DENVER AREA EDUCATIONAL TELECOMMUNICATIONS CONSORTIUM, INC., et al. v. FEDERAL COMMUNICATIONS COMMISSION et al.

Legal Principle at Issue

Whether the government may constitutionally (1) permit cable operators to refuse to carry indecent material on leased local access channels, (2) require cable operators that choose to carry indecent local access programming to place such programming on a separate channel and to block the channel until the subscriber requests unblocking, and (3) permit cable operators to refuse to carry indecent programming on local public, educational, and governmental channels.

Action

Affirmed (includes modified). Petitioning party did not receive a favorable disposition.

Facts/Syllabus

Section 10 of the Cable Television Consumer Protection and Competition Act of 1992, 47 U.S.C. _ 532, regulates indecent programming on local access cable television channels. Indecent speech is speech that, while not obscene, describes or depicts sexual or excretory activities or organs in an offensive manner. Local access channels are those channels set aside by the cable operator for use by persons not affiliated with the operator. The operator is prohibited from exercising any editorial control over these channels. Local access channels usually either are leased or are the "public, educational, or governmental" channels that a local government requires the operator to set aside as partial consideration for the operator's right to install cables under city streets and to otherwise use public right of ways. Section 10(a) of the Act permits cable operators to refuse to carry indecent speech on leased local access channels. Section 10(b) of the Act directs the Federal Communications Commission to adopt rules requiring operators who choose to carry indecent programming on local access channels to place the programs on a separate channel and to block the channel until the subscriber, in writing, requests unblocking. Section 10(c) permits cable operators to refuse to carry indecent speech on public, educational, or governmental channels.
A combination of groups that produce and watch local access programming challenged the Act and the FCC regulations implementing it on First Amendment grounds. The groups argued that the Act and regulations unconstitutionally censored indecent speech. A panel of the District of Columbia Court of Appeals agreed with this argument and struck down the Act. On rehearing, however, the full court reversed and held that the Act was constitutional because it did not require censorship of indecent speech and because the blocking provisions were the least restrictive means of furthering the government's interest in shielding children from indecent programming.

When, as in this case, a governmental restriction of speech is based upon the content of that speech, the restriction can be upheld only if it constitutes the least restrictive means of advancing a compelling governmental interest. Sable Communications of Cal. v. FCC, 492 U.S. 115 (1989). In the broadcasting context, the least restrictive means analysis often involves determining whether the broadcasts are available to children, whether the type of broadcasting is pervasively present in society, whether the indecent material can "confront" the audience with little or no warning, and whether adults have other means to receive similar speech. See, e.g., FCC v. Pacifica Foundation, 438 U.S. 726 (1978).

Importance of Case

As demonstrated by the number of concurring and dissenting opinions, the Court continues to struggle to define the standards that should apply to cable broadcasting. Justice Kennedy, for example, argues that other First Amendment doctrines, such as the public forum analysis, can and should be applied as First Amendment issues arise in new contexts. The gist of Justice Breyer's opinion, however, is that technology is outpacing the development of these doctrines and that the Court should be flexible when it decides these issues. As Internet cases wind their way to the Court, this debate likely will continue.

While the members of the Court in this case did not agree on much, they agreed that the need to protect children from exposure to indecent speech is compelling. The disagreements centered on whether the specific provisions of the Act were the least restrictive means of advancing that compelling interest. As to Section 10(a), the majority held that the "permissive" nature of the regulation, i.e., that the operators were not required to censor indecent speech, was tailored so as to protect the interests of both the cable operator and the programmer. As to Section 10(b), the majority held that the "all-or-nothing" blocking provisions were overbroad and were not the least restrictive means available. As to Section 10(c), the slim majority held that the statute was overly restrictive in light of the local and community involvement in managing public, educational, and governmental channels.