Supreme Court sends cable dispute back to trial court

WASHINGTON, D.C. — Saying it needs more evidence that local television stations face extinction in the wake of advancing cable technology, the U.S. Supreme Court in late June sent back to the trial court a dispute about must-carry legislation.

The case pits numerous cable programmers and operators against the federal government.

The Cable Television Consumer Protection and Competition Act of 1992 requires cable companies to allot about one-third of program slots to local commercial and public broadcast stations. Otherwise, the government contends, local broadcasters would be bullied out of the market by the fast-growing cable companies and the 40 percent of Americans who do not subscribe or have access to cable would be cut off from an important source of information.

The cable industry, however, contends that the rule is a thinly veiled attempt to regulate program content. The must-carry rule is an unconstitutional invasion of editorial control, cable operators and programmers claim, and should be struck down just as legislation that attempts to regulate the content of newspapers or other broadcasts has been.

A three-judge panel of the U.S. District Court in Washington granted the government summary judgment in the case, saying that the must-carry rule is in line with the First Amendment because any impact it has on speech is incidental to the government’s legitimate need to ensure a multiplicity of information sources.

Justice Anthony Kennedy wrote the opinion for the 5-4 majority. It largely adheres to the lower court decision, but concludes that the government failed to show that the dangers it alleges are real rather than speculative and that the regulation it has adopted will alleviate the problems without unnecessarily burdening the free speech rights of cable operators.

In a separate opinion, Justice Sandra Day O’Connor argued that the must-carry rule is necessarily content-based, even if it does not discriminate based on viewpoint, and said she would have reversed the lower court decision. Justices Scalia, Ginsburg and Thomas joined O’Connor’s opinion, concurring with the majority in part and dissenting in part.

(Turner Broadcasting System, Inc. v. Federal Communications Commission; Media Counsel: H. Bartow Farr III, Washington)

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.