NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Lumber Co., 200 U.S. 321, 337.




certiorari to the united states court of appeals for the district of columbia circuit

No. 95-124. Argued February 21, 1996 -- Decided June 28, 1996


These cases involve three sections of the Cable Television Consumer Protection and Competition Act of 1992 (Act), as implemented by Federal Communications Commission (FCC) regulations. Both §10(a) of the Act--which applies to "leased access channels" reserved under federal law for commercial lease by parties unaffiliated with the cable television system operator--and §10(c)--which regulates "public access channels" required by local governments for public, educational, and governmental programming--essentially permit the operator to allow or prohibit "programming" that it "reasonably believes . . . depicts sexual . . . activities or organs in a patently offensive manner." Under §10(b), which applies only to leased access channels, operators are required to segregate "patently offensive" programming on a single channel, to block that channel from viewer access, and to unblock it (or later to reblock it) within 30 days of a subscriber's written request. Between 1984, when Congress authorized municipalities to require operators to create public access channels, and the Act's passage, federal law prohibited operators from exercising any editorial control over the content of programs broadcast over either type of access channel. Petitioners sought judicial review of §§10(a), (b), and (c), and the en banc Court of Appeals held that all three sections (as implemented) were consistent with the First Amendment.

Held: The judgment is affirmed in part and reversed in part.

56 F. 3d 105, affirmed in part and reversed in part.

Justice Breyer delivered the opinion of the Court with respect to Part III, concluding that §10(b) violates the First Amendment. That section's "segregate and block" requirements have obvious speech restrictive effects for viewers, who cannot watch programs segregated on the "patently offensive" channel without considerable advance planning or receive just an occasional few such programs, and who may judge a program's value through the company it keeps or refrain from subscribing to the segregated channel out of fear that the operator will disclose its subscriber list. Moreover, §10(b) is not appropriately tailored to achieve its basic, legitimate objective of protecting children from exposure to "patently offensive" materials. Less restrictive means utilized by Congress elsewhere to protect children from "patently offensive" sexual material broadcast on cable channels indicate that §10(b) is overly restrictive while its benefits are speculative. These include some provisions of the Telecommunications Act of 1996, which utilizes blocking without written request, "V chips," and other significantly less restrictive means, and the "lockbox" requirement that has been in place since the Cable Act of 1984. Pp. 23-30.

Justice Breyer, joined by Justice Stevens, Justice O'Connor, and Justice Souter, concluded in Parts I and II that §10(a) is consistent with the First Amendment. Pp. 6-23.

(a) Close scrutiny demonstrates that §10(a) properly addresses a serious problem without imposing, in light of the relevant competing interests, an unnecessarily great restriction on speech. First, the section comes accompanied with the extremely important child protection justification that this Court has often found compelling. See, e.g., Sable Communications of Cal., Inc. v. FCC, 492 U.S. 115, 126. Second, §10(a) arises in a very particular context--congressional permission for cable operators to regulate programming that, but for a previous Act of Congress, would have had no path of access to cable channels free of an operator's control. The First Amendment interests involved are therefore complex, and require a balance between those interests served by the access requirements themselves (increasing the availability of avenues of expression to programmers who otherwise would not have them), see H. R. Rep. No. 98-934, pp. 31-36 (1984), and the disadvantage to the First Amendment interests of cable operators and other programmers (those to whom the operator would have assigned the channels devoted to access). See Turner Broadcasting System, Inc. v. FCC, 512 U. S. ___, ___. Third, the problem §10(a) addresses is analogous to the "indecent" radio broadcasts at issue in FCC v. Pacifica Foundation, 438 U.S. 726, and the balance Congress struck here is commensurate with the balance the Court approved in that case. Fourth, §10(a)'s permissive nature means that it likely restricts speech less than, not more than, the ban at issue in Pacifica. The importance of the interest at stake here--protecting children from exposure to patently offensive depictions of sex; the accommodation of the interests of programmers in maintaining access channels and of cable operators in editing the contents of their channels; the similarity of the problem and its solution to those at issue in Pacifica; and the flexibility inherent in an approach that permits private cable operators to make editorial decisions, persuasively establishes that §10(a) is a sufficiently tailored response to an extraordinarily important problem involving a complex balance of interests. Sable, supra, at 128, and Turner, supra, at ___, distinguished. Pp. 6-18.

(b) Petitioners' reliance on this Court's "public forum" cases is unavailing. It is unnecessary and unwise to decide whether or how to apply the public forum doctrine to leased access channels. First, it is not clear whether that doctrine should be imported wholesale into common carriage regulation of such a new and changing area. Second, although limited public forums are permissible, the Court has not yet determined whether the decision to limit a forum is necessarily subject to the highest level of scrutiny, and these cases do not require that it do so now. Finally, and most important, the features that make §10(a) an acceptable constraint on speech also make it an acceptable limitation on access to the claimed public forum. Pp. 18-20.

(c) Section 10(a)'s definition of the materials it regulates is not impermissibly vague. Because the language used is similar to that adopted in Miller v. California, 413 U.S. 15, 24, as a "guidelin[e]" for state obscenity laws, it would appear to narrow cable operators' program screening authority to materials that involve the same kind of sexually explicit materials that would be obscene under Miller, but that might have "serious literary, artistic, political or scientific value" or nonprurient purposes, ibid. That the definition is not overly broad is further indicated by this Court's construction of the phrase "patently offensive," see Pacifica, supra, at 748, 750, which would narrow the category late at night when the audience is basically adult, and by the fact that §10(a) permits operators to screen programs only pursuant to a "written and published policy." The definition's "reasonabl[e] belie[f]" qualifier seems designed to provide a legal excuse for the operator's honest mistake, and it constrains the operator's discretion as much as it protects it. Pp. 20-23.

Justice Breyer, joined by Justice Stevens and Justice Souter, concluded in Part IV that §10(c) violates the First Amendment. Section 10(c), although like §10(a) a permissive provision, is different from §10(a) for four reasons. First, cable operators have not historically exercised editorial control over public access channels, such that §10(c)'s restriction on programmers' capacity to speak does not effect a countervailing removal of a restriction on cable operators' speech. Second, programming on those channels is normally subject to complex supervisory systems composed of both public and private elements, and §10(c) is therefore likely less necessary to protect children. Third, the existence of a system that encourages and secures programming that the community considers valuable strongly suggests that a "cable operator's veto" is more likely to erroneously exclude borderline programs that should be broadcast, than to achieve the statute's basic objective of protecting children. Fourth, the Government has not shown that there is a significant enough problem of patently offensive broadcasts to children, over public access channels, that justifies the restriction imposed by §10(c). Consequently, §10(c) violates the First Amendment. Pp. 31-37.

Justice Kennedy, joined by Justice Ginsburg, concurred in the judgment that §10(c) is invalid, but for different reasons. Because the public access channels regulated by §10(c) are required by local cable franchise authorities, those channels are "designated public forums," i.e., property that the government has opened for expressive activity by the public. International Soc. for Krishna Consciousness, Inc. v. Lee, 505 U.S. 672, 678. Section 10(c) vests the cable operator with a power under federal law, defined by reference to the content of speech, to override the franchise agreement and undercut the public forum the agreement creates. Where the government thus excludes speech from a public forum on the basis of its content, the Constitution requires that the regulation be given the most exacting scrutiny. See, e.g., ibid. Section 10(c) cannot survive strict scrutiny. Although Congress has a compelling interest in protecting children from indecent speech, see, e.g., Sable Communications, 492 U. S., at 126, §10(c) is not narrowly tailored to serve that interest, since, among other things, there is no basis in the record establishing that §10(c) is the least restrictive means to accomplish that purpose. See, e.g., Sable Communications, supra, at 128-130. The Government's argument for not applying strict scrutiny here, that indecent cablecasts are subject to the lower standard of review applied in FCC v. Pacifica Foundation, 438 U.S. 726, 748, is not persuasive, since that lower standard does not even apply to infringements on the liberties of cable operators, Turner Broadcasting System, Inc. v. FCC, 512 U. S. __, __. There is less cause for a lower standard when the rights of cable programmers and viewers are at stake. Pp. 2-5, 12-16, 24-31.

Justice Thomas, joined by The Chief Justice and Justice Scalia, agreed that §10(a) is constitutionally permissible. Cable operators are generally entitled to much the same First Amendment protection as the print media. Turner Broadcasting System, Inc. v. FCC, 512 U. S. __, __, __. Because Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, and Pacific Gas & Elec. Co. v. Public Util. Comm'n of Cal., 475 U.S. 1, are therefore applicable, see Turner, supra, at __ (O'Connor, J., concurring in part and dissenting in part), the cable operator's editorial rights have general primacy under the First Amendment over the rights of programmers to transmit and of viewers to watch. None of the petitioners are cable operators; they are all cable viewers or access programmers or their representative organizations. Because the cable access provisions are part of a scheme that restricts operators' free speech rights and expands the speaking opportunities of programmers who have no underlying constitutional right to speak through the cable medium, the programmers cannot challenge the scheme, or a particular part of it, as an abridgment of their "freedom of speech." Sections 10(a) and (c) merely restore part of the editorial discretion an operator would have absent Government regulation. Pp. 1-15.

Breyer, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Part III, in which Stevens, O'Connor, Kennedy, Souter, and Ginsburg, JJ., joined, an opinion with respect to Parts I, II, and V, in which Stevens, O'Connor and Souter, JJ., joined, and an opinion with respect to Parts IV and VI, in which Stevens and Souter, JJ., joined. Stevens, J., and Souter, J., filed concurring opinions. O'Connor, J., filed an opinion concurring in part and dissenting in part. Kennedy, J., filed an opinion concurring in part, concurring in the judgment in part, and dissenting in part, in which Ginsburg, J., joined. Thomas, J., filed an opinion concurring in the judgment in part and dissenting in part, in which Rehnquist, C. J., and Scalia, J., joined.


* Together with No. 95-227, Alliance for Community Media et al. v. Federal Communications Commission et al., also on certiorari to the same court.