Facts
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Congress enacted the Cable Television Consumer Protection and Competition Act of 1992 to address concerns about “patently offensive” sexual material on cable television, including children’s access.
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The Act regulated two types of access channels:
- “Leased access” channels, which cable operators must set aside for use by unaffiliated commercial programmers.
- “Public, educational, or governmental” (PEG) access channels, typically established through local franchise arrangements.
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Section 10(a) permitted a cable operator, on leased access channels, to bar programming the operator reasonably believed depicted sexual or excretory activities or organs in a patently offensive manner.
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Section 10(b) required, for leased access patently offensive programming, that operators segregate such programming onto a single channel and block it by default unless a subscriber requested access in writing.
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Section 10(c) permitted a cable operator, on PEG access channels, to bar programming the operator reasonably believed depicted sexual or excretory activities or organs in a patently offensive manner.
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Petitioners (programmers, viewers, and advocacy groups) challenged §§ 10(a), 10(b), and 10(c), as implemented by FCC regulations, under the First Amendment.
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The D.C. Circuit (en banc) upheld all three provisions; the Supreme Court granted review and consolidated related petitions.
Issues
- Whether § 10(a), authorizing cable operators to prohibit patently offensive programming on leased access channels, violates the First Amendment.
- Whether § 10(b), requiring segregation and default blocking of patently offensive leased access programming unless a subscriber opts in in writing, violates the First Amendment.
- Whether § 10(c), authorizing cable operators to prohibit patently offensive programming on PEG access channels, violates the First Amendment.
Decision
- The Supreme Court affirmed in part and reversed in part the D.C. Circuit.
- The Court upheld § 10(a) as consistent with the First Amendment.
- The Court struck down § 10(b) as inconsistent with the First Amendment.
- The Court struck down § 10(c) as inconsistent with the First Amendment.
- The decision was fractured, with a majority joining the portion invalidating § 10(b), and shifting alignments on other parts.
Legal Principles
- First Amendment analysis of cable regulation is context-sensitive; cable is not treated as identical to broadcast or print for all purposes, and channel type and regulatory design can affect constitutionality.
- A content-based access regime that significantly burdens adult viewing choices—such as segregating programming and requiring advance, written opt-in—can violate the First Amendment when it is not appropriately tailored to protecting children and when less speech-restrictive alternatives are available.
- Government may, in certain contexts, permit cable operators to exercise private editorial discretion (rather than compel carriage), including allowing operators to decline to carry patently offensive programming on leased access channels.
- Granting cable operators broad statutory authority to bar patently offensive programming on PEG access channels is constitutionally suspect because PEG channels function differently from leased access channels and the operator’s veto risks suppressing protected speech beyond what is justified.
Conclusion
The Court upheld Congress’s decision to permit cable operators to bar patently offensive programming on leased access channels (§ 10(a)), but held that the Act went too far by imposing an opt-in segregate-and-block scheme for leased access programming (§ 10(b)) and by authorizing operator censorship of PEG access programming (§ 10(c)), both of which failed First Amendment requirements of appropriate tailoring given their burdens on protected speech.