WASHINGTON, D.C.–Cable company operators who ban what they believe to be “indecent” programs are not violating programmers’ free speech rights, the U.S. Court of Appeals (D.C. Cir.) held in early June.
A 7-4 majority of the court upheld the constitutionality of Section 10 of the Cable Television Consumer Protection and Competition Act of 1992, which allows cable operators either to refuse to carry on leased access channels what the operator deems indecent programming, or to relegate it to a channel which will be blocked until a subscriber requests access. Section 10 also enables operators to prohibit indecent material on channels for “public, educational and government use” (PEG channels) and eliminated cable operators’ liability for obscene programming shown on PEG or leased access channels.
The Court refused to overturn an FCC informal rulemaking on the matter, in a petition for review brought by an individual cable access programmer, five organizations whose members produce programming for access channels and two public interest groups.
The Court noted that the First Amendment restricts only the government, and actions taken by private cable operators with respect to indecent programming on leased and PEG channels is considered private conduct.
The court held that segregation and blocking requirements are the least restrictive means of achieving the government’s interest and dismissed a contention that this requirement impermissibly discriminates against indecent programming on leased access channels.
The court also found that the requirements do not constitute a prior restraint on speech and are not, because of the definition of indecency, unconstitutionally vague. Alliance for Community Media v. FCC; Petitioners’ Counsel: I. Michael Greenberger)
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