Cable operators cannot be forced to block indecent programming

WASHINGTON D.C.–Operators of cable systems are permitted to decide whether or not to air indecent material on leased access channels, but cannot be required to segregate and block all indecent programming, the U.S. Supreme Court ruled in late June. However, cable operators cannot bar such programs from public, educational or governmental (PEG) access channels under the ruling.

A splintered Court issued six separate opinions on the Helms Amendment to the Cable Television Consumer Protection and Competition Act of 1992, which regulates indecency on cable access channels. In a plurality opinion written by Justice Stephen Breyer, the Court struck down two sections of the act as inconsistent with the First Amendment, while upholding a third section.

The decision applies differing standards for “leased access channels” and “public” or “PEG channels.” A “leased access channel” is a channel that federal law requires a cable system operator to reserve for commercial lease by unaffiliated organizations. A “PEG channel” is a channel that a local government requires to be set aside for public, governmental or educational purposes in exchange for local municipalities granting easements to cable operators for installing cable.

The Court voted six to three to strike down a section that requires operators of leased access channels to place all indecent programming on a single channel and block the channel to every household unless access is requested in writing. Although Breyer found the protection of children to be a compelling government interest, he found the “segregate and block” requirements more restrictive than necessary to achieve the government interest. He also suggested that technology such as lockboxes and V-chips are available to aid parents in protecting their children.

In a five-to-four vote, the Court struck down the section that allowed operators of PEG channels to refuse to air indecent material. Unlike their leased access channel counterparts, operators of PEG channels are not permitted to censor indecent material that is otherwise protected under the First Amendment. The Court held that differences between the nature of leased access channels and public access channels warranted different standards.

The Court voted seven to two to uphold the section that permits but does not require operators of leased access channels to refuse to carry indecent programming. Breyer reasoned that the protection of children outweighed any First Amendment concerns because the stations are not required to ban indecent material by the government. He said the provision was neither too vague nor overbroad.

Justice Anthony Kennedy, joined by Justice Ruth Bader Ginsburg, would have found all three provisions of the act unconstitutional. Kennedy said he would have applied a stricter test to the regulations, rather than balancing them against the government’s interests, because each provision of the act is a content-based restriction on free speech.

Justice Clarence Thomas, joined by Chief Justice William Rehnquist and Justice Antonin Scalia, filed a dissent in which he argued that all three sections of the act should be upheld. While programmers are protected from governmental intrusion by the First Amendment, Thomas wrote, “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.” (Denver Area Educational Telecommunications Consortium v. FCC; Media Counsel: I. Michael Greenberger, Washington, D.C.)