Update: On May 27, 2020, a Washington state trial court granted Fox’s motion to dismiss, concluding that WASHLITE’s Consumer Protection Act claim against the cable news channel is barred under the First Amendment.
Are cable news channels protected by the First Amendment?
That’s the question teed up in a little-noticed lawsuit against Fox News for its COVID-19 coverage, which the plaintiff claims discounted the threat of the pandemic and led viewers to fail to protect themselves. The plaintiff, a small Washington state nonprofit called the Washington League for Increased Transparency and Ethics, or WASHLITE, is suing Fox for what it claims are violations of the state’s consumer protection laws.
Fox and WASHLITE have already gone back and forth on the consumer protection claim, but the nonprofit filed an extraordinary brief last week in response to Fox’s motion to dismiss, arguing that cable news channels, indeed all cable content producers, are wholly unprotected by the First Amendment when that content is distributed over a third-party cable operator’s system. The plaintiff is misstating the law and doing so in such a way that would impair speech and press protections for everyone.
In fact, the argument — if taken to its logical conclusion — would strip First Amendment protections from content distributed over the public internet, including this blog post. To understand why, one needs a bit of background.
Cable TV and the regulation of leased and public, educational, and government access
Cable television in the United States dates back to the late 1940s and early 1950s, but for the first quarter century of its existence was limited to sending terrestrial, over-the-air television broadcasts over coaxial “cables” to areas that, because of remoteness or mountainous terrain, suffered poor reception. Original cable programming started in the early 1970s with pioneers like Home Box Office, TBS, and the cult “Z Channel” in Los Angeles.
Starting at about the same time, the Federal Communications Commission began promulgating rules for cable programming, the most relevant here being requirements that cable programmers dedicate certain channels for public, educational, or government (PEG) use, or for commercial lease by unaffiliated programmers. An ongoing debate over the FCC’s authority to impose these rules and efforts to both regulate and deregulate the industry led to passage of federal laws in 1984 and 1992 governing cable providers’ leased access and PEG channel requirements.
Prior to 1992, cable providers were prohibited from exercising any editorial control over leased or PEG channels. In the 1992 law, Congress enacted three provisions empowering cable providers to permit or restrict leased access or PEG programming that depicts “sexual or excretory activities or organs in a patently offensive manner as measured by contemporary community standards” (in other words, “indecent” content).
The first provision permitted, but did not require, cable operators to enforce rules against indecency on PEG or leased access channels. The second was an affirmative command: If an operator decided to permit indecent content over leased access channels, it had to limit it to a single channel and block access unless a cable subscriber requested access (the “segregate-and-block” requirement). Third, the 1992 law required the FCC to implement regulations that would allow cable operators to prohibit similar content on PEG access channels.
The Supreme Court weighs in
A coalition of cable programmers and viewers challenged parts of the law under the First Amendment. That 1996 Supreme Court case, Denver Area Telecommunications Consortium, Inc. v. FCC, is the main precedent cited by WASHLITE against Fox. The decision itself is a thicket — there are six different opinions — but the bottom line is that it does not stand for the proposition that cable programmers are unprotected by the First Amendment when their content is distributed by a third-party cable operator, quite the contrary.
Crucially, the majority found that the second provision, the affirmative segregate-and-block requirement for leased access, was a violation of the First Amendment rights of programmers and operators. Six justices agreed (Justices Stephen Breyer, Ruth Bader Ginsburg, Anthony Kennedy, Sandra Day O’Connor, David Souter, and John Paul Stevens). Three justices — Chief Justice William Rehnquist, and Justices Antonin Scalia and Clarence Thomas — dissented. And WASHLITE relies on this dissent, which, as explained below, also does not hold that cable programmers are unprotected by the First Amendment.
Indeed, the action in the case was around the first and third provisions. Confusingly, two justices — Kennedy and Ginsburg — would have struck down all three provisions. And, three justices — Thomas, Scalia, and Rehnquist — would have upheld all three provisions (thus they concurred in upholding the first provision). Justice O’Connor would have upheld the first and third provisions.
Accordingly, the Court upheld the first provision, which permitted but did not require cable operators to limit indecent content on leased and PEG channels, by a vote of 7-2. As noted, the second provision was struck down by a vote of 6-3. And the third provision, permitting operators to regulate indecent speech on PEG channels, was held unconstitutional by a vote of 5-4. (Justices found that, unlike leased channels, PEG programming was, one, unlikely to contain indecent content and, two, was provided for in local franchise agreements, meaning that a federally recognized right to limit indecent speech could interfere with those agreements.)
Returning to the dissent relied on by WASHLITE, as noted, Justice Thomas, joined by Chief Justice Rehnquist and Justice Scalia, would have upheld all three provisions. For the first and third provisions, Justice Thomas focused on their permissive nature — that is, they did not forbid cable operators from carrying indecent content, and therefore did not burden the First Amendment rights of cable programmers (note that Justice Thomas is acknowledging that such rights exist).
Rather, the first and third provisions restored editorial discretion to the cable operator. As Justice Thomas reasoned, the cable operators were the ones harmed by the PEG and leased access requirements, like a bookstore forced to “sell books published on the subject of congressional politics.” This is what WASHLITE cites in their brief — they note that Justice Thomas held that cable programmers do not have an affirmative right to force a private cable operator to carry content, but Justice Thomas did not say that content providers lack First Amendment rights.
Further, with respect to the second provision, the “segregate-and-block” requirement for cable operators who decide to carry indecent programming, far from eschewing First Amendment rights for the cable programmers, Justice Thomas expressly recognizes them. Unlike the first and third provisions, the “segregate-and-block” requirement “clearly implicates [the cable programmers’ and viewers’] rights,” Justice Thomas wrote.
But, Justice Thomas applied “strict scrutiny” — the highest level of constitutional scrutiny, which courts must apply to government restrictions on speech based on its content — and found that the government had met its burden to show the second provision was narrowly tailored to satisfy a compelling government interest. In other words, the dissenting justices would have found that, while cable programmers have First Amendment rights, the government had a really good reason to require operators to segregate and block indecent content (to protect children) and that other means to do so, like the “V-chip,” were not up to the task.
WASHLITE’s legal errors, and why they’re so threatening to First Amendment rights
At base, WASHLITE makes two legal errors. One, it relies on a dissent in a case where the majority expressly found First Amendment protections for cable programmers on a third-party cable system. Two, it misconstrues that dissent. Rather than holding that cable programmers have no First Amendment rights, the dissent would have found that — in the context of indecent programming — the segregate-and-block requirement satisfied the “strict in theory, fatal in fact” high bar of strict scrutiny analysis. WASHLITE has failed to even advance an argument as to why the same analysis should apply in the context of a state consumer protection lawsuit seeking to penalize the exercise of editorial discretion on a news channel.
Two final points are in order.
First, not only does WASHLITE misstate the law with respect to cable, it does so with respect to print and over-the-air broadcast media as well. The only medium of communication subject to slightly less First Amendment protection under current law is “bunny ears” broadcasting — that is the use of the electromagnetic spectrum to broadcast audio and visual information over the air. This is because, one, spectrum is “scarce,” meaning government intervention is theoretically justified to preserve viewpoint diversity, and, two, it’s pervasive, meaning that, in essence, children could be inadvertently exposed to indecent speech absent government regulation.
Further, that limited exception for over-the-air broadcast is itself now controversial, as the advent of the internet, the conversion of analog signals to digital, and other technological advancements that have mitigated scarcity and allowed for greater consumer control, have undercut the legal justifications for the Red Lion and Pacifica decisions allowing government regulation of over-the-air content.
Second, and as noted, WASHLITE’s argument is not limited to cable. It is effectively saying that when a news organization uses a third party to get its news to the public, the content of that news receives no First Amendment protection.
Among other things, that logic would extend to newspapers who use third-party contractors to deliver the physical paper or rely on internet service providers to distribute digital content. It would extend to syndicated radio programs who sell content to third-party broadcasters. And it would apply to the broadcast networks. ABC, CBS, the CW, FOX, and NBC would only be protected when their programming is broadcast by owned-and-operated stations. PBS wouldn’t be protected at all because it doesn’t own its member stations.
In fact, that logic would strip First Amendment protections from this blog post because the Reporters Committee relies on a third party to host our website and third-party internet and technology providers to transmit our speech to the public.
The COVID-19 pandemic is both a public health crisis and a profound challenge to civil liberties here and around the world. And it is a political crisis that is provoking intense and acrimonious policy debates at all points on the ideological spectrum. But that debate means that the First Amendment matters more now, not less, and regardless of who is doing the speaking or debating, it should be vigilantly protected. WASHLITE’s legal theory would limit the ability of all Americans to report the news or, more broadly, speak freely on one of the most important public policy debates in generations.
The Reporters Committee regularly files friend-of-the-court briefs and its attorneys represent journalists and news organizations pro bono in court cases that involve First Amendment freedoms, the newsgathering rights of journalists and access to public information. Stay up-to-date on our work by signing up for our monthly newsletter and following us on Twitter or Instagram.