Paragraph 6.04[3][c]; Aufderheide, App. 59-60--and are commonly
subject to supervision by a local supervisory board. See, e.g., D.
C. Code Ann. Section 43-1829 (1990 and Supp. 1996); Lynchburg
City Code Section 12.1-44(d)(2) (1988).
This system of public, private, and mixed nonprofit elements,
through its supervising boards and nonprofit or governmental access
managers, can set programming policy and approve or disapprove
particular programming services. And this system can police that
policy by, for example, requiring indemnification by programmers,
certification of compliance with local standards, time segregation,
adult content advisories, or even by prescreening individual
programs. See Second Report and Order, 8 FCC Rcd, Paragraph
26 ("[F]rom the comments received, it appears that a number of
access organizations already have in place procedures that require
certification statements [of compliance with local standards], or their
equivalent, from access programmers"); Comments of the Boston
Community Access and Programming Foundation, App. 163-164;
Aufderheide, App. 69-71; Comments of Metropolitan Area
Communications Commission, at 2, FCC Record; Reply Comments
of Waycross Community Television, at 4-6, FCC Record; Reply
Comments of Columbus Community Cable Access, Inc., App. 329;
Reply Comments of the City of St. Paul, App. 318, 325; Reply
Comments of Erik Mollberg, Public Access Coordinator, Ft.
Wayne, Ind., at 3, FCC Record; Comments of Defiance Community
Television, at 3, FCC Record; Comments of Nutmeg Public Access
Television, Inc., at 3-4, FCC Record. Whether these locally
accountable bodies prescreen programming, promulgate rules for the
use of public access channels, or are merely available to respond
when problems arise, the upshot is the same: there is a locally
accountable body capable of addressing the problem, should it arise,
of patently offensive programming broadcast to children, making it
unlikely that many children will in fact be exposed to programming
considered patently offensive in that community. See 56 F. 3d, at
127-128; Second Report and Order, supra, Paragraph 26.
Third, the existence of a system aimed at encouraging and securing
programming that the community considers valuable strongly
suggests that a "cable operator's veto" is less likely necessary to
achieve the statute's basic objective, protecting children, than a
similar veto in the context of leased channels. Of course, the system
of access managers and supervising boards can make mistakes,
which the operator might in some cases correct with its veto power.
Balanced against this potential benefit, however, is the risk that the
veto itself may be mistaken; and its use, or threatened use, could
prevent the presentation of programming, that, though borderline, is
not "patently offensive" to its targeted audience. See Aufderheide,
App. 64-66 (describing the programs that were considered
borderline by access managers, including sex education, health
education, broadcasts of politically marginal groups, and various
artistic experiments). And this latter threat must bulk large within a
system that already has publicly accountable systems for maintaining
responsible programs.
Finally, our examination of the legislative history and the record
before us is consistent with what common sense suggests, namely
that the public/nonprofit programming control systems now in place
would normally avoid, minimize, or eliminate any child-related
problems concerning "patently offensive" programming. We have
found anecdotal references to what seem isolated instances of
potentially indecent programming, some of which may well have
occurred on leased, not public access channels. See 138 Cong.
Rec. S642, S650 (Jan. 30, 1992) (statement of Sen. Wirth)
(mentioning "abuses" on Time Warner's New York City channel);
but see Comments of Manhattan Neighborhood Network, App.
235, 238 (New York access manager noting that leased, not public
access channels, regularly carry sexually explicit programming in
New York, and that no commercial programs or advertising are
allowed on public access channels); Brief for Time Warner Cable as
Amicus Curiae 2-3 (indicating that relevant "abuses" likely occurred
on leased channels). See also 138 Cong. Rec., at S649 (Jan. 30,
1992) (statement of Sen. Fowler) (describing solicitation of
prostitution); id., at S646 (statement of Sen. Helms) (identifying
newspaper headline referring to mayor's protest of a "strip act"); 56
F. 3d, at 117-118 (recounting comments submitted to the FCC
describing three complaints of offensive programming); Letter from
Mayor of Rancho Palos Verdes, FCC Record; Resolution of San
Antonio City Council, No. 92-49-40, FCC Record.
But these few examples do not necessarily indicate a significant
nationwide pattern. See 56 F. 3d, at 127-128 (public access
channels "did not pose dangers on the order of magnitude of those
identified on leased access channels," and "local franchising
authorities could respond" to such problems "by issuing `rules and
procedures' or other `requirements'"). The Commission itself did
not report any examples of "indecent" programs on public access
channels. See Second Report and Order, 8 FCC Rcd 2638 (1993);
see also Comments of Boston Community Access and Programming
Foundation, App. 162-163 (noting that the FCC's Notice of
Proposed Rulemaking, 7 FCC Rcd 7709 (1992) did not identify any
"inappropriate" programming that actually exists on public access
channels). Moreover, comments submitted to the FCC undermine
any suggestion that prior to 1992 there were significant problems of
indecent programming on public access channels. See Agosta, at
10, 28, FCC Record (surveying 76 public access systems in New
York over two years, and finding "only two examples of
controversial programming, and both had been settled by the
producers and the access channel"); Reply Comments of Staten
Island Community Television, at 2, FCC Record ("Our access
channels have been on the air since 1986 without a single incident
which would be covered by Section 10 of the new law"); Reply
Comments of Waycross Community Television, at 2, FCC Record
("[I]ndecent and obscene programs . . . [have] never been cablecast
through Waycross Community Television during our entire ten year
programming history"); Reply Comments of Cambridge Community
Television, App. 314 ("In Cambridge less than one hour out of
15,000 hours of programming CCTV has run in the past five year[s]
may have been affected by the Act"); ibid. ("CCTV feels that there
simply is not a problem which needs to be fixed"); Reply Comments
of Columbus Community Cable Access, Inc., App. 329 ("ACTV is
unaware of any actions taken by the cable operators under [a local
law authorizing them to prohibit "legally obscene matter"] within the
last 10 years"); Reply Comments of Cincinnati Community Video,
Inc., App., at 316 ("[I]n 10 years of access operations with over
30,000 access programs cablecast not a single obscenity violation
has ever occurred"); Comments of Defiance Community Television,
at 2-3, FCC Record (in eight years of operation, "there has never
been a serious problem with the content of programming on the
channel").
At most, we have found borderline examples as to which people's
judgment may differ, perhaps acceptable in some communities but
not others, of the type that petitioners fear the law might prohibit.
See, e.g., Aufderheide, App. 64-66; Brief for Petitioners in No. 95-
124, p. 7 (describing depiction of a self-help gynecological
examination); Comments of Time Warner Entertainment Co., App.
252 (describing an Austin, Tex., program from that included "nude
scenes from a movie," and an Indianapolis, Ind., "safe sex"
program). It is difficult to see how such borderline examples could
show a compelling need, nationally, to protect children from
significantly harmful materials. Compare 138 Cong. Rec., at S646
(Jan. 30, 1992) (statement of Sen. Helms) (justifying regulation of
leased access channels in terms of programming that depicts
"bestiality" and "rape"). In the absence of a factual basis
substantiating the harm and the efficacy of its proposed cure, we
cannot assume that the harm exists or that the regulation redresses it.
See Turner, 512 U. S. ___, ___ (slip op. at 40-41).
The upshot, in respect to the public access channels, is a law that
could radically change present programming-related relationships
among local community and nonprofit supervising boards and
access managers, which relationships are established through
municipal law, regulation, and contract. In doing so, it would not
significantly restore editorial rights of cable operators, but would
greatly increase the risk that certain categories of programming (say,
borderline offensive programs) will not appear. At the same time,
given present supervisory mechanisms, the need for this particular
provision, aimed directly at public access channels, is not obvious.
Having carefully reviewed the legislative history of the Act, the
proceedings before the FCC, the record below, and the submissions
of the parties and amici here, we conclude that the Government
cannot sustain its burden of showing that Section 10(c) is necessary
to protect children or that it is appropriately tailored to secure that
end. See, e.g., Columbia Broadcasting, 412 U. S., at 127; League
of Women Voters, 468 U. S., at 398-399; Sable, 492 U. S., at 126.
Consequently, we find that this third provision violates the First
Amendment.
Finally, we must ask whether Section 10(a) is severable from the
two other provisions. The question is one of legislative intent:
Would Congress still "have passed" Section 10(a) "had it known"
that the remaining "provision[s were] invalid"? Brockett v. Spokane
Arcades, Inc., 472 U. S. 491, 506 (1985). If so, we need not
invalidate all three provisions. New York v. Ferber, 458 U. S., at
769, n. 24 (citing United States v. Thirty-seven Photographs, 402
U. S. 363 (1971)).
Although the 1992 Act contains no express "severability clause," we
can find the Act's "severability" intention in its structure and
purpose. It seems fairly obvious Congress would have intended its
permissive "leased access" channels provision, Section 10(a), to
stand irrespective of Section 10(c)'s legal fate. That is because the
latter provision concerns only public, educational, and governmental
channels. Its presence had little, if any, effect upon "leased access"
channels; hence its absence in respect to those channels could not
make a significant difference.
The "segregate and block" requirement's invalidity does make a
difference, however, to the effectiveness of the permissive "leased
access" provision, Section 10(a). Together they told the cable
system operator: "either ban a `patently offensive' program or
`segregate and block' it." Without the "segregate and block"
provision, cable operators are afforded broad discretion over what to
do with a patently offensive program, and because they will no
longer bear the costs of segregation and blocking if they refuse to
ban such programs, cable operators may choose to ban fewer
programs.
Nonetheless, this difference does not make the two provisions
unseverable. Without the "segregate and block" provision, the law
simply treats leased channels (in respect to patently offensive
programming) just as it treats all other channels. And judging by the
absence of similar segregate-and-block provisions in the context of
these other channels, Congress would probably have thought that
Section 10(a), standing alone, was an effective (though, perhaps,
not the most effective) means of pursuing its objective. Moreover,
we can find no reason why, in light of Congress' basic objective
(the protection of children), Congress would have preferred no
provisions at all to the permissive provision standing by itself. That
provision, capable of functioning on its own, still helps to achieve
that basic objective. Consequently, we believe the valid provision is
severable from the others.
For these reasons, the judgment of the Court of Appeals is affirmed
insofar as it upheld Section 10(a); the judgment of the Court of
Appeals is reversed insofar as it upheld Section 10(b) and Section
10(c).
It is so ordered.
SUPREME COURT OF THE UNITED STATES
Nos. 95-124 AND 95-227
DENVER AREA EDUCATIONAL TELECOMMUNICATIONS
CONSORTIUM, INC., ET AL., PETITIONERS 95-124
v.
FEDERAL COMMUNICATIONS COMMISSION ET AL.
ALLIANCE FOR COMMUNITY MEDIA, ET AL.,
PETITIONERS 95-227
v.
FEDERAL COMMUNICATIONS COMMISSION ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA
CIRCUIT
[June 28, 1996]
JUSTICE STEVENS, concurring.
The difference between Section 10(a) and Section 10(c) is the
difference between a permit and a prohibition. The former restores
the freedom of cable operators to reject indecent programs; the latter
requires local franchising authorities to reject such programs. While
I join the Court's opinion, I add these comments to emphasize the
difference between the two provisions and to endorse the analysis in
Part III-B of JUSTICE KENNEDY's opinion even though I do not
think it necessary to characterize the public access channels as public
fora. Like JUSTICE SOUTER, I am convinced that it would be
unwise to take a categorical approach to the resolution of novel First
Amendment questions arising in an industry as dynamic as this. Cf.
R. A. V. v. St. Paul, 505 U. S. 377, 426-427 (1992) (STEVENS,
J., concurring in judgment).
Federal law requires cable system operators to reserve about 15
percent of their channels for commercial lease to unaffiliated
programmers. See 47 U. S.C. Section 532(b). On these channels,
federal law generally prohibits the cable operator from exercising
any control over program content, see 47 U. S. C. 532(c)(2), with
one exception: Section 10(a) allows the operator to refuse to air
"indecent" programs. In my view, that exception is permissible.
The Federal Government established the leased access requirements
to ensure that certain programmers would have more channels
available to them. Section 10(a) is therefore 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.
I do not agree, however, that Section 10(a) established a public
forum. Unlike sidewalks and parks, the Federal Government
created leased access channels in the course of its legitimate
regulation of the communications industry. In so doing, it did not
establish an entirely open forum, but rather restricted access to
certain speakers, namely unaffiliated programmers able to lease the
air time. By facilitating certain speech that cable operators would
not otherwise carry, the leased access channels operate like the
must-carry rules that we considered in Turner Broadcasting
System,. Inc. v. FCC, 512 U. S. __, __ (1994) (slip op., at 19-
21), without reference to our public forum precedents.
When the Federal Government opens cable channels that would
otherwise be left entirely in private hands, it deserves more
deference than a rigid application of the public forum doctrine would
allow. At this early stage in the regulation of this developing
industry, Congress should not be put to an all or nothing-at-all
choice in deciding whether to open certain cable channels to
programmers who would otherwise lack the resources to participate
in the marketplace of ideas.
Just as Congress may legitimately limit access to these channels to
unaffiliated programmers, I believe it may also limit, within certain
reasonable bounds, the extent of the access that it confers upon
those programmers.1 If the Government had a reasonable basis for
concluding that there were already enough classical musical
programs or cartoons being telecast--or, perhaps, even enough
political debate--I would find no First Amendment objection to an
open access requirement that was extended on an impartial basis to
all but those particular subjects. A contrary conclusion would ill-
serve First Amendment values by dissuading the Government from
creating access rights altogether.2
Of course, the fact that the Federal Government may be entitled to
some deference in regulating access for cable programmers does not
mean that it may evade First Amendment constraints by selectively
choosing which speech should be excepted from private control. If
the Government spared all speech but that communicated by
Republicans from the control of the cable operator, for example, the
First Amendment violation would be plain. See Cornelius v.
NAACP Legal Defense and Educational Fund, Inc., 473 U. S. 788,
806 (1985). More subtle viewpoint-based limitations on access also
may be prohibited by the First Amendment. See Southeastern
Promotions, Ltd. v. Conrad, 420 U. S. 546, 564 (1975) (Douglas,
J., dissenting in part and concurring in result in part).
Even though it is often difficult to determine whether a given access
restriction impermissibly singles out certain ideas for repression, in
this case I find no basis for concluding that Section 10(a) is a
species of viewpoint discrimination. By returning control over
indecent programming to the cable operator, Section 10(a) treats
indecent programming on access channels no differently from
indecent programming on regular channels. The decision to permit
the operator to determine whether to show indecent programming on
access channels therefore cannot be said to reflect a Governmental
bias against the indecent programming that appears on access
channels in particular.
Nor can it be argued that indecent programming has no outlet other
than leased access channels, and thus that the exclusion of such
speech from special protection is designed to prohibit its
communication altogether. Petitioners impliedly concede this point
when they contend that the indecency restrictions are arbitrarily
underinclusive because they do not affect the similarly indecent
programming that appears on regular channels. Moreover, the
criteria Section 10(a) identifies for limiting access are fully
consistent with the Government's contention that the speech
restrictions are not designed to suppress "a certain form of
expression that the Government dislikes," ante, at 24 (KENNEDY,
J., concurring in part and dissenting in part), but rather to protect
children from sexually explicit programming on a pervasive
medium. In other cases, we have concluded that such a justification
is both viewpoint-neutral and legitimate. Sable Communications of
Cal., Inc. v. FCC, 492 U. S. 115 (1989); FCC v. Pacifica
Foundation, 438 U. S. 726 (1978). There is no reason to conclude
otherwise here.
Finally, Section 10(a) cannot be assailed on the somewhat broader
ground that it nevertheless reduces the programming available to the
adult population to what is suitable for children. Butler v.
Michigan, 352 U. S. 380, 383 (1957); ante, at 29 (KENNEDY, J.,
concurring in part and dissenting in part). Section 10(a) serves only
to ensure that the newly created access right will not require
operators to expose children to more unsuitable communications
than would otherwise be the case. It is thus far different in both
purpose and effect from the provision at issue in Butler, which
criminalized the sale of certain books. Butler v. Michigan, 352 U.
S., at 381.
In sum, Section 10(a) 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.
As both JUSTICE BREYER and JUSTICE KENNEDY have
explained, the public, educational and governmental access channels
that are regulated by Section 10(c) are not creations of the Federal
Government. They owe their existence to contracts forged between
cable operators and local cable franchising authorities. Ante, at 3,
30-32 (opinion of BREYER, J.); ante, at 9, 11, 13-15 (KENNEDY,
J., concurring in part and dissenting in part). As their name reflects,
so-called PEG channels are subject to a variety of local
governmental controls and regulations that--apart from any federal
requirement--may result either in a prohibition or a requirement that
certain types of programs be carried. Ante, at 31-33 (opinion of
BREYER, J.). Presumably, as JUSTICE BREYER explains, the
local authorities seldom permit programming of the type described
by Section 10(c) to air. Ante, at 32-33.
What is of critical importance to me, however, is that if left to their
own devices, those authorities may choose to carry some
programming that the Federal Government has decided to restrict.
As I read Section 10(c), the federal statute would disable local
governments from making that choice. It would inject federally
authorized private censors into forums from which they might
otherwise be excluded, and it would therefore limit local forums that
might otherwise be open to all constitutionally protected speech.3
Section 10(c) operates as a direct restriction on speech that, in the
absence of federal intervention, might flow freely. The Federal
Government is therefore not entitled to the same leeway that I
believe it deserves when it enacts provisions such as Section 10(a),
which define the limits of federally created access rights. See supra,
at 2-3. The Federal Government has no more entitlement to restrict
the power of a local authority to disseminate materials on channels
of its own creation, then it has to restrict the power of cable
operators to do so on channels that they own. In this respect, I
agree entirely with JUSTICE KENNEDY, save for his designation
of these channels as public fora.
That is not to say that the Federal Government may not impose
restrictions on the dissemination of indecent materials on cable
television. Although indecent speech is protected by the First
Amendment, the Government may have a compelling interest in
protecting children from indecent speech on such a pervasive
medium. Sable Communications of Cal., Inc. v. FCC, 492 U. S.
115 (1989); FCC v. Pacifica Foundation, 438 U. S. 726 (1978).
When the Government acts to suppress directly the dissemination of
such speech, however, it may not rely solely on speculation and
conjecture. See Sable Communications of Cal., Inc. v. FCC, 492
U. S., at 129-131.
JUSTICE BREYER persuasively demonstrates that the Government
has made no effort to identify the harm caused by permitting local
franchising authorities to determine the quantum of so-called
"indecent" speech that may be aired in their communities. Ante, at
33-37. Nor has the Government attempted to determine whether the
intervention of the discretionary censorial authority of a private cable
operator constitutes an appropriately limited means of addressing
that harm. Ibid. Given the direct nature of the restriction on speech
that Section 10(c) imposes, the Government has failed to carry its
burden of justification. Accordingly, I agree that the judgment of the
Court of Appeals with respect to Section 10(c) should be reversed.
SUPREME COURT OF THE UNITED STATES
Nos. 95-124 AND 95-227
DENVER AREA EDUCATIONAL TELECOMMUNICATIONS
CONSORTIUM, INC., ET AL., PETITIONERS 95-124
v.
FEDERAL COMMUNICATIONS COMMISSION ET AL.
ALLIANCE FOR COMMUNITY MEDIA, ET AL.,
PETITIONERS 95-227
v.
FEDERAL COMMUNICATIONS COMMISSION ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA
CIRCUIT
[June 28, 1996]
JUSTICE SOUTER, concurring.
JUSTICE KENNEDY's separate opinion stresses the worthy point
that First Amendment values generally are well-served by
categorizing speech protection according to the respective characters
of the expression, its context, and the restriction at issue.
Reviewing speech regulations under fairly strict categorical rules
keeps the starch in the standards for those moments when the daily
politics cries loudest for limiting what may be said.1 JUSTICE
KENNEDY sees no warrant in this case for anything but a
categorical and rule-based approach applying a fixed level of
scrutiny, the strictest, to judge the content-based provisions of
Sections 10(a), (b), and (c), and he accordingly faults the plurality
opinion for declining to decide the precise doctrinal categories that
should govern the issue at hand. The value of the categorical
approach generally to First Amendment security prompts a word to
explain why I join the Court's unwillingness to announce a
definitive categorical analysis in this case.
Neither the speech nor the limitation at issue here may be categorized
simply by content. Our prior case most nearly on point dealt not
with a flat restriction covering a separate category of indecency at the
First Amendment's periphery, but with less than a total ban, directed
to instances of indecent speech easily available to children through
broadcasts readily received in the household and difficult or
impossible to control without immediate supervision. See FCC v.
Pacifica Foundation, 438 U. S. 726, 747 (1978) (plurality opinion)
("It is a characteristic of speech such as this that both its capacity to
offend and its `social value' . . . vary with the circumstances").2 It
is not surprising that so contextually complex a category was not
expressly assigned a standard level of scrutiny for reviewing the
Government's limitation at issue there.3
Nor does the fact that we deal in this case with cable transmission
necessarily suggest that a simple category subject to a standard level
of scrutiny ought to be recognized at this point; while we have found
cable television different from broadcast with respect to the factors
justifying intrusive access requirements under the rule in Red Lion,
see Turner Broadcasting System, Inc. v. FCC, 512 U. S. ___, ___
(1994) (slip op., at 12-13) (finding that Red Lion's spectrum
scarcity rationale had no application to cable), today's plurality
opinion rightly observes that the characteristics of broadcast radio
that rendered indecency particularly threatening in Pacifica, that is,
its intrusion into the house and accessibility to children, are also
present in the case of cable television, ante, at 14. It would seem,
then, that the appropriate category for cable indecency should be as
contextually detailed as the Pacifica example, and settling upon a
definitive level-of-scrutiny rule of review for so complex a category
would require a subtle judgment; but there is even more to be
considered, enough more to demand a subtlety tantamount to
prescience.
All of the relevant characteristics of cable are presently in a state of
technological and regulatory flux. Recent and far-reaching
legislation not only affects the technical feasibility of parental control
over children's access to undesirable material, see, e.g.,
Telecommunications Act of 1996, Section 551, Pub. L. 104-104,
110 Stat. 139-142 (Feb. 8, 1996) (provision for "V-chip" to block
sexually explicit or violent programs), but portends fundamental
changes in the competitive structure of the industry and, therefore,
the ability of individual entities to act as bottlenecks to the free flow
of information, see id., Title III, 110 Stat. 114-128 (promoting
competition in cable services). As cable and telephone companies
begin their competition for control over the single wire that will
carry both their services, we can hardly settle rules for review of
regulation on the assumption that cable will remain a separable and
useful category of First Amendment scrutiny. And as broadcast,
cable, and the cyber-technology of the Internet and the World Wide
Web approach the day of using a common receiver, we can hardly
assume that standards for judging the regulation of one of them will
not have immense, but now unknown and unknowable, effects on
the others.4
Accordingly, in charting a course that will permit reasonable
regulation in light of the values in competition, we have to accept the
likelihood that the media of communication will become less
categorical and more protean. Because we cannot be confident that
for purposes of judging speech restrictions it will continue to make
sense to distinguish cable from other technologies, and because we
know that changes in these regulated technologies will enormously
alter the structure of regulation itself, we should be shy about saying
the final word today about what will be accepted as reasonable
tomorrow. In my own ignorance I have to accept the real possibility
that "if we had to decide today . . . just what the First Amendment
should mean in cyberspace, . . . we would get it fundamentally
wrong." Lessig, The Path of Cyberlaw, 104 Yale L. J. 1743, 1745
(1995).
The upshot of appreciating the fluidity of the subject that Congress
must regulate is simply to accept the fact that not every nuance of
our old standards will necessarily do for the new technology, and
that a proper choice among existing doctrinal categories is not
obvious. Rather than definitively settling the issue now, JUSTICE
BREYER wisely reasons by direct analogy rather than by rule,
concluding that the speech and the restriction at issue in this case
may usefully be measured against the ones at issue in Pacifica.5 If
that means it will take some time before reaching a final method of
review for cases like this one, there may be consolation in recalling
that 16 years passed, from Roth v. United States, 354 U. S. 476
(1957), to Miller v. California, 413 U. S. 15 (1973), before the
modern obscenity rule jelled; that it took over 40 years, from Hague
v. CIO, 307 U. S. 496 (1939), to Perry Ed. Assn. v. Perry Local
Educators' Assn., 460 U. S. 37 (1983), for the public forum
category to settle out; and that a round half-century passed before the
clear and present danger of Schenck v. United States, 249 U. S. 47
(1919), evolved into the modern incitement rule of Brandenburg v.
Ohio, 395 U. S. 444 (1969).
I cannot guess how much time will go by until the technologies of
communication before us today have matured and their relationships
become known. But until a category of indecency can be defined
both with reference to the new technology and with a prospect of
durability, the job of the courts will be just what JUSTICE
BREYER does today: recognizing established First Amendment
interests through a close analysis that constrains the Congress,
without wholly incapacitating it in all matters of the significance
apparent here, maintaining the high value of open communication,
measuring the costs of regulation by exact attention to fact, and
compiling a pedigree of experience with the changing subject.
These are familiar judicial responsibilities in times when we know
too little to risk the finality of precision, and attention to them will
probably take us through the communications revolution. Maybe the
judicial obligation to shoulder these responsibilities can itself be
captured by a much older rule, familiar to every doctor of medicine:
"First, do no harm."
SUPREME COURT OF THE UNITED STATES
Nos. 95-124 AND 95-227
DENVER AREA EDUCATIONAL TELECOMMUNICATIONS
CONSORTIUM, INC., ET AL., PETITIONERS 95-124
v.
FEDERAL COMMUNICATIONS COMMISSION ET AL.
ALLIANCE FOR COMMUNITY MEDIA, ET AL.,
PETITIONERS 95-227
v.
FEDERAL COMMUNICATIONS COMMISSION ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA
CIRCUIT
[June 28, 1996]
JUSTICE O'CONNOR, concurring in part and dissenting in part.
I agree that Section 10(a) is constitutional and that Section 10(b) is
unconstitutional, and I join Parts I, II, III, and V, and the judgment
in part. I am not persuaded, however, that the asserted "important
differences" between Sections 10(a) and 10(c), ante, at 30, are
sufficient to justify striking down Section 10(c). I find the features
shared by Section 10(a), which covers leased access channels, and
Section 10(c), which covers public access channels, to be more
significant than the differences. For that reason, I would find that
Section 10(c) too withstands constitutional scrutiny.
Both Sections 10(a) and 10(c) serve an important governmental
interest: the well-established compelling interest of protecting
children from exposure to indecent material. See Sable
Communications of Cal. Inc. v. FCC, 492 U. S. 115, 126 (1989);
Ginsberg v. New York, 390 U. S. 629, 639-640 (1968). Cable
television, like broadcast television, is a medium that is uniquely
accessible to children, see ante, at 13-14, and of course, children
have equally easy access to public access channels as to leased
access channels. By permitting a cable operator to prevent
transmission of patently offensive sex-related programming,
Sections 10(a) and 10(c) further the interest of protecting children.
Furthermore, both provisions are permissive. Neither presents an
outright ban on a category of speech, such as we struck down in
Sable Communications of Cal. Inc. v. FCC, supra. Sections 10(a)
and 10(c) leave to the cable operator the decision whether or not to
broadcast indecent programming, and, therefore, are less restrictive
than an absolute governmental ban. Certainly Section 10(c) is not
more restrictive than Section 10(a) in this regard.
It is also significant that neither Section 10(a) nor Section 10(c) is
more restrictive than the governmental speech restriction we upheld
in FCC v. Pacifica Foundation, 438 U. S. 726 (1978). I agree with
JUSTICE BREYER that we should not yet undertake fully to adapt
our First Amendment doctrine to the new context we confront here.
Because we refrain from doing so, the precedent established by
Pacifica offers an important guide. Section 10(c), no less than
Section 10(a), is within the range of acceptability set by Pacifica.
See ante, at 13-16.
The distinctions upon which the Court relies in deciding that Section
10(c) must fall while Section 10(a) survives are not, in my view,
constitutionally significant. Much emphasis is placed on the
differences in the origins of leased access and public access
channels. To be sure, the leased access channels covered by Section
10(a) were a product of the Federal Government, while the public
access channels at issue in Section 10(c) arose as part of the cable
franchises awarded by municipalities, see ante at 30-31, but I am not
persuaded that the difference in the origin of the access channels is
sufficient to justify upholding Section 10(a) and striking down
Section 10(c). The interest in protecting children remains the same,
whether on a leased access channel or a public access channel, and
allowing the cable operator the option of prohibiting the
transmission of indecent speech seems a constitutionally permissible
means of addressing that interest. Nor is the fact that public access
programming may be subject to supervisory systems in addition to
the cable operator, see ante, at 31-33, sufficient in my mind to
render Section 10(c) so ill-tailored to its goal as to be
unconstitutional. Given the compelling interest served by
Section 10(c), its permissive nature, and fit within our precedent, I
would hold Section 10(c), like Section 10(a), constitutional.
SUPREME COURT OF THE UNITED STATES
Nos. 95-124 AND 95-227
DENVER AREA EDUCATIONAL TELECOMMUNICATIONS
CONSORTIUM, INC., ET AL., PETITIONERS 95-124
v.
FEDERAL COMMUNICATIONS COMMISSION ET AL.
ALLIANCE FOR COMMUNITY MEDIA, ET AL.,
PETITIONERS 95-227
v.
FEDERAL COMMUNICATIONS COMMISSION ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES
COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA
CIRCUIT
[June 28, 1996]
JUSTICE KENNEDY, with whom JUSTICE GINSBURG joins,
concurring in part, concurring in the judgment in part, and
dissenting in part.
The plurality opinion, insofar as it upholds Section 10(a) of the
1992 Cable Act, is adrift. The opinion treats concepts such as
public forum, broadcaster, and common carrier as mere labels rather
than as categories with settled legal significance; it applies no
standard, and by this omission loses sight of existing First
Amendment doctrine. When confronted with a threat to free speech
in the context of an emerging technology, we ought to have the
discipline to analyze the case by reference to existing elaborations of
constant First Amendment principles. This is the essence of the
case-by-case approach to ensuring protection of speech under the
First Amendment, even in novel settings. Rather than undertake this
task, however, the plurality just declares that, all things considered,
Section 10(a) seems fine. I think the implications of our past cases
for this one are clearer than the plurality suggests, and they require
us to hold Section 10(a) invalid. Though I join Part III of the
opinion (there for the Court) striking down Section 10(b) of the Act,
and concur in the judgment that Section 10(c) is unconstitutional,
with respect I dissent from the remainder.
Two provisions of the 1992 Act, Sections 10(a) and (c), authorize
the operator of a cable system to exclude certain programming from
two different kinds of channels. Section 10(a) concerns leased
access channels. These are channels the cable operator is required
by federal law to make available to unaffiliated programmers without
exercising any control over program content. The statute allows a
cable operator to enforce a written and published policy of
prohibiting on these channels any programming it "reasonably
believes describes or depicts sexual or excretory activities or organs
in a patently offensive manner as measured by contemporary
community standards," speech we can refer to as "indecent
programming."
Section 10(c) involves public, educational, and governmental access
channels (or PEG access channels, as they are known). These are
channels set aside for use by members of the public, governmental
authorities, and local school systems. As interpreted by the Federal
Communications Commission (FCC), Section 10(c) requires the
agency to make regulations enabling cable operators to prohibit
indecent programming on PEG access channels. See ante, at 3-5
(quoting statutory provisions in full and discussing interpretive
regulations).*
Though the two provisions differ in significant respects, they have
common flaws. In both instances, Congress singles out one sort of
speech for vulnerability to private censorship in a context where
content-based discrimination is not otherwise permitted. The
plurality at least recognizes this as state action, ante, at 6, avoiding
the mistake made by the Court of Appeals, Alliance for Community
Media v. FCC, 56 F. 3d 105, 112-121 (1995). State action lies in
the enactment of a statute altering legal relations between persons,
including the selective withdrawal from one group of legal
protections against private acts, regardless of whether the private
acts are attributable to the State. Cf. Hunter v. Erickson, 393 U. S.
385, 389-390 (1969) (state action under the Fourteenth
Amendment).
The plurality balks at taking the next step, however, which is to
advise us what standard it applies to determine whether the state
action conforms to the First Amendment. Sections 10(a) and (c)
disadvantage nonobscene, indecent programming, a protected
category of expression, Sable Communications of Cal., Inc. v.
FCC, 492 U. S. 115, 126 (1989), on the basis of its content. The
Constitution in general does not tolerate content-based restriction of
or discrimination against speech. R. A. V. v. St. Paul, 505 U. S.
377, 382 (1992) ("Content-based regulations are presumptively
invalid"); Carey v. Brown, 447 U. S. 455, 461-463 (1980); Police
Dept. of Chicago v. Mosley, 408 U. S. 92, 96 (1972). In the realm
of speech and expression, the First Amendment envisions the citizen
shaping the government, not the reverse; it removes "governmental
restraints from the arena of public discussion, putting the decision as
to what views shall be voiced largely into the hands of each of us, in
the hope that use of such freedom will ultimately produce a more
capable citizenry and more perfect polity." Cohen v. California, 403
U. S. 15, 24 (1971). "[E]ach person should decide for him or
herself the ideas and beliefs deserving of expression, consideration,
and adherence. Our political system and cultural life rest upon this
ideal." Turner Broadcasting System, Inc. v. FCC, 512 U. S. ___,
___ (1994) (slip op., at 16). We therefore have given "the most
exacting scrutiny to regulations that suppress, disadvantage, or
impose differential burdens upon speech because of its content."
Id., at ___ (slip op., at 17).
Sections 10(a) and (c) are unusual. They do not require direct action
against speech, but do authorize a cable operator to deny the use of
its property to certain forms of speech. As a general matter, a
private person may exclude certain speakers from his or her property
without violating the First Amendment, Hudgens v. NLRB, 424 U.
S. 507 (1976), and if Sections 10(a) and (c) were no more than
affirmations of this principle they might be unremarkable. Access
channels, however, are property of the cable operator dedicated or
otherwise reserved for programming of other speakers or the
government. A public access channel is a public forum, and laws
requiring leased access channels create common carrier obligations.
When the government identifies certain speech on the basis of its
content as vulnerable to exclusion from a common carrier or public
forum, strict scrutiny applies. These laws cannot survive this
exacting review. However compelling Congress' interest in
shielding children from indecent programming, the provisions in
this case are not drawn with enough care to withstand scrutiny under
our precedents.
Before engaging the complexities of cable access channels and
explaining my reasons for thinking all of Section 10
unconstitutional, I start with the most disturbing aspect of the
plurality opinion: its evasion of any clear legal standard in deciding
this case. See ante, at 11 (disavowing need to "declare which,
among the many applications of the general approach that this Court
has developed over the years, we are applying here").
The plurality begins its flight from standards with a number of
assertions nobody disputes. I agree, of course, that it would be
unwise "to declare a rigid single standard, good for now and for all
future media and purposes," ante, at 11. I do think it necessary,
however, to decide what standard applies to discrimination against
indecent programming on cable access channels in the present state
of the industry. We owe at least that much to public and leased
access programmers whose speech is put at risk nationwide by these
laws.
In a similar vein, we are admonished this case is complicated, not
simple; the importance of contextual review, we are told, cannot be
evaded by recourse to simple analogies. Ante, at 9-13, 18. All this
is true, but use of a standard does not foreclose consideration of
context. Indeed, if strict scrutiny is an instance of "judicial formulae
so rigid that they become a straitjacket that disables Government
from responding to serious problems," ante, at 11, this is a grave
indictment of our First Amendment jurisprudence, which relies on
strict scrutiny in a number of settings where context is important. I
have expressed misgivings about judicial balancing under the First
Amendment, see Burson v. Freeman, 504 U. S. 191, 211-212
(1992) (concurring opinion); Simon & Schuster, Inc. v. Members
of N. Y. State Crime Victims Bd., 502 U. S. 105, 124-125 (1991)
(opinion concurring in judgment), but strict scrutiny at least confines
the balancing process in a manner protective of speech; it does not
disable government from addressing serious problems, but does
ensure that the solutions do not sacrifice speech to a greater extent
than necessary.
The plurality claims its resistance to standards is in keeping with our
case law, where we have shown a willingness to be flexible in
confronting novel First Amendment problems. The cases it cites,
ante, at 10-11, however, demonstrate the opposite of what the
plurality supposes: in each, we developed specialized or more or
less stringent standards when certain contexts demanded them; we
did not avoid the use of standards altogether. Indeed, the creation of
standards and adherence to them, even when it means affording
protection to speech unpopular or distasteful, is the central
achievement of our First Amendment jurisprudence. Standards are
the means by which we state in advance how to test a law's validity,
rather than letting the height of the bar be determined by the apparent
exigencies of the day. They also provide notice and fair warning to
those who must predict how the courts will respond to attempts to
suppress their speech. Yet formulations like strict scrutiny, used in
a number of constitutional settings to ensure that the inequities of the
moment are subordinated to commitments made for the long run, see
Simon & Schuster, supra, at 115-116; Perry Ed. Assn. v. Perry
Local Educators' Assn., 460 U. S. 37, 45 (1983), mean little if they
can be watered down whenever they seem too strong. They mean
still less if they can be ignored altogether when considering a case
not on all fours with what we have seen before.
The plurality seems distracted by the many changes in technology
and competition in the cable industry. See ante, at 11-12; ante, at 3-
4 (SOUTER, J., concurring). The laws challenged here, however,
do not retool the structure of the cable industry or (with the
exception of Section 10(b)) involve intricate technologies. The
straightforward issue here is whether the Government can deprive
certain speakers, on the basis of the content of their speech, of
protections afforded all others. There is no reason to discard our
existing First Amendment jurisprudence in answering this question.
While it protests against standards, the plurality does seem to favor
one formulation of the question in this case: namely, whether the Act
"properly addresses an extremely important problem, without
imposing, in light of the relevant interests, an unnecessarily great
restriction on speech." Ante, at 12. (Though the plurality frowns
on any effort to settle on a form of words, it likes this formulation
well enough to repeat it; see ante, at 11). This description of the
question accomplishes little, save to clutter our First Amendment
case law by adding an untested rule with an uncertain relationship to
the others we use to evaluate laws restricting speech. The plurality
cannot bring itself to apply strict scrutiny, yet realizes it cannot
decide the case without uttering some sort of standard; so it has
settled for synonyms. "[C]lose judicial scrutiny," ante, at 11, 12, is
substituted for strict scrutiny, and "extremely important problem,"
ante, at 12, or "extraordinary proble[m]," ante, at 11, is substituted
for "compelling interest." The admonition that the restriction not be
unnecessarily great in light of the interest it serves, ante, at 12, is
substituted for the usual narrow tailoring requirements. All we
know about the substitutes is that they are inferior to their
antecedents. We are told the Act must be "appropriately tailored,"
ante, at 11, "sufficiently tailored," ante, at 12, or "carefully and
appropriately addressed," ante, at 18, to the problems at hand--
anything, evidently, except narrowly tailored.
These restatements have unfortunate consequences. The first is to
make principles intended to protect speech easy to manipulate. The
words end up being a legalistic cover for an ad hoc balancing of
interests; in this respect the plurality succeeds after all in avoiding
the use of a standard. Second, the plurality's exercise in pushing
around synonyms for the words of our usual standards will sow
confusion in the courts bound by our precedents. Those courts, and
lawyers in the communications field, now will have to discern what
difference there is between the formulation the plurality applies
today and our usual strict scrutiny. I can offer little guidance, except
to note the unprotective outcome the plurality reaches here. This is
why comparisons and analogies to other areas of our First
Amendment case law become a responsibility, rather than the luxury
the plurality considers them to be. The comparisons provide
discipline to the Court and guidance for others, and give clear
content to our standards--all the things I find missing in the
plurality's opinion. The novelty and complexity of the case is a
reason to look for help from other areas of our First Amendment
jurisprudence, not a license to wander into uncharted areas of the
law with no compass other than our own opinions about good
policy.
Another troubling aspect of the plurality's approach is its suggestion
that Congress has more leeway than usual to enact restrictions on
speech where emerging technologies are concerned, because we are
unsure what standard should be used to assess them. JUSTICE
SOUTER recommends to the Court the precept "`First, do no
harm,'" ante, at 6. The question, though, is whether the harm is in
sustaining the law or striking it down. If the plurality is concerned
about technology's direction, it ought to begin by allowing speech,
not suppressing it. We have before us an urgent claim for relief
against content-based discrimination, not a dry run.
I turn now to the issues presented, and explain why strict scrutiny is
warranted.
Cable operators deliver programming from four sources:
retransmission of broadcast stations; programming purchased from
professional vendors (including national services like ESPN and
Nickelodeon) and delivered by satellite; programs created by the
cable operator itself; and access channels (PEG and leased), the two
kinds of programming at issue here. See Mueller, Note,
Controversial Programming on Cable Television's Public Access
Channels: The Limits of Governmental Response, 38 DePaul L.
Rev. 1051, 1056-1057 (1989) (hereinafter Mueller). See also
Turner Broadcasting, supra, at ___ (slip op., at 3).
PEG access channels grew out of local initiatives in the late 1960's
and early 1970's, before the Federal Government began regulating
cable television. Mueller 1061. Local franchising was the first form
of cable regulation, arising from the need of localities to control
access to public rights-of-way and easements and to minimize
disruption to traffic and other public activity from the laying of cable
lines. See D. Brenner, M. Price, & M. Meyerson, Cable Television
and Other Nonbroadcast Video Section 3.01[3] (1996) (hereinafter
Brenner); Turner Broadcasting, supra, at ___ (slip op., at 2-3)
("[T]he cable medium may depend for its very existence upon
express permission from local governing authorities"). A local
government would set up a franchise authority to oversee the cable
system and to negotiate a franchise agreement specifying the cable
operator's rights and obligations. See Brenner Section 3.01; Section
3.01[4] (discussing States where local franchising has now been
displaced by state regulation). Cf. 47 U. S. C. Section 522(10)
(defining franchise authority). A franchise, now mandatory under
federal law except for systems operating without them prior to 1984,
Section 541(b), is an authorization, akin to a license, by a franchise
authority permitting the construction or operation of a cable system.
Section 522(8). From the early 1970's onward, franchise
authorities began requiring operators to set aside access channels as
a condition of the franchise. See Mueller 1061-1062; D. Agosta, C.
Rogoff, & A. Norman, The Participate Report: A Case Study of
Public Access Cable Television in New York State 24 (1990)
(hereinafter Agosta), attached as Exhibit K to Joint Comments for
the Alliance for Community Media et al., filed with the FCC under
MM Docket No. 92-258.
The FCC entered the arena in 1972, requiring the cable companies
servicing the country's |