OCTOBER TERM, 1995
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 § 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 §
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 §
lO(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 §§ 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 § 10(b) violates the First Amendment.
That section's "segregate and block" requirements have obvious
speechrestrictive 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
*Together with No. 95-227, Alliance for Community Media et al.
v.
Federal Communications Commission et al., also on certiorari to
the same court.
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Syllabus
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, § 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 § lO(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.
753-760.
JUSTICE BREYER, joined by JUSTICE STEVENS, JUSTICE O'CONNOR, and
JUSTICE SOUTER, concluded in Parts I and II that § lO(a) is
consistent with the First Amendment. Pp. 737-753.
(a) Close scrutiny demonstrates that § 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, § lO(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, 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. 622,
635-637. Third, the problem § lO(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, § lO(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
729
that
permits private cable operators to make editorial
decisions, persuasively establishes that § W(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 637-641, distinguished. Pp. 737-748.
(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 § 10(a) an
acceptable constraint on speech also make it an acceptable
limitation on access to the claimed public forum. Pp. 749-750.
(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' programscreening 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 § 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.
750-753.
JUSTICE BREYER, joined by JUSTICE STEVENS and JUSTICE SOUTER,
concluded in Part IV that § 10(c) violates the First Amendment.
Section
W(c), although like § 10(a) a permissive provision,
is different from § W(a) for four reasons. First, cable operators
have not historically exercised editorial control over public
access channels, such that § 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 § 10(c) is
therefore likely less necessary to protect children. Third, the
existence of a system that encourages and secures programming that
the
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Syllabus
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 § 10(c). Consequently, § 10(c)
violates the First Amendment. Pp. 760-766.
JUSTICE KENNEDY, joined by JUSTICE GINSBURG, concurred in the
judgment that § 10(c) is invalid, but for different reasons.
Because the public access channels regulated by §
W(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
W(c) cannot survive strict
scrutiny. Although Congress has a compelling interest in protecting
children from indecent speech, see,
e. g., Sable Communications
of Colo., Inc. v.
FCC, 492 U. S. 115, 126, §
W(c) is not narrowly tailored to serve that interest, since,
among other things, there is no basis in the record establishing
that § 10(c) is the least restrictive means to accomplish that
purpose. See,
e. g., id., 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. 622, 637-641.
There is less cause for a lower standard when the rights of cable
programmers and viewers are at stake. pp. 781-783, 791-794,
803-812.
JUSTICE THOMAS, joined by THE CHIEF JUSTICE and JUSTICE SCALIA,
agreed that § 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. 622, 637, 639.
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 681-682 (O'CONNOR, J., concurring in part
and dissenting in part), the cable operator's editorial rights have
general primacy under the First Amendment over
731
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. 812-826.
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.,
post, p. 768, and SOUTER, J.,
post, p. 774, filed
concurring opinions. O'CONNOR, J., filed an opinion concurring in
part and dissenting in part,
post, p. 779. KENNEDY, J.,
filed an opinion concurring in part, concurring in the judgment in
part, and dissenting in part, in which GINSBURG, J., joined,
post, p. 780. THOMAS, J., filed an opinion concurring in the
judgment in part and dissenting in part, in which REHNQUIST, C. J.,
and SCALIA, J., joined,
post, p. 812.
1. Michael Greenberger argued the cause for
petitioners.
With him on the brief for the Alliance for Community Media et
al., petitioners in No. 95-227, were
James N.
Horwood,
Andrew Jay Schwartzman, Gigi Sohn, Elliot Mincberg, Lawrence
Ottinger, Thomas J. Mikula, and
Mark S.
Raffman. Robert T. Perry and
Brian D. Graifman filed
briefs for the New York Citizens Committee for Responsible Media et
al., petitioners in No. 95-227.
Charles S.
Sims, Steven
R. Shapiro, and
Marjorie Heins filed briefs for the
American Civil Liberties Union et al., petitioners in No.
95-124.
Deputy Solicitor General Wallace argued the cause for
respondents in both cases. With him on the briefs for the federal
respondents were Solicitor General Days, Assistant Attorney General
Hunger, James A. Feldman, Barbara L. Herwig, Jacob M. Lewis,
William E. Kennard, and Christopher
J. Wright. Daniel L.
Brenner, Neal M. Goldberg, and
732
Opinion of BREYER, J.
Diane B. Burstein filed a brief for the National Cable
Television Association, Inc., respondent in both cases. t
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, §§ 10(a), 10(b), and 10(c), 47
U. S. C. §§ 532(h), 532(j), and note following § 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
tBriefs of
amici curiae urging reversal were filed for
the American Booksellers Foundation for Free Expression et al. by
Michael A. Bamberger and
Margaret Jacobs; and for the
Association of American Publishers, Inc., by
R. Bruce Rich
and
Jonathan Bloom.
Briefs of
amici curiae urging affirmance were filed for
the State of New York by
Dennis C.
Vacco, Attorney
General,
Victoria A. Graffeo, Solicitor General,
Barbara
Billet, Deputy Solicitor General, and
Stephen D. Houch
and
Theodore Zang, Jr., Assistant Attorneys General; for the
Family Life Project of the American Center for Law and Justice by
Jay Alan Sekulow, James M. Henderson, Sr., Colby M. May, Keith
A. Fournier, and
Thomas P. Monaghan; for the Family
Research Council et al. by
Cathleen A. Cleaver and
Bruce
A. Taylor; for Morality in Media, Inc., by
Paul
J. McGeady and
Robert W Peters; and for Time
Warner Cable by
Stuart W Gold and
Rebeca L.
Cutler.
Len L. Munsil filed a brief for the National Family Legal
Foundation as
amicus curiae.
733
Act, § 10(a); see § 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, § 10(b); 47 CFR § 76.701(g)
(1995).
We conclude that the first provision-which
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, which
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.
I
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. 622, 629
(1994), as well as some programming that the system operator itself
(or an operator affili-
734
Opinion of BREYER, J.
ate) may provide. Other channels may simply retransmit through
cable the signals of over-the-air broadcast stations.
Ibid.
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. § 532(b). "[PJublic, 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 § 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. §§ 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, § 10(a)(2), 106 Stat. 1486.
735
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, § 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 "3338, 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 reblock it within 30 days of a subscriber's request
to do so. 47 CFR § 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, § 10(c), 106 Stat.
1486.
736
Opinion of BREYER, J.
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 § 76.702 (1995)
(incorporating definition from § 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 that 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.
737
II
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, §
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 speechrestricting "censor."
Furthermore, as this Court has held, the editorial function itself
is an aspect of "speech," see
Turner, 512 U. S., at 636, and
a court's decision that a private party, say, the station owner, is
a "censor," could itself inter-
738
Opinion of BREYER, J.
fere 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 Servo 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 Servo 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 these cases
special ones, 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 633
(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 governmentlocal 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
739
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 petitioners, JUSTICES KENNEDY and THOMAS would have us
decide these cases simply by transferring and applying literally
categorical standards this Court has developed in other contexts.
For JUSTICE KENNEDY, leased access
740
Opinion of BREYER, J.
channels are like a common carrier, cablecast is a protected
medium, strict scrutiny applies, § 10(a) fails this test, and,
therefore, § 10(a) is invalid.
Post, at 796-801, 805-807.
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
816-817, 822-824. 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 Virginia 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 Theatres, 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
741
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 overthe-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
641 (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 formulas
so rigid that they become a straitjacket that disables government
from responding to serious problems. This Court, in different
contexts, has consistently held that 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
742
Opinion of BREYER, J.
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 791-793, 794 (KENNEDY, J., concurring in part,
concurring in judgment in part, and dissenting in part), with
post, at 826-829 (THOMAS, J., concurring in judgment in part
and dissenting in part); whether public access channels are a
public forum,
post, at 791-792 (opinion of 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 799803
(opinion of KENNEDY, J.); whether exclusion from common carriage
must for all purposes be treated like exclusion from a public
forum,
post, at 797-798 (opinion of KENNEDY, J.); and
whether the interests of the owners of communica-
743
tions media always subordinate the interests of all other users
of a medium,
post, at 816-817 (opinion of THOMAS, J.).
Rather than decide these issues, we can decide these cases more
narrowly, by closely scrutinizing § 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; and
the flexibility inherent in an approach that
permits private
cable operators to make editorial decisions, lead us to conclude
that § 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
contextcongressional
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), H. R. Rep. No. 98-934, at 31-36, and the
disadvantage to the First Amendment interests of cable operators
and other programmers (those to whom the cable operator would have
assigned
744
Opinion of BREYER, J.
the channels devoted to access). See
Turner, 512 U. S.,
at 635-637.
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. 438 U. S., at 749750. 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
745
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,
supra, 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,
supra, 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, § 201, 110 Stat. 107 (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 § 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
746
Opinion of BREYER, J.
some speakers-namely, cable operators. See
supra, at 743.
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, 31, 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
747
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 § 10(a) with the
greatest care. Like JUSTICES KENNEDY and THOMAS, we believe that
the interest of protecting children that § 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 805-806. 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 playa legitimate role. Cf.
Turner, 512 U.
S., at 636-637. While we cannot agree with JUSTICE THOMAS that
everything turns on the rights of the cable owner, see
post, at 823-824, 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
748
Opinion of BREYER, J.
closest analogy and lends considerable support to our
conclusion.
Petitioners and JUSTICE KENNEDY, see
post, at 797-798,
803-804, 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 512 U. S., at 637-641. 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 637-641. 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
744-745. JUSTICE KENNEDY would have us decide that
all
common carriage exclusions are subject to the highest scrutiny, see
post, at 796-799, and then decide these cases 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.
749
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."
Ibid. 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 796-799, 805-807.
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 796-800
(opinion of 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 739-743. 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''')
750
Opinion of BREYER, J.
(quoting
Perry, supra, at 46). Our cases have not yet
determined, however, that 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, these cases do 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 these
cases 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-
751
screening authority. Cf.
Hoffman Estates v.
Flipside,
Hoffman Estates, Inc., 455 U. S. 489, 498 (1982)
(citing
Grayned v.
City of 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, § 10(a), 106 Stat. 1486.
See also 47 CFR § 76.702 (1995) (reading approximately the same
definition into § 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[eJ" 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) (concurring opinion). In
752
Opinion of BREYER, J.
§ 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 referredpictures of oral
sex, bestiality, and rape, see 138 Congo Rec. 981, 985 (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 2 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, § 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
753
u. S. 661, 682 (1994) (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-reasonablenessconstrain 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 § 10(a) is
consistent with the First Amendment.
III
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, § 10(b). In
particular, as previously mentioned, see
supra, at 735, 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
754
reblock the channel within 30 days of a subscriber's request for
reblocking. 1992 Act, § 10(b); 47 CFR §§ 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. §§ 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).
755
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." Brief for Federal Respondents 11.
We agree with the Government that protection of children is a
"compelling interest." See
supra, at 743. 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 745748 (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 641 (using "heightened
scrutiny" to address content-neutral structural regulations of
cable systems);
id., at 662 (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.
618, 624 (1995) (restriction must be "narrowly drawn");
id., at 632 (there must be a
756
"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,
§ 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. § 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. § 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 pro vi-
757
sions 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-calI-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/blocklwritten-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 sexdedicated
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 Government 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
758
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. §
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, ,
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
"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
759
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 Government'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.
760
Opinion of BREYER, J.
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, 481 U. S., at
231-232.
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.
IV
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, §
10(c); 47 CFR § 76.702 (1995). But there are four important
differences.
The first is the historical background. As JUSTICE KENNEDY
points out, see
post, at 788-790, 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 827-828, the requirement to reserve
capacity for public access channels is similar to the reservation
of a public easement, or a dedica-
761
tion of land for streets and parks, as part of a municipality's
approval of a subdivision of land. Cf.
post, at 793-794
(opinion of 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 § 10(a)
therefore, § 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 792-793 (opinion of 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. § 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 §
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 ,
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) (hereinafter Agosta),
attached as Exh. K to Joint Comments for the Alliance for Community
Media et al., filed with the FCC under MM Docket No. 92-
762
Opinion of BREYER, J.
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");
id., at 28-32, FCC Record; Comments of N ational 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, Price, & Myerson,
supra, ,
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. §43-1829 (1990 and Supp.1996); Lynchburg City Code
§ 12.144(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 , 26, 8 FCC Rcd, at 2642
("[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 Boston
Community Access and Programming Foundation, App. 163-164;
Aufderheide,
id., at 69-71; Comments of Metropolitan Area
Communications Commission 2, FCC Record; Reply Comments of Waycross
Community Television 4-6, FCC Record; Reply Comments of Columbus
Community Cable Access, Inc., App. 329; Reply Comments of City of
St. Paul,
id., at 318, 325; Reply Comments of Erik
763
Mollberg, Public Access Coordinator, Ft. Wayne, Ind., 3, FCC
Record; Comments of Defiance Community Television 3, FCC Record;
Comments of Nutmeg Public Access Television, Inc., 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,
26, 8 FCC Rcd 2642.
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
764
Opinion of BREYER, J.
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 Congo Rec. 984, 990 (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 Congo Rec., at 989
(statement of Sen. Fowler) (describing solicitation of
prostitution);
id., at 985 (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, at 2638;
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
765
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 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 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.,
id., at 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.,
id., 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
766
Opinion of BREYER, J.
of a self-help gynecological examination); Comments of Time
Warner Entertainment Co., App. 252 (describing an Austin, Tex.,
program 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 Congo Rec., at 985 (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., at
664-665.
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 § 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.
767
v
Finally, we must ask whether § 10(a) is severable from the two
other provisions. The question is one of legislative intent: Would
Congress still "have passed" § 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, § 10(a), to stand
irrespective of § 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, § 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 § 10(a), standing
768
STEVENS, J., concurring
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.
VI
For these reasons, the judgment of the Court of Appeals is
affirmed insofar as it upheld § 10(a); the judgment of the Court of
Appeals is reversed insofar as it upheld § 10(b) and § 10(c).
It is so ordered.
JUSTICE STEVENS, concurring.
The difference between § 10(a) and § 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).
I
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. §532(b). On
769
these channels, federal law generally prohibits the cable
operator from exercising any control over program content, see §
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 § 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. 622, 643-646
(1994), 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 ac-
770
STEVENS, J., concurring
cess 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 &
Ed. Fund, Inc., 473 U. S. 788,806
lOur precedents recognize that reasonable restraints may be
placed on access to certain well-regulated fora. There is no reason
why cable television should be treated differently. See
Rosenberger v.
Rector and Visitors of Univ. of Va.,
515 U. S. 819,
829 (1995);
id., at 892-895, 899 (SOUTER, J., dissenting);
see also
Widmar v.
Vincent, 454 U. S. 263, 278 (1981)
(STEVENS, J., concurring in judgment) ("I should think it obvious,
for example, that if two groups of 25 students requested the use of
a room at a particular time-one to view Mickey Mouse cartoons and
the other to rehearse an amateur performance of Hamlet-the First
Amendment would not require that the room be reserved for the group
that submitted its application first");
Red Lion Broadcasting
Co. v.
FCC, 395 U. S. 367, 394 (1969)
(approving access requirement limited to "matters of great public
concern").
2 For purposes of these cases, canons of constitutional
avoidance require us to assume that the Government has the
authority to impose leased access requirements on cable operators.
Indeed, no party to this litigation contends to the contrary.
Because petitioners' constitutional claim depends for its success
on the constitutionality of the underlying access rights, they
certainly cannot complain if we decide the cases on that
assumption.
771
(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 these cases I find no basis for concluding that §
10(a) is a species of viewpoint discrimination. By returning
control over indecent programming to the cable operator, § 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 § 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,"
post, at 802
(KENNEDY, J., concurring in part, concurring in judgment 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);
772
STEVENS, J., concurring
FCC v.
Pacifica Foundation, 438 U. S. 726 (1978).
There is no reason to conclude otherwise here.
Finally, § 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);
post, at 807 (KENNEDY, J., concurring in part,
concurring in judgment 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. 352 U. S., at 381.
In sum, § 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.
II
As both JUSTICE BREYER and JUSTICE KENNEDY have explained, the
public, educational, and governmental access channels that are
regulated by § 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
734, 760-762 (opinion of BREYER, J.);
post, at 788-790,
791-794 (KENNEDY, J., concurring in part, concurring in judgment 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 761-763 (opinion of BREYER, J.) Presumably, as
JUSTICE BREYER explains, the local authorities seldom permit
programming of the type described by § 10(c) to air.
Ante,
at 762-763.
773
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 § 10(c), the federal statute would disable local governments
from making that choice. It would inject federally authorized
private censors into fora from which they might otherwise be
excluded, and it would therefore limit local fora 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 §
10(a), that define the limits of federally created access rights.
See
supra, at 769-770. The Federal Government has no more
entitlement to restrict the power of a local authority to
disseminate materials on channels of its own creation, than it has
to restrict the power of cable operators to do so on channels that
they own. 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 Gov-
3 Although in 1984 Congress essentially barred cable operators
from exercising editorial control over PEG channels, see 47 U. S.
C. § 531(e), § 10(c) does not merely restore the status quo
ante. Section 10(c) authorizes private operators to exercise
editorial discretion over "indecent" programming even if the
franchising authority objects. Under the pre-1984 practice, local
franchising authorities were free to exclude operators from
exercising any such control on PEG channels.
774
SOUTER,~,concurring
ernment 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 763-766. 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 § lO(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 § lO(c) should be reversed.
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 these cases for anything but a
categorical and rule-based approach applying a fixed level of
scrutiny, the strictest, to judge the content-based provisions of
§§ lO(a), (b), and (c), and he accordingly faults the principal
opinion
1 See,
e. g., Blasi, The Pathological Perspective
and the First Amendment, 85 Colum. L. Rev. 449,474 (1985) (arguing
that "courts ... should place a premium on confining the range of
discretion left to future decisionmakers who will be called upon to
make judgments when pathological pressures are most intense").
775
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 these cases.
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 fiat 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 these cases with cable
transmission necessarily suggest that a simple category sub-
2 Our indecency cases since
Pacifica have likewise turned
as much on the context or medium of the speech as on its content.
See,
e. g., Sable Communications ofCal., Inc. v.
FCC,
492 U. S. 115,
127-128 (1989) (distinguishing
Pacifica in part on the
ground that the telephonic medium at issue was less intrusive than
broadcast television);
Renton v.
Playtime Theatres,
Inc., 475 U. S.
41, 47, 54 (1986) (permitting zoning regulation of adult
theaters based on their "secondary effects");
Bethel School
Dist. No. 403 v.
Fraser, 478 U. S. 675, 685-686
(1986) (upholding restriction on indecent speech in a public
school).
3 Our analysis of another important strand of the present cases,
the right of owners of the means of communication to refuse to
serve as conduits for messages they dislike, has been equally
contextual. Compare
Red Lion Broadcasting Co. v.
FCC,
395 U. S. 367
(1969) (upholding a right-of-reply requirement in the broadcasting
context), with
Miami Herald Publishing Co. v.
Tornillo, 418
U. S. 241 (1974) (rejecting such a requirement for print
journalism).
776
SOUTER,~,concurring
ject 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 Broadcasting Co. v.
FCC, 395 U. S.
367 (1969), see
Turner Broadcasting System, Inc. v.
FCC, 512 U. S.
622, 638-639 (1994) (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 744-745. 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, § 551, 110
Stat. 139-142 (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 Title III,
id., at 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 cybertechnology of the Internet and the World Wide
Web approach the day of using a common receiver, we can
777
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 these cases may usefully be measured against the ones at
issue in
Pacifica.5 If
4 See,
e. g., Lynch, Speedier Access: Cable and
Phone Companies Compete, at
http://www.usatoday.com/life/cyber/bonus/cb006.htm
(June 17, 1996) (describing cable modem technology); Gateway 2000
ships first Destination big screen TV-PC's, at
http://www.gw2k.com/corpinfo/press/1996/
destin.htm (Apr. 29, 1996) (describing computer with both cable TV
and Internet reception capability).
5 See,
e. g., Sunstein, On Analogical Reasoning,
106 Harv. L. Rev. 741, 786 (1993) (observing that analogical
reasoning permits "greater flexibility ... over time"); Sullivan,
Post-Liberal Judging: The Roles of Categorization and Balancing, 63
U. Colo. L. Rev. 293, 295, n. 6 (1992) (noting that
778
SOUTER,~,concurring
that means it will take some time before reaching a final method
of review for cases like these, 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.
Committee for Industrial
Organization, 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
halfcentury 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)
(per curiam).
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."
"once the categories are established ... the categorical mode
leads to briefs and arguments that concentrate much more on
threshold characterization than on comparative analysis").
779
JUSTICE O'CONNOR, concurring in part and dissenting in part.
I agree that § 10(a) is constitutional and that § 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 §§ 10(a) and 10(c),
ante, at
760, are sufficient to justify striking down § 10(c). I find the
features shared by § 10(a), which covers leased access channels,
and § 10(c), which covers public access channels, to be more
significant than the differences. For that reason, I would find
that § 10(c) also withstands constitutional scrutiny.
Both §§ 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
744-745, 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
sexrelated programming, §§ 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 to broadcast indecent programming, and, therefore, are less
restrictive than an absolute governmental ban. Certainly § 10(c) is
not
more restrictive than § 10(a) in this regard.
It is also significant that neither § 10(a) nor § 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 under-
780
Opinion of KENNEDY, J.
take 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 § 10(a), is within the range of
acceptability set by
Pacifica. See
ante, at
744-747.
The distinctions upon which the Court relies in deciding that §
10(c) must fall while § 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 § 10(a)
were a product of the Federal Government, while the public access
channels at issue in § 10(c) arose as part of the cable franchises
awarded by municipalities, see
ante, at 761-762, but I am
not persuaded that the difference in the origin of the access
channels is sufficient to justify upholding § 10(a) and striking
down § 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 761-763,
sufficient in my mind to render § 10(c) so ill tailored to its goal
as to be unconstitutional.
Given the compelling interest served by § 10(c), its permissive
nature, and its fit within our precedent, I would hold § 10(c),
like § 10(a), constitutional.
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 § 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 signifi-
781
cance; 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-bycase 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, § 10(a) seems fine. I think the
implications of our past cases for these cases are clearer than the
plurality suggests, and they require us to hold § 10(a) invalid.
Though I join Part III of the opinion (there for the Court)
striking down § 10(b) of the Act, and concur in the judgment that §
10(c) is unconstitutional, with respect I dissent from the
remainder.
I
Two provisions of the 1992 Act, §§ 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), § 10(c) requires
the agency to make regu-
782
Opinion of KENNEDY, J.
lations enabling cable operators to prohibit indecent
programming on PEG access channels. See
ante, at 734-736
(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
737, avoiding the mistake made by the Court of Appeals,
Alliance
for Community Media v.
FCC, 56 F.3d
105, 112-121 (CADC 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
*The Telecommunications Act of 1996, §§ 506(a), (b), 110 Stat.
136, 137, permits a cable operator to refuse to transmit any leased
or public access program or portion thereof which contains
"obscenity, indecency, or nudity." The constitutionality of the
1996 amendments, to the extent they differ from the provisions
here, is not before us.
783
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 himself 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. 622,
641 (1994). 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
642.
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 §§ 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 these cases
are not drawn with enough care to withstand scrutiny under our
precedents.
784
Opinion of KENNEDY, J.
II
Before engaging the complexities of cable access channels and
explaining my reasons for thinking all of § 10 unconstitutional, I
start with the most disturbing aspect of the plurality opinion: its
evasion of any clear legal standard in deciding these cases. See
ante, at 741 (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 742. 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, these cases are
complicated, not simple; the importance of contextual review, we
are told, cannot be evaded by recourse to simple analogies.
Ante, at 739-743, 748. All this is true, but use of a
standard does not foreclose consideration of context. Indeed, if
strict scrutiny is an instance of "judicial formulas so rigid that
they become a straitjacket that disables government from responding
to serious problems,"
ante, at 741, 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,
785
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 740-741, 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 741-742;
ante, at 776-777 (SOUTER, J., concurring). The laws
challenged here, however, do not retool the structure of the cable
industry or (with the exception of § 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 af-
786
Opinion of KENNEDY, J.
forded 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 these cases: 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 743.
(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 741.) 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
these cases without uttering some sort of standard; so it has
settled for synonyms. "[C]lose judicial scrutiny,"
ibid., is
substituted for strict scrutiny, and "extremely important problem,"
ante, at 743, or "extraordinary proble[m],"
ante, at
741, is substituted for "compelling interest." The admonition that
the restriction not be unnecessarily great in light of the interest
it serves,
ante, at 743, 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 741, "sufficiently
tailored,"
ante, at 743, or "carefully and appropriately
addressed,"
ante, at 748, 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
787
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 these cases 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 778. 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.
III A
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; pro-
788
Opinion of KENNEDY, J.
grams 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, 512 U. S., at 628-629.
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 rightsof-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 § 3.01[3]
(1996) (hereinafter Brenner);
Turner Broadcasting, supra, at
628 ("[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 § 3.01; § 3.01[4]
(discussing States where local franchising has now been displaced
by state regulation). Cf. 47 U. S. C. § 522(10) (defining franchise
authority). A franchise, now mandatory under federal law except for
systems operating without them prior to 1984, § 541(b), is an
authorization, akin to a license, by a franchise authority
permitting the construction or operation of a cable system. §
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
789
Community Media et al., filed with the FCC under MM Docket No.
92-258 (hereinafter FCC Record).
The FCC entered the arena in 1972, requiring the cable companies
servicing the country's largest television markets to set aside
four access channels (one each for public, educational,
governmental, and leased programming) by a date certain, and to add
channel capacity if necessary to meet the requirement.
Cable
Television Report and Order, 36 F. C. C. 2d 141, 189-198
(1972). See also
In re Amendment of Part 76
of the
Commission's Rules and Regulations Concerning the Cable Television
Channel Capacity and Access Channel Requirements of Section
76.251, 59 F. C. C. 2d 294, 303, 321 (1976) (modifying the 1972
rules). We struck down the access rules as beyond the FCC's
authority under the Communications Act of 1934.
FCC v.
Midwest Video Corp., 440 U. S. 689, 708-709
(1979).
When Congress turned its attention to PEG access channels in
1984, it recognized that "reasonable third-party access to cable
systems will mean a wide diversity of information sources for the
public-the fundamental goal of the First Amendment-without the need
to regulate the content of programming provided over cable." H. R.
Rep. No. 98-934, p. 30 (1984). It declined, however, to set new
federal mandates or authorize the FCC to do so. Since "[a]lmost all
recent franchise agreements provide for access by local
governments, schools, and non-profit and community groups" over
some channels, the 1984 Act instead "continue[d] the policy of
allowing cities to specify in cable franchises that channel
capacity and other facilities be devoted to such use."
Ibid.
Section 611 of the Communications Act of 1934, added by the
Cable Communications Policy Act of 1984 (1984 Act), authorized
local franchise authorities to require cable operators to set aside
channel capacity for PEG access when seeking new franchises or
renewal of old ones. 47 U. S. C. §531(b).
790
Opinion of KENNEDY, J.
Franchise authorities may enforce franchise agreements, §
531(c), but they lack the power to impose requirements beyond those
authorized by federal law, § 531(a). But cf. § 557(a)
(grandfathering as valid all pre-1984 franchise agreements for the
remainder of their term). Federal law also allows a franchise
authority to "require adequate assurance that the cable operator
will provide adequate public, educational, and governmental access
channel capacity, facilities, or financial support." § 541(a)(
4)(B). Prior to the passage of § 10(c) of the 1992 Act, the cable
operator, save for implementing provisions of its franchise
agreement limiting obscene or otherwise constitutionally
unprotected cable programming, § 544(d), was forbidden any
editorial control over PEG access channels. 47 U. s. C. § 531(e)
(1988 ed.).
Congress has not, in the 1984 Act or since, defined what public,
educational, or governmental access means or placed substantive
limits on the types of programming on those channels. Those tasks
are left to franchise agreements, so long as the channels comport
in some sense with the industry practice to which Congress referred
in the statute.
My principal concern is with public access channels (the P of
PEG). These are the channels open to programming by members of the
public. Petitioners here include public access programmers and
viewers who watch their shows. By contrast, educational and
governmental access channels (the E and G of PEG) serve other
speakers. Under many franchises, educational channels are
controlled by local school systems, which use them to provide
school information and educational programs. Governmental access
channels are committed by the cable franchise to the local
municipal government, which uses them to distribute information to
constituents on public affairs. Mueller 1065-1066. No local
governmental entity or school system has petitioned for relief in
these cases, and none of the petitioners who are viewers has
asserted an interest in viewing educational or governmental
programming or briefed the relevant issues.
791
B
The public access channels established by franchise agreements
tend to have certain traits. They are available at low or no cost
to members of the public, often on a first-come, first-served
basis. Brenner § 6.04[3][a]-[b], at 6-38. The programmer on one of
these channels most often has complete control over, as well as
liability for, the content of its show.
Ibid.; Mueller 1064.
The entity managing the technical aspects of public access, such as
scheduling and transmission, is not always the cable operator; it
may be the local government or a third party that runs the access
centers, which are facilities made available for the public to
produce programs and transmit them on the access channels. Brenner
§ 6.04[7], at 6-48.
Public access channels meet the definition of a public forum. We
have recognized two kinds of public fora. The first and most
familiar are traditional public fora, like streets, sidewalks, and
parks, which by custom have long been open for public assembly and
discourse.
Perry, 460 U. S., at 45;
Hague v.
Committee for Industrial Organization, 307 U. S. 496, 515 (1939)
(opinion of Roberts, J.). "The second category of public property
is the designated public forum, whether of a limited or unlimited
character-property that the State has opened for expressive
activity by part or all of the public."
International Soc.for
Krishna Consciousness, Inc. v.
Lee, 505 U. S. 672, 678
(1992).
Public access channels fall in the second category. Required by
the franchise authority as a condition of the franchise and open to
all comers, they are a designated public forum of unlimited
character. The House Report for the 1984 Act is consistent with
this view. It characterized public access channels as "the video
equivalent of the speaker's soap box or the electronic parallel to
the printed leaflet. They provide groups and individuals who
generally have not had access to the electronic media with the
opportunity to become sources of information in the electronic
mar-
792
Opinion of KENNEDY, J.
ketplace of ideas." H. R. Rep. No. 98-934,
supra, at 30.
Public fora do not have to be physical gathering places,
Rosenberger v.
Rector and Visitors of Univ. of Va.,
515 U. S. 819,
830 (1995), nor are they limited to property owned by the
government,
Cornelius v.
NAACP Legal Defense &
Ed. Fund, Inc., 473 U. S. 788,800 (1985).
Indeed, in the majority of jurisdictions, title to some of the most
traditional of public fora, streets and sidewalks, remains in
private hands. lOA E. McQuillin, Law of Municipal Corporations §
30.32 (3d ed. 1990);
Hague, supra, at 515 ("Wherever the
title of streets and parks may rest, they have immemorially been
held in trust for the use of the public and, time out of mind, have
been used for purposes of assembly, communicating thoughts between
citizens, and discussing public questions"). Public access channels
are analogous; they are public fora even though they operate over
property to which the cable operator holds title.
It is important to understand that public access channels are
public fora created by local or state governments in the cable
franchise. Section § 10(c) does not, as the Court of Appeals
thought, just return rightful First Amendment discretion to the
cable operator, see
Alliance for Community Media, 56 F. 3d,
at 114. Cable operators have First Amendment rights, of course;
restrictions on entry into the cable business may be challenged
under the First Amendment,
Los Angeles v.
Preferred
Communications, Inc., 476 U. S. 488, 494
(1986), and a cable operator's activities in originating programs
or exercising editorial discretion over programs others provide on
its system also are protected,
Turner Broadcasting, 512 U.
S., at 636. But cf.
id., at 656 (distinguishing discretion
of cable operators from that of newspaper editors). Yet the
editorial discretion of a cable operator is a function of the cable
franchise it receives from local government. The operator's right
to exercise any editorial discretion over cable service disappears
if its franchise is terminated. See 47 U. S. C. § 541(b) (cable
service may not
793
be offered without a franchise); § 546 (prescribing procedures
and standards for renewal). Cf. Brenner § 3.07[9][a] (franchise
terms of 15 years are the norm); § 3.07[15] (typical franchise
agreements recognize the absolute right of the franchiser to refuse
renewal at expiration of term). If the franchise is transferred to
another, so is the right of editorial discretion. The cable
operator may own the cables transmitting the signal, but it is the
franchise-the agreement between the cable operator and the local
government-that allocates some channels to the full discretion of
the cable operator while reserving others for public access.
In providing public access channels under their franchise
agreements, cable operators therefore are not exercising their own
First Amendment rights. They serve as conduits for the speech of
others. Cf.
PruneYard Shopping Center v.
Robins,
447 U. S. 74,87
(1980). Section 10(c) thus restores no power of editorial
discretion over public access channels that the cable operator once
had; the discretion never existed. It 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. By enacting a law in 1992 excluding
indecent programming from protection but retaining the prohibition
on cable operators' editorial control over all other protected
speech, the Federal Government at the same time ratified the
public-forum character of public access channels but discriminated
against certain speech based on its content.
The plurality refuses to analyze public access channels as
public fora because it is reluctant to decide "the extent to which
private property can be designated a public forum,"
ante, at
742. We need not decide here any broad issue whether private
property can be declared a public forum by simple governmental
decree. That is not what happens in the creation of public access
channels. Rather, in return for granting cable operators easements
to use public rights-of-
794
Opinion of KENNEDY, J.
way for their cable lines, local governments have bargained for
a right to use cable lines for public access channels. JusTICE
THOMAS resists public-forum analysis because he sees no evidence of
a "formal easement."
Post, at 828. Under general principles
of property law, no particular formalities are necessary to create
an easement. Easements may be created by contract. 2 G. Thompson,
Commentaries on the Modern Law of Real Property §§ 331-332 (1980);
3 H. Tiffany, The Law of Real Property § 776 (3d ed. 1939). A
franchise agreement is a contract, and in those agreements the
cable operator surrenders his power to exclude certain programmers
from use of his property for specific purposes. A state court
confronted with the issue would likely hold the franchise agreement
to create a right of access equivalent to an easement in land. So
one can even view these cases as a local government's dedication of
its own property interest to speech by members of the public. In
any event, it seems to me clear that when a local government
contracts to use private property for public expressive activity,
it creates a public forum.
Treating access channels as public fora does not just place a
label on them, as the plurality suggests, see
ante, at 750.
I t defines the First Amendment rights of speakers seeking to use
the channels. When property has been dedicated to public expressive
activities, by tradition or government designation, access is
protected by the First Amendment. Regulations of speech content in
a designated public forum, whether of limited or unlimited
character, are "subject to the highest scrutiny" and "survive only
if they are narrowly drawn to achieve a compelling state interest."
Lee, 505 U. S., at 678. Unless there are reasons for
applying a lesser standard, § 10(c) must satisfy this stringent
review.
C
Leased access channels, as distinct from public access channels,
are those the cable operator must set aside for un-
795
affiliated programmers who pay to transmit shows of their own
without the cable operator's creative assistance or editorial
approval. In my view, strict scrutiny also applies to § 10(a)'s
authorization to cable operators to exclude indecent programming
from these channels.
Congress created leased access channels in the 1984 Act.
Section 612 of the Act, as amended, requires a cable system with
more than 36 channels to set aside a certain percentage of its
channels (up to 15%, depending on the size of the system) "for
commercial use by persons unaffiliated with the operator." 47 U. S.
C. § 532(b)(1). Commercial use means "provision of video
programming, whether or not for profit." § 532(b)(5). When an
unaffiliated programmer seeks access, the cable operator shall set
"the price, terms, and conditions of such use which are at least
sufficient to assure that such use will not adversely affect the
operation, financial condition, or market development of the cable
system," § 532(c)(1). Cf. 47 CFR § 76.971 (1995) (rules governing
terms and conditions of leased access). The price may not exceed
the maximum charged any unaffiliated programmer in the same program
category for the use of nonaccess channels. § 76.970. Aggrieved
programmers have recourse to federal district court and the FCC (if
there are repeated violations) to compel access on appropriate
terms. 47 U. S. C. §§ 532(d), (e).
Before 1992, cable operators were forbidden editorial control
over any video programming on leased access channels, and could not
consider the content of the programming except to set the price of
access, 47 U. S. C. § 532(c)(2) (1988 ed.). But cf. 47 U. S. C.
§532(h) (prohibiting programs that are obscene or otherwise
unprotected under the Constitution on leased access channels).
Section 10(a) of the 1992 Act modifies the no-discretion rule by
allowing cable operators to reject, pursuant to a written and
published policy, programs they reasonably believe to be indecent.
§ 532(h). Under § 10(b) of the Act, any indecent programming must
be
796
Opinion of KENNEDY, J.
segregated onto one channel and blocked unless the subscriber
requests that the channel be provided to him. § 532(j); 47 CFR §
76.701 (1995).
Two distinctions between public and leased access channels are
important. First, whereas public access channels are required by
state and local franchise authorities (subject to certain federal
limitations), leased access channels are created by federal law.
Second, whereas cable operators never have had editorial discretion
over public access channels under their franchise agreements, the
leased access provisions of the 1984 Act take away channels the
operator once controlled. Cf.
Midwest Video, 440 U. S., at
708, n. 17 (federal mandates "compelling cable operators
indiscriminately to accept access programming will interfere with
their determinations regarding the total service offering to be
extended to subscribers"). In this sense, § 10(a) now gives back to
the operator some of the discretion it had before Congress imposed
leased access requirements in the first place.
The constitutionality under
Turner Broadcasting, 512 U.
S., at 665-668, of requiring a cable operator to set aside leased
access channels is not before us. For purposes of these cases, we
should treat the cable operator's rights in these channels as
extinguished, and address the issue these petitioners present:
namely, whether the Government can discriminate on the basis of
content in affording protection to certain programmers. I cannot
agree with JUSTICE THOMAS,
post, at 821-822, that the cable
operator's rights inform this analysis.
Laws requiring cable operators to provide leased access are the
practical equivalent of making them common carriers, analogous in
this respect to telephone companies: They are obliged to provide a
conduit for the speech of others. The plurality resists any
classification of leased access channels (as created in the 1984
Act) as a common-carrier provision,
ante, at 739-740,
although we described in just those
797
terms the access (including leased access) rules promulgated by
the FCC in 1976:
"The access rules plainly impose common-carrier obligations on
cable operators. Under the rules, cable systems are required to
hold out dedicated channels on a first-come, nondiscriminatory
basis. Operators are prohibited from determining or influencing the
content of access programming. And the rules delimit what operators
may charge for access and use of equipment." Midwest Video,
440 U. S., at 701-702 (citations and footnotes omitted).
Indeed, we struck down the FCC's rules as beyond the agency's
statutory authority at the time precisely because they made cable
operators common carriers.
Id., at 702709. The FCC
characterizes § 612 as a form of commoncarrier requirement, App. to
Pet. for Cert. 139a-140a, as does the Government, Brief for Federal
Respondents 23.
Section 10(a) authorizes cable operators to ban indecent
programming on leased access channels. We have held that a law
precluding a common carrier from transmitting protected speech is
subject to strict scrutiny,
Sable Communications, 492 U. S.,
at 131 (striking down ban on indecent telephonic communications),
but we have not had occasion to consider the standard for reviewing
a law, such as § 10(a), permitting a carrier in its discretion to
exclude specified speech.
Laws removing common-carriage protection from a single form of
speech based on its content should be reviewed under the same
standard as content-based restrictions on speech in a public forum.
Making a cable operator a common carrier does not create a public
forum in the sense of taking property from private control and
dedicating it to public use; rather, regulations of a common
carrier dictate the manner in which private control is exercised. A
common-carriage
798
Opinion of KENNEDY, J.
mandate, nonetheless, serves the same function as a public
forum. It ensures open, nondiscriminatory access to the means of
communication. This purpose is evident in the statute itself and in
the committee findings supporting it. Congress described the leased
access requirements as intended "to promote competition in the
delivery of diverse sources of video programming and to assure that
the widest possible diversity of information sources are made
available to the public from cable systems in a manner consistent
with growth and development of cable systems." 47 U. S. C. §
532(a). The House Committee reporting the 1984 cable bill
acknowledged that, in general, market demand would prompt cable
operators to provide diverse programming. It recognized, though,
the incentives cable operators might have to exclude "programming
which represents a social or political viewpoint that a cable
operator does not wish to disseminate, or ... competes with a
program service already being provided by that cable system." H. R.
Rep. No. 98934, at 48. In its view, the leased access provisions
were narrowly drawn structural regulations of private industry, cf.
Associated Press v.
United States, 326 U. S. 1 (1945), to
enhance the free flow and diversity of information available to the
public without governmental intrusion into decisions about program
content. H. R. Rep. No. 98-934,
supra, at 32-35. The
functional equivalence of designating a public forum and mandating
common carriage suggests the same scrutiny should be applied to
attempts in either setting to impose content discrimination by law.
Under our precedents, the scrutiny is strict.
"The Constitution forbids a State to enforce certain exclusions
from a forum generally open to the public even if it was not
required to create the forum in the first place. Widmar v.
Vincent, 454
U. S. 263 (1981) (university meeting facilities); City of
Madison Joint School District v. Wisconsin Employment
Relations Comm'n, 429 U. S. 167 (1976)
(school board meeting); Southeast-
799
ern Promotions, Ltd. v. Conrad, 420 U. S. 546 (1975)
(municipal theater). Although a State is not required to
indefinitely retain the open character of the facility, as long as
it does so it is bound by the same standards as apply in a
traditional public forum. Reasonable time, place, and manner
regulations are permissible, and a content-based prohibition must
be narrowly drawn to effectuate a compelling state interest."
Perry, 460 U. S., at 45-46 (footnote omitted).
In
Police Dept. of Chicago v.
Mosley, 408 U. S. 92 (1972), we
made clear that selective exclusions from a public forum were
unconstitutional. Invoking the First and Fourteenth Amendments to
strike down a city ordinance allowing only labor picketing on any
public way near schools, we held the "government may not grant the
use of a forum to people whose views it finds acceptable, but deny
use to those wishing to express less favored or more controversial
views."
Id., at 96.
"Once a forum is opened up to assembly or speaking by some
groups, government may not prohibit others from assembling or
speaking on the basis of what they intend to say. Selective
exclusions from a public forum may not be based on content alone,
and may not be justified by reference to content alone."
Ibid.
Since the same standard applies to exclusions from limited or
unlimited designated public fora as from traditional forums,
Lee, 505 U. S., at 678, there is no reason the kind of
selective exclusion we condemned in
Mosley should be
tolerated here.
The plurality acknowledges content-based exclusions from the
right to use a common carrier could violate the First Amendment. It
tells us, however, that it is wary of analogies to doctrines
developed elsewhere, and so does not address this issue.
Ante, at 749. This newfound aversion to analogical reasoning
strikes at a process basic to legal analy-
800
Opinion of KENNEDY, J.
sis. See E. Levi, An Introduction to Legal Reasoning 1-2 (1949).
I am not suggesting the plurality should look far afield to other
areas of law; these are settled First Amendment doctrines dealing
with state action depriving certain speakers of protections
afforded to all others.
In all events, the plurality's unwillingness to consider our
public-forum precedents does not relieve it of the burden of
explaining why strict scrutiny should not apply. Except in
instances involving well-settled categories of proscribable speech,
see
R. A. V:, 505 U. S., at 382-390, strict scrutiny is the
baseline rule for reviewing any content-based discrimination
against speech. The purpose of forum analysis is to determine
whether, because of the property or medium where speech takes
place, there should be any dispensation from this rule. See
Consolidated Edison Co. of N.
Y. v.
Public Service
Comm'n of N.
Y., 447 U. S. 530, 538-539
(1980). In the context of government property, we have recognized
an exception "[w]here the government is acting as a proprietor,
managing its internal operations, rather than acting as lawmaker
with the power to regulate or license," and in those circumstances,
we have said, regulations of speech need only be reasonable and
viewpoint neutral.
Lee, supra, at 678-679. Here, of course,
the Government has not dedicated the cable operator's property for
leased access to serve some proprietary function of its own; it has
done so to provide a forum for a vital class of programmers who
otherwise would be excluded from cable television.
The question remains whether a dispensation from strict scrutiny
might be appropriate because § 10(a) restores in part an editorial
discretion once exercised by the cable operator over speech
occurring on its property. This is where public-forum doctrine
gives guidance. Common-carrier requirements of leased access are
little different in function from designated public fora, and no
different standard of review should apply. It is not that the
functional equivalence of leased access channels to designated
public fora
801
compels strict scrutiny; rather, it simply militates against
recognizing an exception to the normal rule.
Perhaps, as the plurality suggests,
ante, at 749-750, §
10(a) should be treated as a limitation on a forum rather than an
exclusion from it. This would not change the analysis, however. If
Government has a freer hand to draw contentbased distinctions in
limiting a forum than in excluding someone from it, the First
Amendment would be a dead letter in designated public fora; every
exclusion could be recast as a limitation. See Post, Between
Governance and Management: the History and Theory of the Public
Forum, 34 UCLA L. Rev. 1713, 1753 (1987). We have allowed
content-based limitations of public fora, but only when necessary
to serve specific institutional ends. See
Perry, 460 U. S.,
at 48 (school mailboxes, if considered designated public fora,
could be limited to mailings from "organizations that engage in
activities of interest and educational relevance to students");
Widmar v.
Vincent, 454 U. S. 263, 267-268,
n. 5 (1981) (recognizing a public university could limit the use of
its facilities by reasonable regulations compatible with its
mission of education);
Madison Joint School Dist. No.8 v.
Wisconsin Employment Relations Comm'n, 429 U. S. 167, 175, n. 8
(1976) (in assessing a teacher's right to speak at a school board
meeting, considering it obvious that "public bodies may confine
their meetings to specified subject matter"). The power to limit or
redefine fora for a specific legitimate purpose, see
Rosenberger, 515 U. S., at 829-830, does not allow the
government to exclude certain speech or speakers from them for any
reason at all.
Madison Joint School Dist., supra, illustrates the point.
The Wisconsin Employment Relations Commission had ordered a
school board to prohibit school employees other than union
representatives from speaking at its meetings on matters subject to
collective bargaining between the board and the union.
Id.,
at 173. While recognizing the power of a State to limit school
board meetings to certain subject mat-
802
Opinion of KENNEDY, J.
ter, we held it could not confine the forum "to one category of
interested individuals."
Id., at 175. The exclusion would
skew the debate and deprive decisionmakers of the benefit of other
voices.
Id., at 175-176.
It is no answer to say Congress does not have to create access
channels at all, so it may limit access as it pleases. Whether or
not a government has any obligation to make railroads common
carriers, under the Equal Protection Clause it could not define
common carriage in ways that discriminate against suspect classes.
See
Bailey v.
Patterson, 369 U. S. 31, 33 (1962)
(per curiam) (States may not require railroads to segregate
the races). For the same reason, even if Congress has no obligation
to impose common-carriage rules on cable operators or retain them
forever, it is not at liberty to exclude certain forms of speech
from their protection on the suspect basis of content. See
Perry, supra, at 45-46.
I do not foreclose the possibility that the Government could
create a forum limited to certain topics or to serving the special
needs of certain speakers or audiences without its actions being
subject to strict scrutiny. This possibility seems to trouble the
plurality, which wonders if a local government must "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)."
Ante, at 750. This is not the correct analogy. These cases
are more akin to the Government's creation of a band shell in which
all types of music might be performed except for rap music. The
provisions here are content-based discriminations in the strong
sense of suppressing a certain form of expression that the
Government dislikes or otherwise wishes to exclude on account of
its effects, and there is no justification for anything but strict
scrutiny here.
Giving government free rein to exclude speech it dislikes by
delimiting public fora (or common-carriage provisions) would have
pernicious effects in the modern age. Minds are
803
not changed in streets and parks as they once were. To an
increasing degree, the more significant interchanges of ideas and
shaping of public consciousness occur in mass and electronic media.
Cf.
United States v.
Kokinda, 497 U. S. 720, 737 (1990)
(KENNEDY, J., concurring in judgment). The extent of public
entitlement to participate in those means of communication may be
changed as technologies change; and in expanding those entitlements
the Government has no greater right to discriminate on suspect
grounds than it does when it effects a ban on speech against the
backdrop of the entitlements to which we have been more accustomed.
It contravenes the First Amendment to give Government a general
license to single out some categories of speech for lesser
protection so long as it stops short of viewpoint
discrimination.
D
The Government advances a different argument for not applying
strict scrutiny in these cases. The nature of access channels to
one side, it argues the nature of the speech in question-indecent
broadcast (or cablecast)-is subject to the lower standard of review
it contends was applied in
FCC v.
Pacifica
Foundation, 438
U. S. 726, 748 (1978) (upholding an FCC order declaring the
radio broadcast of indecent speech during daytime hours to be
sanctionable).
Pacifica did not purport, however, to apply a special
standard for indecent broadcasting. Emphasizing the narrowness of
its holding, the Court in
Pacifica conducted a
contextspecific analysis of the FCC's restriction on indecent
programming during daytime hours. See
id., at 750. See also
Sable Communications, 492 U. S., at 127-128 (underscoring
the narrowness of
Pacifica). It relied on the general rule
that "broadcasting ... has received the most limited First
Amendment protection." 438 U. S., at 748. We already have rejected
the application of this lower broadcast standard of review to
infringements on the liberties of cable operators, even though they
control an important communica-
804
Opinion of KENNEDY, J.
tions medium.
Turner Broadcasting, 512 U. S., at 637-641.
There is even less cause for a lower standard here.
Pacifica did identify two important considerations
relevant to the broadcast of objectionable material. First,
indecent broadcasting "confronts the citizen, not only in public,
but also in the privacy of the home, where the individual's right
to be left alone plainly outweighs the First Amendment rights of an
intruder." 438 U. S., at 748. Second, "broadcasting is uniquely
accessible to children, even those too young to read."
Id.,
at 749.
Pacifica teaches that access channels, even if
analogous to ordinary public fora from the standpoint of the
programmer, must also be considered from the standpoint of the
viewer. An access channel is not a forum confined to a discrete
public space; it can bring indecent expression into the home of
every cable subscriber, where children spend astounding amounts of
time watching television, cf.
ante, at 744-745 (citing
studies). Though in
Cohen we explained that people in public
areas may have to avert their eyes from messages that offend them,
403 U. S., at 21, we further acknowledged that "government may
properly act in many situations to prohibit intrusion into the
privacy of the home of unwelcome views and ideas which cannot be
totally banned from the public dialogue,"
ibid. See
Hess v.
Indiana, 414 U. S. 105, 108 (1973)
(per curiam); Rowan v.
Post Office Dept., 397 U. S. 728, 736-738
(1970). This is more true when the interests of children are at
stake. See
id., at 738 ("[T]he householder [should not] have
to risk that offensive material come into the hands of his children
before it can be stopped").
These concerns are weighty and will be relevant to whether the
law passes strict scrutiny. They do not justify, however, a blanket
rule of lesser protection for indecent speech. Other than the few
categories of expression that can be proscribed, see
R. A.
V:, 505 U. S., at 382-390, we have been reluctant to mark off new
categories of speech for diminished constitutional protection. Our
hesitancy reflects
805
skepticism about the possibility of courts drawing principled
distinctions to use in judging governmental restrictions on speech
and ideas,
Cohen, 403 U. S., at 25, a concern heightened
here by the inextricability of indecency from expression. "[WJe
cannot indulge the facile assumption that one can forbid particular
words without also running a substantial risk of suppressing ideas
in the process."
Id., at 26. The same is true of forbidding
programs indecent in some respect. In artistic or political
settings, indecency may have strong communicative content,
protesting conventional norms or giving an edge to a work by
conveying "otherwise inexpressible emotions."
Ibid. In
scientific programs, the more graphic the depiction (even if to the
point of offensiveness), the more accurate and comprehensive the
portrayal of the truth may be. Indecency often is inseparable from
the ideas and viewpoints conveyed, or separable only with loss of
truth or expressive power. Under our traditional First Amendment
jurisprudence, factors perhaps justifying some restriction on
indecent cable programming may all be taken into account without
derogating this category of protected speech as marginal.
IV
At a minimum, the proper standard for reviewing §§ 10(a) and (c)
is strict scrutiny. The plurality gives no reason why it should be
otherwise. I would hold these enactments unconstitutional because
they are not narrowly tailored to serve a compelling interest.
The Government has no compelling interest in restoring a cable
operator's First Amendment right of editorial discretion. As to §
10(c), Congress has no interest at all, since under most franchises
operators had no rights of editorial discretion over PEG access
channels in the first place. As to § 10(a), any governmental
interest in restoring operator discretion over indecent programming
on leased access channels is too minimal to justify the law. First,
the transmission of indecent programming over leased access
channels
806
Opinion of KENNEDY, J.
is not forced speech of the operator.
Turner Broadcasting,
supra, at 655-656;
PruneYard, 447 U. S., at 87. Second,
the discretion conferred by the law is slight. The operator is not
authorized to place programs of its own liking on the leased access
channels, nor to remove other speech (racist or violent, for
example) that might be offensive to it or to viewers. The operator
is just given a veto over the one kind of lawful speech Congress
disdains.
Congress does have, however, a compelling interest in protecting
children from indecent speech.
Sable Communications, 492 U.
S., at 126;
Ginsberg v.
New York, 390 U. S. 629, 639-640
(1968). See also
Pacifica, 438 U. S., at 749-750 (same). So
long as society gives proper respect to parental choices, it may,
under an appropriate standard, intervene to spare children exposure
to material not suitable for minors. This interest is substantial
enough to justify some regulation of indecent speech even under, I
will assume, the indecency standard used here.
Sections 10(a) and (c) nonetheless are not narrowly tailored to
protect children from indecent programs on access channels. First,
to the extent some operators may allow indecent programming,
children in localities those operators serve will be left
unprotected. Partial service of a compelling interest is not narrow
tailoring.
FCC v.
League of Women Voters of Cal.,
468 U. S. 364,
396 (1984) (asserted interest in keeping noncommercial stations
free from controversial or partisan opinions not served by ban on
station editorials, if such opinions could be aired through other
programming);
Florida Star v.
B. J. F.,
491 U. S. 524,
540-541 (1989) (selective ban on publication of rape victim's name
in some media but not others not narrowly tailored). Cf.
Bolger v.
Youngs Drug Products Corp., 463 U. S. 60, 73 (1983)
(restriction that "provides only the most limited incremental
support for the interest asserted" cannot pass muster under
commercial-speech standards). Put another way, the
807
interest in protecting children from indecency only at the
caprice of the cable operator is not compelling. Perhaps Congress
drafted the law this way to avoid the clear constitutional
difficulties of banning indecent speech from access channels, but
the First Amendment does not permit this sort of ill fit between a
law restricting speech and the interest it is said to serve.
Second, to the extent cable operators prohibit indecent
programming on access channels, not only children but adults will
be deprived of it. The Government may not "reduce the adult
population ... to [viewing] only what is fit for children."
Butler v.
Michigan, 352 U. S. 380, 383
(1957). It matters not that indecent programming might be available
on the operator's other channels. The Government has no legitimate
interest in making access channels pristine. A block-and-segregate
requirement similar to § 10(b), but without its constitutional
infirmity of requiring persons to place themselves on a list to
receive programming, see
ante, at 756-757, protects children
with far less intrusion on the liberties of programmers and adult
viewers than allowing cable operators to ban indecent programming
from access channels altogether. When applying strict scrutiny, we
will not assume plausible alternatives will fail to protect
compelling interests; there must be some basis in the record, in
legislative findings or otherwise, establishing the law enacted as
the least restrictive means.
Sable Communications, supra, at
128-130. Cf.
Turner Broadcasting, 512 U. S., at 664-668.
There is none here.
Sections 10(a) and (c) present a classic case of discrimination
against speech based on its content. There are legitimate reasons
why the Government might wish to regulate or even restrict the
speech at issue here, but §§ 10(a) and (c) are not drawn to address
those reasons with the precision the First Amendment requires.
808
Opinion of KENNEDY, J.
v
Not only does the plurality fail to apply strict scrutiny, but
its reasoning is unpersuasive on its own terms.
The plurality declares § 10(c) unconstitutional because it
interferes with local supervisory systems that "can set programming
policy and approve or disapprove particular programming services."
Ante, at 762. Replacing these local schemes with a cable
operator veto would, in the plurality's view, "greatly increase the
risk that certain categories of programming (say, borderline
offensive programs) will not appear,"
ante, at 766. Although
the plurality terms these local schemes "public/nonprofit
programming control systems,"
ante, at 763, it does not
contend (nor does the record suggest) that any local board or
access center has the authority to exclude indecent programming, or
to do anything that would cast doubt on the status of public access
channels as public fora. Cf. Agosta 88 (New York state law forbids
editorial control over public access programs by either the cable
operator or the municipality); Comments of Hillsborough County
Board of County Commissioners 2, FCC Record (explaining county's
inability to exclude indecent programming). Indeed, "[m]ost access
centers surveyed do not pre screen at all, except, as in [two named
localities], a high speed run-through for technical quality." P.
Aufderheide, Public Access Cable Programming, Controversial Speech,
and Free Expression (1992), reprinted in App. 61, 68. As the
plurality acknowledges, the record indicates no response to
indecent programming by local access centers (whether they pre
screen or not) other than "requiring indemnification by
programmers, certification of compliance with local standards, time
segregation, [and] adult content advisories,"
ante, at 762.
Those are measures that, if challenged, would likely survive strict
scrutiny as narrowly tailored to safeguard children. If those
measures, in the words of the plurality, "normally avoid, minimize,
or eliminate any child-related
809
problems concerning 'patently offensive' programming" on public
access channels,
ante, at 763-764, one is left to wonder why
the cable operator veto over leased access programming authorized
in § 10(a) is constitutional even under the plurality's First
Amendment analysis. Although I concur in its judgment that § 10(c)
is invalid, I cannot agree with the plurality's reasoning.
In regard to § 10(a), the plurality's analysis there undermines
its claims of faithfulness to our First Amendment jurisprudence and
close attention to context.
First, the plurality places some weight on there being "nothing
to stop 'adults who feel the need' from finding [indecent]
programming elsewhere, say, on tape or in theaters," or on
competitive services like direct broadcast television,
ante,
at 745. The availability of alternative channels of communication
may be relevant when we are assessing contentneutral time, place,
and manner restrictions,
Ward v.
Rock Against Racism,
491 U. S. 781,
791, 802 (1989), but the fact that speech can occur elsewhere
cannot justify a contentbased restriction,
Southeastern
Promotions, 420 U. S., at
556; Schneider v.
State
(Town of Irvington), 308 U. S. 147, 163
(1939).
Second, the plurality suggests the permissive nature of § 10(a)
at least does not create the same risk of exclusion as a total ban
on indecency.
Ante, at 745-746. This states the obvious, but
the possibility the Government could have imposed more draconian
limitations on speech never has justified a lesser abridgment.
Indeed, such an argument almost always is available; few of our
First Amendment cases involve outright bans on speech. See,
e.
g., Forsyth County v.
Nationalist Movement, 505 U. S. 123, 130-137
(1992) (broad discretion of county administrator to award parade
permits and to adjust permit fee according to content of speech
violates First Amendment);
Bantam Books, Inc. v.
Sullivan, 372
U. S. 58 (1963) (informal threats to recommend criminal
prosecutions and other pressure tactics by state moral-
810
Opinion of KENNEDY, J.
ity commission against book publishers violate the First
Amendment).
Third, based on its own factual speculations, the plurality
discounts the risks created by the law that operators will not run
indecent programming on access channels. The plurality takes "a
glance at the programming that cable operators allow on their own
(nonaccess) channels," and, espying some indecent programming
there, supposes some cable operators may be willing to allow
similar programs on leased access channels.
Ante, at 746.
This sort of surmise, giving the Government the benefit of the
doubt when it restricts speech, is an unusual approach to the First
Amendment, to put it mildly. Worse, it ignores evidence of industry
structure that should cast doubt on the plurality's sanguine view
of the probable fate of programming considered "indecent" under §
10(a). The plurality fails to note that, aside from the indecency
provisions of § 10 tacked on in a Senate floor amendment, the 1992
Act strengthened the regulation of leased access channels because
it was feared cable operators would exercise their substantial
market power to exclude disfavored programmers. The congressional
findings in the statute and the conclusions of the Senate Committee
on Commerce, Science, and Transportation after more than two years
of hearings on the cable market, see S. Rep. No. 10292, pp. 3-4
(1991), are instructive. Leased access channels had been underused
since their inception in 1984, the Senate Committee determined.
Id., at 30. Though it recognized the adverse economics of
leased access for programmers may have been one reason for the
underutilization, the Committee found the obstinacy of cable
operators and their control over prices, terms, and conditions also
were to blame.
Id., at 31.
"The cable operator is almost certain to have interests that
clash with that of the programmer seeking to use leased access
channels. If their interests were similar, the operator would have
been more than willing to carry
811
the programmer on regular cable channels. The operator thus has
already decided for any number of reasons not to carry the
programmer. For example, the operator may believe that the
programmer might compete with programming that the [operator] owns
or controls. To permit the operator to establish the leased access
rate thus makes little sense." Ibid.
Perhaps some operators will choose to show the indecent
programming they now may banish if they can command a better price
than other access programmers are willing to pay. In the main,
however, leased access programs are the ones the cable operator,
for competitive reasons or otherwise, has no interest in showing.
And because the cable operator may put to his own commercial use
any leased access capacity not taken by unaffiliated programmers,
47 U. S. C. § 532(b)(4), operators have little incentive to allow
indecent programming if they have excess capacity on leased access
channels.
There is even less reason to think cable operators will choose
to show indecent programs on public access channels. The operator
is not paid, or paid much, for transmitting programs on these
channels; public access programs may compete with the operator's
own programs; the operator will wish to avoid unwanted controversy;
and here, as with leased access channels, the operator may reclaim
unused PEG capacity for its own paid use, 47 U. S. C. §
531(d)(1).
In the 1992 Act, Congress recognized cable operators might want
to exclude unaffiliated or otherwise disfavored programmers from
their channels, but it granted operators discretion to do so in
regard to but a single category of speech. The obvious consequence
invited by the discretion is exclusion. I am not sure why the
plurality would suppose otherwise, or contend the practical
consequences of § 10(a) would be no worse for programmers than
those flowing from the sort of time-segregation requirement
approved in
Pacifica. See
ante, at 746-747.
Despite its claim of making
812
Opinion of THOMAS, J.
"a more contextual assessment" of these cases,
ante, at
748, the plurality ignores a key difference of these cases from
Pacifica. There, the broadcaster wanted to air the speech in
question; here, the cable operator does not. So the safe harbor of
late-night programming permitted by the FCC in
Pacifica
would likely promote speech, whereas suppression will follow from §
lO(a).
VI
In agreement with the plurality's analysis of § lO(b) of the
Act, insofar as it applies strict scrutiny, I join Part III of its
opinion. Its position there, however, cannot be reconciled with
upholding § lO(a). In the plurality's view, § lO(b), which standing
alone would guarantee an indecent programmer some access to a cable
audience, violates the First Amendment, but § lO(a), which
authorizes exclusion of indecent programming from access channels
altogether, does not. There is little to commend this logic or
result. I dissent from the judgment of the Court insofar as it
upholds the constitutionality of § lO(a).
JUSTICE THOMAS, joined by THE CHIEF JUSTICE and JUSTICE SCALIA,
concurring in the judgment in part and dissenting in part.
I agree with the principal opinion's conclusion that § lO(a) is
constitutionally permissible, but I disagree with its conclusion
that §§ lO(b) and (c) violate the First Amendment. For many years,
we have failed to articulate how, and to what extent, the First
Amendment protects cable operators, programmers, and viewers from
state and federal regulation. I think it is time we did so, and I
cannot go along with JUSTICE BREYER'S assiduous attempts to avoid
addressing that issue openly.
I
The text of the First Amendment makes no distinctions among
print, broadcast, and cable media, but we have done so. In
Red
Lion Broadcasting Co. v.
FCC, 395 U. S. 367
813
(1969), we held that, in light of the scarcity of broadcasting
frequencies, the Government may require a broadcast licensee "to
share his frequency with others and to conduct himself as a proxy
or fiduciary with obligations to present those views and voices
which are representative of his community and which would
otherwise, by necessity, be barred from the airwaves."
Id.,
at 389. We thus endowed the public with a right of access "to
social, political, esthetic, moral, and other ideas and
experiences."
Id., at 390. That public right left
broadcasters with substantial, but not complete, First Amendment
protection of their editorial discretion. See,
e. g., Columbia
Broadcasting System, Inc. v.
Democratic National
Committee, 412 U.
S. 94, 117-118 (1973) ("A broadcast licensee has a large
measure of journalistic freedom but not as large as that exercised
by a newspaper").
In contrast, we have not permitted that level of government
interference in the context of the print media. In
Miami Herald
Publishing Co. v.
Tornillo, 418 U. S. 241 (1974), for
instance, we invalidated a Florida statute that required newspapers
to allow, free of charge, a right of reply to political candidates
whose personal or professional character the paper assailed. We
rejected the claim that the statute was constitutional because it
fostered speech rather than restricted it, as well as a related
claim that the newspaper could permissibly be made to serve as a
public forum.
Id., at 256-258. We also flatly rejected the
argument that the newspaper's alleged media monopoly could justify
forcing the paper to speak in contravention of its own editorial
discretion.
Id., at 256.
Our First Amendment distinctions between media, dubious from
their infancy,l placed cable in a doctrinal wasteland in which
regulators and cable operators alike could not be sure whether
cable was entitled to the substantial First Amendment protections
afforded the print media or was
1 See Turner Broadcasting System, Inc. v. FCC,
512 U. S. 622, 638,
and
814
Opinion of THOMAS, J.
subject to the more onerous obligations shouldered by the
broadcast media. See
Los Angeles v.
Preferred
Communications, Inc., 476 U. S. 488, 496 (1986)
(Blackmun, J., concurring) ("In assessing First Amendment claims
concerning cable access, the Court must determine whether the
characteristics of cable television make it sufficiently analogous
to another medium to warrant application of an already existing
standard or whether those characteristics require a new analysis").
Over time, however, we have drawn closer to recognizing that cable
operators should enjoy the same First Amendment rights as the
nonbroadcast media.
Our first ventures into the world of cable regulation involved
no claims arising under the First Amendment, and we addressed only
the regulatory authority of the Federal Communications Commission
(FCC) over cable operators.2 Only in later cases did we begin to
address the level of First Amendment protection applicable to cable
operators. In
Preferred Communications, for instance, when a
cable operator challenged the city of Los Angeles' auction process
for a single cable franchise, we held that the cable operator had
stated a First Amendment claim upon which relief could be granted.
Id., at 493. We noted that cable operators communicate
various topics "through original programming or by exercising
editorial discretion over which stations or programs to include in
[their] repertoire."
Id., at 494. Cf.
FCC v.
Midwest Video Corp., 440 U. S. 689, 707 (1979)
(Midwest Video II) ("Cable operators now share with
broadcasters a significant amount of editorial discretion regarding
what their programming will include"). But we then lik-
2 See
United States v.
Southwestern Cable Co.,
392 U. S. 157
(1968);
United States v.
Midwest Video Corp.,
406 U. S. 649
(1972)
(Midwest Video I). Our decisions in
Southwestern
Cable and
Midwest Video I were purely regulatory and
gave no indication whether, or to what extent, cable operators were
protected by the First Amendment.
815
ened the operators' First Amendment interests to those of
broadcasters subject to
Red Lion's right of access
requirement. 476 U. S., at 494-495.
Five years later, in
Leathers v.
Medlock, 499 U. S. 439 (1991), we
dropped any reference to the relaxed scrutiny permitted by
Red
Lion. Arkansas had subjected cable operators to the State's
general sales tax, while continuing to exempt newspapers,
magazines, and scrambled satellite broadcast television. Cable
operators, among others, challenged the tax on First Amendment
grounds, arguing that the State could not discriminatorily apply
the tax to some, but not all, members of the press. Though we
ultimately upheld the tax scheme because it was not content based,
we agreed with the operators that they enjoyed the protection of
the First Amendment. We found that cable operators engage in speech
by providing news, information, and entertainment to their
subscribers and that they are "part of the 'press.'" 499 U. S., at
444.
Two Terms ago, in Turner Broadcasting System, Inc. v.
FCC, 512 U.
S. 622 (1994), we stated expressly what we had implied in
Leathers: The
Red Lion standard does not apply to
cable television. 512 U. S., at 637 ("[T]he rationale for applying
a less rigorous standard of First Amendment scrutiny to broadcast
regulation ... does not apply in the context of cable regulation");
id., at 639 ("[A]pplication of the more relaxed standard of
scrutiny adopted in
Red Lion and the other broadcast cases
is inapt when determining the First Amendment validity of cable
regulation"). While Members of the Court disagreed about whether
the must-carry rules imposed by Congress were content based, and
therefore subject to strict scrutiny, there was agreement that
cable operators are generally entitled to much the same First
Amendment protection as the print media. But see
id., at 670
(STEVENS, J., concurring in part and concurring in judgment)
("Cable operators' control of essential facilities provides a
816
Opinion of THOMAS, J.
basis for intrusive regulation that would be inappropriate and
perhaps impermissible for other communicative media").
In
Turner, by adopting much of the print paradigm, and by
rejecting
Red Lion, we adopted with it a considerable body
of precedent that governs the respective First Amendment rights of
competing speakers. In
Red Lion, we had legitimized
consideration of the public interest and emphasized the rights of
viewers, at least in the abstract. Under that view, "[i]t is the
right of the viewers and listeners, not the right of the
broadcasters, which is paramount." 395 U. S., at 390. After
Turner, however, that view can no longer be given any
credence in the cable context. It is the operator's right that is
preeminent. If
Tornillo and
Pacific Gas &
Elec. Co. v.
Public Util. Comm'n of Cal., 475 U. S. 1 (1986), are
applicable, and I think they are, see
Turner, supra, at
681-682 (O'CONNOR, J., concurring in part and dissenting in part),
then, when there is a conflict, a programmer's asserted right to
transmit over an operator's cable system must give way to the
operator's editorial discretion. Drawing an analogy to the print
media, for example, the author of a book is protected in writing
the book, but has no right to have the book sold in a particular
bookstore without the store owner's consent. Nor can government
force the editor of a collection of essays to print other essays on
the same subject.
The Court in
Turner found that the FCC's must-carry rules
implicated the First Amendment rights of both cable operators and
cable programmers. The rules interfered with the operators'
editorial discretion by forcing them to carry broadcast programming
that they might not otherwise carry, and they interfered with the
programmers' ability to compete for space on the operators'
channels. 512 U. S., at
636-637; id., at 675-676 (O'CONNOR,
J., concurring in part and dissenting in part). We implicitly
recognized in
Turner that the programmer's right to compete
for channel space
817
is derivative of, and subordinate to, the operator's editorial
discretion. Like a freelance writer seeking a paper in which to
publish newspaper editorials, a programmer is protected in
searching for an outlet for cable programming, but has no
freestanding First Amendment right to have that programming
transmitted. Cf.
Miami Herald Publishing Co. v.
Tornillo, 418 U. S., at 256-258. Likewise, the rights of
would-be viewers are derivative of the speech rights of operators
and programmers. Cf.
Virginia Bd. of Pharmacy v.
Virginia
Citizens Consumer Council, Inc., 425 U. S. 748, 756-757
(1976) ("Freedom of speech presupposes a willing speaker. But where
a speaker exists, ... the protection afforded is to the
communication, to its source and to its recipients both"). Viewers
have a general right to see what a willing operator transmits, but,
under
Tornillo and
Pacific Gas, they certainly have
no right to force an unwilling operator to speak.
By recognizing the general primacy of the cable operator's
editorial rights over the rights of programmers and viewers,
Turner raises serious questions about the merits of
petitioners' claims. None of the petitioners in these cases are
cable operators; they are all cable viewers or access programmers
or their representative organizations. See Brief for Petitioners in
No. 95-124, pp. 5-6; Brief for Petitioners New York Citizens
Committee for Responsible Media et al. in No. 95-227, p. 3; Brief
for Petitioners Alliance for Community Media et al. in No. 95-227,
p. 3. It is not intuitively obvious that the First Amendment
protects the interests petitioners assert, and neither petitioners
nor the plurality have adequately explained the source or
justification of those asserted rights.
JUSTICE BREYER'S detailed explanation of why he believes it is
"unwise and unnecessary,"
ante, at 742, to choose a standard
against which to measure petitioners' First Amendment claims
largely disregards our recent attempt in
Turner
818
Opinion of THOMAS, J.
to define that standard.3 His attempt to distinguish
Turner on the ground that it did not involve "the effects of
television viewing on children,"
ante, at 748, is
meaningless because that factual distinction has no bearing on the
existence and ordering of the free speech rights asserted in these
cases.
In the process of deciding not to decide on a governing
standard, JUSTICE BREYER purports to discover in our cases an
expansive, general principle permitting government to "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."
Ante, at 741. This heretofore unknown standard is facially
subjective and openly invites balancing of asserted speech
interests to a degree not ordinarily permitted. It is true that the
standard I endorse lacks the "flexibility" inherent in the
plurality's balancing approach,
ante, at 740, but that
relative rigidity is required by our precedents and is not of my
own making.
In any event, even if the plurality's balancing test were an
appropriate standard, it could only be applied to protect speech
interests that, under the circumstances, are themselves protected
by the First Amendment. But, by shifting the focus to the balancing
of "complex" interests,
ante, at 743, JUSTICE BREYER never
explains whether (and if so, how) a programmer's ordinarily
unprotected interest in affirmative transmission of its programming
acquires constitutional significance on leased and public access
channels. See
3 Curiously, the plurality relies on "changes taking place in
the law, the technology, and the industrial structure related to
telecommunications,"
ante, at 742, to justify its avoidance
of traditional First Amendment standards. If anything, as the
plurality recognizes,
ante, at 745, those recent
developments-which include the growth of satellite broadcast
programming and the coming influx of video dialtone
services-suggest that local cable operators have little or no
monopoly power and create no programming bottleneck problems, thus
effectively negating the primary justifications for treating cable
operators differently from other First Amendment speakers.
819
ibid. ("interests of programmers in maintaining access
channels");
ibid. ("interests served by the access
requirements"). It is that question, left unanswered by the
plurality, to which I now turn.
II A
In 1984, Congress enacted 47 U. S. C. § 532(b), which generally
requires cable operators to reserve approximately 10 to 15 percent
of their available channels for commercial lease to "unaffiliated
persons." Operators were prohibited from "exercis[ing] any
editorial control" over these leased access channels. § 532(c)(2).
In 1992, Congress withdrew part of its prohibition on the exercise
of the cable operators' editorial control and essentially permitted
operators to censor privately programming that the "operator
reasonably believes describes or depicts sexual or excretory
activities or organs in a patently offensive manner." § 532(h).
Since 1984, federal law has also permitted local franchise
authorities to require cable operators to set aside certain
channels for "public, educational, or governmental use" (PEG
channels),4 § 531(a), but unlike the leased access provisions, has
not directly required operators to do so. As with leased access,
Congress generally prohibited cable operators from exercising "any
editorial control" over public access channels, but provided that
operators could prohibit the transmission of obscene programming. §
531(e); see § 544(d). Section 10(c) of the 1992 Act broadened the
operators' editorial control and instructed the FCC to promulgate
regulations enabling a cable operator to ban from its public access
channels "any programming which contains obscene material, sexually
explicit conduct, or material soliciting or promoting unlawful
conduct." Note following 47 U. S. C. §531. The
4 Because indecent programming on PEG channels appears primarily
on public access channels, I will generally refer to PEG access as
public access.
820
Opinion of THOMAS, J.
FCC subsequently promulgated regulations in its Second 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, 8 FCC Rcd 2638 (1993) (Second Report and
Order). The FCC interpreted Congress' reference to "sexually
explicit conduct" to mean that the programming must be indecent,
and its regulations therefore permit cable operators to ban
indecent programming from their public access channels.
Id.,
at 2640.
As I read these provisions, they provide leased and public
access programmers with an expansive and federally enforced
statutory right to transmit virtually any programming over access
channels, limited only by the bounds of decency. It is no doubt
true that once programmers have been given, rightly or wrongly, the
ability to speak on access channels, the First Amendment continues
to protect programmers from certain Government intrusions.
Certainly, under our current jurisprudence, Congress could not
impose a total ban on the transmission of indecent programming. See
Sable Communications of Cal., Inc. v.
FCC, 492 U. S. 115, 127 (1989)
(striking down total ban on indecent dial-aporn messages). At the
same time, however, the Court has not recognized, as entitled to
full constitutional protection, statutorily created speech rights
that directly conflict with the constitutionally protected private
speech rights of another person or entity.5 We have not found a
First Amendment violation in statutory schemes that substantially
expand the speech opportunities of the person or entity challenging
the scheme.
There is no getting around the fact that leased and public
access are a type of forced speech. Though the constitutionality of
leased and public access channels is not directly at
5Even in
PruneYard Shopping Center v.
Robins,
447 U. S. 74,
87-88 (1980), for instance, we permitted California's compelled
access rule only because it did not burden or conflict with the
mall owner's own speech.
821
issue in these cases,6 the position adopted by the Court in
Turner ineluctably leads to the conclusion that the federal
access requirements are subject to some form of heightened
scrutiny. See
Turner, 512 U. S., at 661-662 (citing
Ward v.
Rock Against Racism, 491 U. S. 781 (1989);
United States v.
O'Brien, 391 U. S. 367 (1968)).
Under that view, contentneutral governmental impositions on an
operator's editorial discretion may be sustained only if they
further an important governmental interest unrelated to the
suppression of free speech and are no greater than is essential to
further the asserted interest. See
id., at 377. Of course,
the analysis I joined in
Turner would have required strict
scrutiny. 512 U. S., at 680-682 (O'CONNOR, J., concurring in part
and dissenting in part).
Petitioners must concede that cable access is not a
constitutionally required entitlement and that the right they claim
to leased and public access has, by definition, been governmentally
created at the expense of cable operators' editorial
6 Following
Turner, some commentators have questioned the
constitutionality of leased and public access. See,
e.
g., J. Goodale, All About Cable § 6.04[5], pp. 6-38.6 to
6-38.7 (1996) ("In the wake of the Supreme Court's decision in the
Turner Broadcasting case, the constitutionality of both PEG
access and leased access requirements would seem open to searching
reexamination .... To the extent that an access requirement ... is
considered to be a content-based restriction on the speech of a
cable system operator, it seems clear, after
Turner
Broadcasting, that such a requirement would be found to violate
the operator's First Amendment rights" (footnotes omitted));
Ugland, Cable Television, New Technologies and the First Amendment
After Turner Broadcasting System, Inc. v. F. C.
C., 60 Mo.
L. Rev. 799, 837 (1995) ("PEG requirements are contentbased on
their face because they force cable system operators to carry
certain
types of programming" (emphasis in original));
Perritt, Access to the National Information Infrastructure, 30 Wake
Forest L. Rev. 51, 66 (1995) (leased access and public access
requirements "were called into question in
Turner").
Moreover, as JUSTICE O'CONNOR noted in
Turner, Congress'
imposition of common-carrier-like obligations on cable operators
may raise Takings Clause questions. 512 U. S., at 684 (opinion
concurring in part and dissenting in part). Such questions are not
at issue here.
822
Opinion of THOMAS, J.
discretion. Just because the Court has apparently accepted, for
now, the proposition that the Constitution permits some degree of
forced speech in the cable context does not mean that the
beneficiaries of a Government-imposed forced speech program enjoy
additional First Amendment protections beyond those normally
afforded to purely private speakers.
We have said that "[i]n the realm of private speech or
expression, government regulation may not favor one speaker over
another,"
Rosenberger v.
Rector and Visitors of Univ.
of Va.,
515 U. S.
819, 828 (1995), but this principle hardly supports
petitioners' claims, for, if they do anything, the leased and
public access requirements favor access programmers over cable
operators. I do not see §§ 10(a) and (c) as independent
restrictions on programmers, but as intricate parts of the leased
and public access restrictions imposed by Congress (and state and
local governments) on cable operators. The question petitioners
pose is whether §§ 10(a) and (c) are improper restrictions on their
free speech rights, but
Turner strongly suggests that the
proper question is whether the leased and public access
requirements (with §§ 10(a) and (c)) are improper restrictions on
the
operators' free speech rights. In my view, the
constitutional presumption properly runs in favor of the operators'
editorial discretion, and that discretion may not be burdened
without a compelling reason for doing so. Petitioners' view that
the constitutional presumption favors their asserted right to speak
on access channels is directly contrary to
Turner and our
established precedents.
It is one thing to compel an operator to carry leased and public
access speech, in apparent violation of
Tornillo, but it is
another thing altogether to say that the First Amendment forbids
Congress to give back part of the operators' editorial discretion,
which all recognize as fundamentally protected, in favor of a
broader access right. It is no answer to say that leased and public
access are content neutral and that
823
§§ 10(a) and (c) are not, for that does not change the
fundamental fact, which petitioners never address, that it is the
operators' journalistic freedom that is infringed, whether the
challenged restrictions be content neutral or content based.
Because the access provisions are part of a scheme that
restricts the free speech rights of cable operators and expands the
speaking opportunities of access programmers, who have no
underlying constitutional right to speak through the cable medium,
I do not believe that access programmers can challenge the scheme,
or a particular part of it, as an abridgment of their "freedom of
speech." Outside the public forum doctrine, discussed
infra,
at 826-831, Government intervention that grants access programmers
an opportunity to speak that they would not otherwise enjoyand
which does not directly limit programmers' underlying speech
rights-cannot be an abridgment of the same programmers' First
Amendment rights, even if the new speaking opportunity is content
based.
The permissive nature of §§ 10(a) and (c) is important in this
regard. If Congress had forbidden cable operators to carry indecent
programming on leased and public access channels, that law would
have burdened the programmer's right, recognized in
Turner,
supra, at 645, to compete for space on an operator's system.
The Court would undoubtedly strictly scrutinize such a law. See
Sable, 492 U. S., at 126. But §§ 10(a) and (c) do not burden
a programmer's right to seek access for its indecent programming on
an operator's system. Rather, they merely restore part of the
editorial discretion an operator would have absent Government
regulation without burdening the programmer's underlying speech
rights.7
7 The plurality, in asserting that § 10(c) "does not restore to
cable operators editorial rights that they once had,"
ante,
at 761, mistakes inability to exercise a right for absence of the
right altogether. That cable operators "have not historically
exercised editorial control" over public access
824
Opinion of THOMAS, J.
The First Amendment challenge, if one is to be made, must come
from the party whose constitutionally protected freedom of speech
has been burdened. Viewing the federal access requirements as a
whole, it is the cable operator, not the access programmer,s whose
speech rights have been infringed. Consequently, it is the
operator, and not the programmer, whose speech has arguably been
infringed by these provisions. If Congress passed a law forcing
bookstores to sell all books published on the subject of
congressional politics, we would undoubtedly entertain a claim by
bookstores that this law violated the First Amendment principles
established in
Tornillo and
Pacific Gas. But I doubt
that we would similarly find merit in a claim by publishers of
gardening books that the law violated their First Amendment rights.
If that is so, then petitioners in these cases cannot reasonably
assert that the Court should strictly scrutinize the provisions at
issue in a way that maximizes their ability to speak over leased
and public access channels and, by necessity, minimizes the
operators' discretion.
B
It makes no difference that the leased access restrictions may
take the form of common carrier obligations. See
Midwest
Video II, 440 U. S., at 701; see also Brief for Federal
Respondents 23. But see 47 U. S. C. § 541(c) ("Any cable system
shall not be subject to regulation as a common carrier or utility
by reason of providing any cable service"). That the leased access
provisions may be described in common carrier terms does not
demonstrate that access programmers
channels,
ibid., does not diminish the underlying right
to do so, even if the operator's forbearance is viewed as a
contractual
quid pro quo for the local franchise.
S
Turner recognized that the must-carry rules burden
programmers who must compete for space on fewer channels. 512 U.
S., at 636-637. Leased access requirements may also similarly
burden programmers who compete for space on nonaccess channels.
825
have obtained a First Amendment right to transmit programming
over leased access channels. Labeling leased access a common
carrier scheme has no real First Amendment consequences. It simply
does not follow from common carrier status that cable operators may
not, with Congress' blessing, decline to carry indecent speech on
their leased access channels. Common carriers are private entities
and may, consistent with the First Amendment, exercise editorial
discretion in the absence of a specific statutory prohibition.
Concurring in
Sable, JUSTICE SCALIA explained: "I note that
while we hold the Constitution prevents Congress from banning
indecent speech in this fashion, we do not hold that the
Constitution requires public utilities to carry it." 492 U. S., at
133. See also
Information Providers' Coalition for Defense of
First Amendment v.
FCC, 928 F.2d
866, 877 (CA9 1991) ("[A] carrier is free under the
Constitution to terminate service to dial-a-porn operators
altogether");
Carlin Communications, Inc. v.
Mountain
States Telephone &
Telegraph Co., 827 F.2d
1291, 1297 (CA9 1987) (same), cert. denied, 485 U. S. 1029
(1988);
Carlin Communication, Inc. v.
Southern Bell
Telephone &
Telegraph Co., 802
F.2d 1352, 1357 (CAll 1986) (same).
Nothing about common carrier status
per se
constitutionalizes the asserted interests of petitioners in these
cases, and JUSTICE KENNEDY provides no authority for his assertion
that common carrier regulations "should be reviewed under the same
standard as content-based restrictions on speech in a public
forum."
Ante, at 797. Whether viewed as the creation of a
common carrier scheme or simply as a regulatory restriction on
cable operators' editorial discretion, the net effect is the same:
operators' speech rights are restricted to make room for access
programmers. Consequently, the fact that the leased access
provisions impose a form of common carrier obligation on cable
operators does not alter my view that Congress' leased access
scheme burdens the constitutionally protected speech rights of
cable operators in order
826
Opinion of THOMAS, J.
to expand the speaking opportunities of access programmers, but
does not independently burden the First Amendment rights of
programmers or viewers.
C
Petitioners argue that public access channels are public forums
in which they have First Amendment rights to speak and that § 10(c)
is invalid because it imposes content-based burdens on those
rights. Brief for Petitioners New York Citizens Committee for
Responsible Media et al. in No. 95227, pp. 8-23; Brief for
Petitioners Alliance for Community Media et al. in No. 95-227, pp.
32-35. Though I agree that content-based prohibitions in a public
forum "must be narrowly drawn to effectuate a compelling state
interest,"
Perry Ed. Assn. v.
Perry Local Educators'
Assn., 460 U. S.
37, 46 (1983), I do not agree with petitioners' antecedent
assertion that public access channels are public forums.
We have said that government may designate public property for
use by the public as a place for expressive activity and that, so
designated, that property becomes a public forum.
Id., at
45. Petitioners argue that "[a] local government does exactly that
by requiring as a condition of franchise approval that the cable
operator set aside a public access channel for the free use of the
general public on a first-come, first-served, nondiscriminatory
basis." 9
9 In
Rosenberger v.
Rector and Visitors of Univ. of
Va., 515 U. S.
819, 829-830 (1995), we found the university's student activity
fund, a nontangible channel of communication, to be a limited
public forum, but generally we have been quite reluctant to find
even limited public forums in such channels of communication.
Cornelius v.
NAACP Legal Defense &
Ed. Fund,
Inc., 473 U. S.
788, 804 (1985) (Combined Federal Campaign not a limited public
forum);
Perry Ed. Assn. v.
Perry Local Educators'
Assn., 460 U. S.
37, 47-48 (1983) (school mail facilities not a limited public
forum). In any event, we certainly have never held that public
access channels are a fully designated public forum that entitles
programmers to freedom from content-based distinctions.
827
Brief for Petitioners Alliance for Community Media et al. in No.
95-227, p. 33. I disagree.
Cable systems are not public property.l0 Cable systems are
privately owned and privately managed, and petitioners point to no
case in which we have held that government may designate private
property as a public forum. The public forum doctrine is a rule
governing claims of "a right of access to public property,"
Perry Ed. Assn., supra, at 44, and has never been thought to
extend beyond property generally understood to belong to the
government. See
International Soc. for Krishna Consciousness,
Inc. v.
Lee, 505 U. S. 672, 681 (1992)
(evidence of expressive activity at rail stations, bus stations,
wharves, and Ellis Island was "irrelevant to
public fora
analysis, because sites such as bus and rail terminals
traditionally have had
private ownership" (emphasis in
original)). See also
id., at 678 (public forum is
"government" or "public" property);
Perry Ed. Assn., supra,
at 45 (designated public forum "consists of public property").
Petitioners point to dictum in
Cornelius v.
NAACP
Legal Defense &
Ed. Fund, 473 U. S. 788,801 (1985),
that a public forum may consist of "private property dedicated to
public use," but that statement has no applicability here. That
statement properly refers to the common practice of formally
dedicating land for streets and parks when subdividing real estate
for developments. See 1A C. Antieau & J. Antieau, Antieau's
Local Government Law § 9.05 (1991); llA E. McQuillin, Law of
Municipal Corporations § 33.03 (3d ed. 1991). Such dedications
mayor may not transfer title, but they at least create enforceable
public easements in the dedicated land. 1A Antieau,
supra, §
9.15; llA McQuillin,
supra,
10 See G. Shapiro, P. Kurland, & J. Mercurio, "CableSpeech":
The Case for First Amendment Protection 119 (1983) ("Because cable
systems are operated by private rather than governmental entities,
cable television cannot be characterized as a public forum and,
therefore, rights derived from the public forum doctrine cannot be
asserted by those who wish to express themselves on cable
systems").
828
Opinion of THOMAS, J.
§ 33.68. To the extent that those easements create a property
interest in the underlying land, it is that governmentowned
property interest that may be designated as a public forum.
It may be true, as petitioners argue, that title is not
dispositive of the public forum analysis, but the nature of the
regulatory restrictions placed on cable operators by local
franchising authorities is not consistent with the kinds of
governmental property interests we have said may be formally
dedicated as public forums. Our public forum cases have involved
property in which the government has held at least some formal
easement or other property interest permitting the government to
treat the property as its own in designating the property as a
public forum. See,
e. g., Hague v.
Committee for Industrial Organization, 307 U. S. 496, 515 (1939)
(streets and parks);
Police Dept. of Chicago v.
Mosley, 408 U.
S. 92, 96 (1972) (sidewalks adjoining public school);
Southeastern Promotions, Ltd. v.
Conrad, 420 U. S. 546, 555 (1975)
(theater under long-term lease to city);
Carey v.
Brown, 447 U.
S. 455, 460-462 (1980) (sidewalks in front of private
residence);
Widmar v.
Vincent, 454 U. S. 263, 267-268
(1981) (university facilities that had been opened for student
activities). That is simply not true in these cases. Pursuant to
federal and state law, franchising authorities require cable
operators to create public access channels, but nothing in the
record suggests that local franchising authorities take any formal
easement or other property interest in those channels that would
permit the government to designate that property as a public
forum.ll
11 Petitioners' argument that a property right called "the right
to exclude" has been transferred to the government is not
persuasive. Though it is generally true that, excepting §
W(c), cable operators are forbidden to exercise editorial
discretion over public access channels, that prohibition is not
absolute. Section 531(e) provides that the prohibition on the
exercise of editorial discretion is subject to § 544(d)(1), which
permits operators and franchising authorities to ban obscene or
other constitutionally unprotected speech. Some States, however,
have not permitted exercise of that authority. See,
e.
g., Minn. Stat. § 238.11 (1994) (prohibiting any censor-
829
Similarly, assertion of government control over private property
cannot justify designation of that property as a public forum. We
have expressly stated that neither government ownership nor
government control will guarantee public access to property. See
Cornelius, supra, at 803;
Postal Service v.
Council of Greenburgh Civic Assns., 453 U. S. 114, 129
(1981). Government control over its own property or private
property in which it has taken a cognizable property interest, like
the theater in
Southeastern Promotions, is consistent with
designation of a public forum. But we have never even hinted that
regulatory control, and particularly direct regulatory control over
a private entity's First Amendment speech rights, could justify
creation of a public forum. Properly construed, our cases have
limited the government's ability to declare a public forum to
property the government owns outright, or in which the government
holds a significant property interest consistent with the
communicative purpose of the forum to be designated.
Nor am I convinced that a formal transfer of a property interest
in public access channels would suffice to permit a local
franchising authority to designate those channels as a public
forum. In no other public forum that we have recognized does a
private entity, owner or not, have the obligation not only to
permit another to speak, but to actually help produce and then
transmit the message on that person's behalf. Cable operators
regularly retain some level of managerial and operational control
over their public access channels, subject only to the requirements
of federal, state, and local law and the franchise agreement. In
more traditional public forums, the government shoulders the burden
of administering and enforcing the openness of the expressive
forum, but it is frequently a private citizen, the operator, who
shoulders that burden for public access channels. For instance,
ship of leased or public access programming); N. Y. Pub. Servo
Law § 229 (McKinney Supp. 1996) (same). At any rate, the Court has
never recognized a public forum based on a property interest
"taken" by regulatory restriction.
830
Opinion of THOMAS, J.
it is often the operator who must accept and schedule an access
programmer's request for time on a channel.12 And, in many places,
the operator is actually obligated to provide production facilities
and production assistance to persons seeking to produce access
programming.13 Moreover, unlike a park picketer, an access
programmer cannot transmit its own message. Instead, it is the
operator who must transmit, or "speak," the access programmer's
message. That the speech may be considered the operator's is driven
home by 47 U. S. C. § 559, which authorizes a fine of up to $10,000
and two years' imprisonment for any person who "transmits over any
cable system any matter which is obscene." See also
12 See D. Brenner, M. Price, & M. Meyerson, Cable Television
and Other Nonbroadcast Video § 6.04[7] (1996) (hereinafter
Brenner). Some States and local governments have formed nonprofit
organizations to perform some of these functions. See D. C. Code
Ann. §43-1829(a) (1990 and Supp. 1996) (establishing Public Access
Corporation "for the purpose of facilitating and governing
nondiscriminatory use" of public access channels).
13 See,
e. g., 47 U. S. C. § 541(a)(4)(B)
(authorizing franchise authorities to "require adequate assurance
that the cable operator will provide adequate public, educational,
and governmental access channel capacity, facilities, or financial
support"); Conn. Gen. Stat. § 16-331c (1995) (requiring cable
operators to contribute money or resources to cable advisory
councils that monitor compliance with public access standards); §
16-333(c) (requiring the department of public utility control to
adopt regulations "establishing minimum standards for the equipment
supplied ... for the community access programming"); D. C. Code
Ann. §43-1829.1(c) (1990) ("For public access channel users, the
franchisee shall provide use of the production facilities and
production assistance at an amount set forth in the request for
proposal"); Minn. Stat. § 238.084.3(b) (1994) (requiring cable
operators to "make readily available for public use at least the
minimal equipment necessary for the production of programming and
playback of prerecorded programs"). That these activities are
"partly financed with public funds,"
ante, at 762, does not
diminish the fact that these activities are also "partly financed"
with the operator's money. See Brenner § 6.04[7], at 6-48
("Frequently, access centers receive money and equipment from the
cable operator");
id., § 6.04[3][c], at 6-41 (discussing
cable operator financing of public access channels and questioning
its constitutionality as "forced subsidization of speech").
831
§ 558 (making operators immune for all public access
programming, except that which is obscene).14
Thus, even were I inclined to view public access channels as
public property, which I am not, the numerous additional
obligations imposed on the cable operator in managing and operating
the public access channels convince me that these channels share
few, if any, of the basic characteristics of a public forum. As I
have already indicated, public access requirements, in my view, are
a regulatory restriction on the exercise of cable operators'
editorial discretion, not a transfer of a sufficient property
interest in the channels to support a designation of that property
as a public forum. Public access channels are not public forums,
and, therefore, petitioners' attempt to redistribute cable speech
rights in their favor must fail. For this reason, and the other
reasons articulated earlier, I would sustain both § 10(a) and §
10(c).
III
Most sexually oriented programming appears on premium or
pay-per-view channels that are naturally blocked from nonpaying
customers by market forces, see
In re Implementation of Section
10 of the 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, 1001,
n. 20 (1993) (First Report and Order), and it is only governmental
intervention in the first instance that requires access channels,
on which indecent programming may appear, to be made part of the
basic cable package. Section 10(b) does nothing more than adjust
the nature of Government-imposed leased access requirements
14 Petitioners argue that § 10(d) of the 1992 Act, 47 U. S. C. §
558, which lifts cable operators' immunity for obscene speech,
forces or encourages operators to ban indecent speech. Because
Congress could directly impose an outright ban on obscene
programming, see
Sable Communications of Cal., Inc. v.
FCC, 492 U. S.
115, 124 (1989), petitioners' encouragement argument is
meritless.
832
Opinion of THOMAS, J.
in order to emulate the market forces that keep indecent
programming primarily on premium channels (without permitting the
operator to charge subscribers for that programming).
Unlike §§ 10(a) and (c), § 10(b) clearly implicates petitioners'
free speech rights. Though § 10(b) by no means bans indecent
speech, it clearly places content-based restrictions on the
transmission of private speech by requiring cable operators to
block and segregate indecent programming that the operator has
agreed to carry. Consequently, § 10(b) must be subjected to strict
scrutiny and can be upheld only if it furthers a compelling
governmental interest by the least restrictive means available. See
Sable, 492 U. S., at 126. The parties agree that Congress
has a "compelling interest in protecting the physical and
psychological well-being of minors" and that its interest "extends
to shielding minors from the influence of [indecent speech] that is
not obscene by adult standards."
Ibid. See
Ginsberg
v.
New York, 390 U. S. 629, 639 (1968)
(persons "who have thee] primary responsibility for children's
well-being are entitled to the support of laws designed to aid
discharge of that responsibility"). Because § 10(b) is narrowly
tailored to achieve that well-established compelling interest, I
would uphold it. I therefore dissent from the Court's decision to
the contrary.
Our precedents establish that government may support parental
authority to direct the moral upbringing of their children by
imposing a blocking requirement as a default position. For example,
in
Ginsberg, in which we upheld a State's ability to
prohibit the sale of indecent literature to minors, we pointed out
that the State had simply imposed its own default choice by noting
that "the prohibition against sales to minors does not bar parents
who so desire from purchasing the magazines for their children."
Ibid. Likewise, in
Sable we set aside a complete ban
on indecent dial-a-porn messages in part because the FCC had
previously imposed certain default rules intended to prevent access
by minors,
833
and there was no evidence that those rules were ineffective. 492
U. S., at 128-130.15
The Court strikes down § 10(b) by pointing to alternatives, such
as reverse blocking and lockboxes, that it says are less
restrictive than segregation and blocking. Though these methods
attempt to place in parents' hands the ability to permit their
children to watch as little, or as much, indecent programming as
the parents think proper, they do not effectively support parents'
authority to direct the moral upbringing of their children. See
First Report and Order, 8 FCC Rcd, at 1000-1001.16 The FCC
recognized that leased access programming comes "from a wide
variety of independent sources, with no single editor controlling
[its] selection and presentation."
Id., at 1000. Thus,
indecent programming on leased access channels is "especially
likely to be shown randomly or intermittently between nonindecent
programs."
Ibid. Rather than being able to simply block out
certain channels at certain times, a subscriber armed with only a
lockbox must carefully monitor all leased access programming and
constantly reprogram the lockbox
15 After
Sable, Congress quickly amended the statute and
the FCC again promulgated those "safe harbor" rules. Those rules
were later upheld against a First Amendment challenge. See
Dial
Information Servs. Corp. of N. Y. v.
Thornburgh,
938 F.2d
1535 (CA2 1991), cert. denied, 502 U. S. 1072 (1992);
Information Providers' Coalition for Defense of First
Amendment v.
FCC, 928 F.2d
866 (CA9 1991). In promulgating regulations pursuant to
§ 10(b), the FCC was well aware that the default rules established
for dial-a-porn had been upheld and asserted that similar rules
were necessary for leased access channels. See First Report and
Order, 8 FCC Rcd 998, 1000 (1993) ("The blocking scheme upheld in
these cases is, in all relevant respects, identical to that
required by section lO(b)");
ibid. ("[J]ust as it did in
section 223 relating to 'dial-a-porn' telephone services-Congress
has now determined that mandatory, not voluntary, blocking is
essential").
16 In the context of dial-a-porn, courts upholding the FCC's
mandatory blocking scheme have expressly found that voluntary
blocking schemes are not effective. See
Dial Information Servs.,
supra, at 1542;
Information Providers' Coalition, supra,
at 873-874.
834
Opinion of THOMAS, J.
to keep out undesired programming. Thus, even assuming that
cable subscribers generally have the technical proficiency to
properly operate a lockbox, by no means a given, this
distinguishing characteristic of leased access channels makes
lockboxes and reverse blocking largely ineffective.
Petitioners argue that § 10(b)'s segregation and blocking scheme
is not sufficiently narrowly tailored because it requires the
viewer's "written consent," 47 CFR § 76.701(b) (1995); it permits
the cable operator 30 days to respond to the written request for
access, § 76.701(c); and it is impermissibly underinclusive because
it reaches only leased access programming.
Relying on
Lamont v.
Postmaster General, 381 U. S. 301 (1965),
petitioners argue that forcing customers to submit a written
request for access will chill dissemination of speech. In
Lamont, we struck down a statute barring the mail delivery
of "'communist political propaganda'" to persons who had not
requested the Post Office in writing to deliver such propaganda.
Id., at 307. The law required the Post Office to keep an
official list of persons desiring to receive communist political
propaganda,
id., at 303, which, of course, was intended to
chill demand for such materials. Here, however, petitioners'
allegations of an official list "of those who wish to watch the
'patently offensive' channel," as the majority puts it,
ante, at 754, are pure hyperbole. The FCC regulation
implementing § 10(b)'s written request requirement, 47 CFR §
76.701(b) (1995), says nothing about the creation of a list, much
less an official Government list. It requires only that the cable
operator receive written consent. Other statutory provisions make
clear that the cable operator may not share that, or any other,
information with any other person, including the Government.
Section 551 mandates that all personally identifiable information
regarding a subscriber be kept strictly confidential and further
requires cable operators to destroy any information that is no
longer necessary for the purpose for which it was collected. 47 U.
S. C. §551.
835
None of the circumstances that figured prominently in
Lamont exists here.
Though petitioners cannot reasonably fear the specter of an
officially published list of leased access indecency viewers, it is
true that the fact that a subscriber is unblocked is ascertainable,
if only by the cable operator. I find no legally significant stigma
in that fact. If a segregation and blocking scheme is generally
permissible, then a subscriber's access request must take some
form, whether written or oral, and I see nothing nefarious in
Congress' choice of a written, rather than an oral, consentP Any
request for access to blocked programming-by whatever
method-ultimately will make the subscriber's identity knowable.18
But this is hardly the kind of chilling effect that implicates the
First Amendment.
Though making an oral request for access, perhaps by telephone,
is slightly less bothersome than making a written request, it is
also true that a written request is less subject to fraud "by a
determined child."
Ante, at 759. Consequently, despite the
fact that an oral request is slightly less restrictive in absolute
terms, it is also less effective in supporting parents' interest in
denying enterprising, but parentally unauthorized, minors access to
blocked programming.
The segregation and blocking requirement was not intended to be
a replacement for lockboxes, V-chips, reverse blocking, or other
subscriber-initiated measures. Rather, Congress enacted in § lO(b)
a default setting under which a subscriber receives no blocked
programming without a writ-
17 Because, under the circumstances of these cases, I see no
constitutionally significant difference between a written and an
oral request to see blocked programming, I also see no relevant
distinction between § 10(b) and the blocking requirement enacted in
the 1996 Act, on which the majority places so much reliance. See
ante, at 756-758.
18 Indeed, persons who request access to blocked programming
pursuant to 47 CFR § 76.701(c) (1995) are no more identifiable than
persons who subscribe to sexually oriented premium channels,
because those persons must specially request that premium
service.
836
Opinion of THOMAS, J.
ten request. Thus, subscribers who do not want the blocked
programming are protected, and subscribers who do want it may
request access. Once a subscriber requests access to blocked
programming, however, the subscriber remains free to use other
methods, such as lockboxes, to regulate the kind of programming
shown on those channels in that home.19 Thus, petitioners are wrong
to portray § 10(b) as a highly ineffective method of screening
individual programs, see Brief for Petitioners in No. 95-124, at
43, and the majority is similarly wrong to suggest that a person
cannot "watch a single program ... without letting the 'patently
offensive' channel in its entirety invade his household for days,
perhaps weeks, at a time,"
ante, at 754; see
ante, at
756. Given the limited scope of § 10(b) as a default setting, I see
nothing constitutionally infirm about Congress' decision to permit
the cable operator 30 days to unblock or reblock the segregated
channel.
Petitioners also claim that § 10(b) and its implementing
regulations are impermissibly underinclusive because they apply
only to leased access programming. In
R. A. v: v.
St.
Paul, 505 U. S.
377 (1992), we rejected the view that a content-based
restriction is subject to a separate and independent
"underinclusiveness" evaluation.
Id., at 387 ("In our view,
the First Amendment imposes not an 'underinclusiveness' limitation
but a 'content discrimination' limitation upon a State's
prohibition of proscribable speech"). See also
ante, at 757
("Congress need not deal with every problem at once"). Also,
petitioners' claim is in tension with the constitutional principle
that Congress may not impose a remedy that is more restrictive than
necessary to satisfy its asserted compelling interest and with
their own arguments pressing that very principle. Cf.
R. A.
V:,
supra, at 402 (White, J., concurring in judgment)
(though the "overbreadth doctrine
19The lockbox provision, originally passed in 1984, was
unaffected by the 1992 Act and remains fully available to every
subscriber. 47 U. S. C. § 544(d)(2).
837
has the redeeming virtue of attempting to avoid the chilling of
protected expression," an underbreadth challenge "serves no
desirable function").
In arguing that Congress could not impose a blocking requirement
without also imposing that requirement on public access and
nonaccess channels, petitioners fail to allege, much less argue,
that doing so would further Congress' compelling interest. While it
is true that indecent programming appears on nonaccess channels,
that programming appears almost exclusively on "per-program or per
channel services that subscribers must specifically request in
advance, in the same manner as under the blocking approach mandated
by section 10(b)." First Report and Order, 8 FCC Rcd, at 1001, n.
20.20 In contrast to these premium services, leased access channels
are part of the basic cable package, and the segregation and
blocking scheme Congress imposed does nothing more than convert
sexually oriented leased access programming into a free "premium
service." 21 Similarly, Congress' failure to impose segregation and
blocking requirements on public access channels may have been based
on its judgment that those channels presented a less severe problem
of unintended indecency-it appears that most of the anecdotal
evidence before Congress involved leased access channels. Congress
may also have simply de-
20 In examining the restrictions imposed by the 1996 Act, the
majority is probably correct to doubt that "sex-dedicated channels
are all (or mostly) leased channels,"
ante, at 757, but
surely the majority does not doubt that most nonleased
sex-dedicated channels are premium channels that must be expressly
requested. I thus disagree that the provisions of the 1996 Act
address a "highly similar problem."
Ante, at 758.
21 Unlike Congress' blocking scheme, and the market norm of
requiring viewers to pay a premium for indecent programming,
lockboxes place a financial burden on those seeking to avoid
indecent programming on leased access channels. See 47 U. S. C. §
544(d)(2) ("[A] cable operator shall provide (by sale or lease) a
device by which the subscriber can prohibit viewing of a particular
cable service during periods selected by that subscriber").
838
Opinion of THOMAS, J.
cided to permit the States and local franchising authorities to
address the issue of indecency on public access channels at a local
level, in accordance with the local rule policies evinced in 47 U.
S. C. § 531. In any event, if the segregation and blocking scheme
established by Congress is narrowly tailored to achieve a
compelling governmental interest, it does not become
constitutionally suspect merely because Congress did not extend the
same restriction to other channels on which there was less of a
perceived problem (and perhaps no compelling interest).
The United States has carried its burden of demonstrating that §
lO(b) and its implementing regulations are narrowly tailored to
satisfy a compelling governmental interest. Accordingly, I would
affirm the judgment of the Court of Appeals in its entirety. I
therefore concur in the judgment upholding § lO(a) and respectfully
dissent from that portion of the judgment striking down §§ lO(b)
and (c).
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