Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
The Court has recognized that cable television
implicates First Amendment interests, because a cable operator communicates ideas through selection of original programming and through exercise of editorial discretion in determining which stations to include in its offering. 1 Moreover,
settled principles of . . . First Amendment jurisprudence govern review of cable regulation; cable is not limited by
scarce broadcast frequencies and does not require the same less rigorous standard of review that the Court applies to regulation of broadcasting. 2 Cable does, however, have unique characteristics that justify regulations that single out cable for special treatment. 3 The Court in Turner Broadcasting System v. FCC 4 upheld federal statutory requirements that cable systems carry local commercial and public television stations. Although these
distinguish between speakers in the television programming market, they do so based on the manner of transmission and not on the content the messages conveyed, and hence are content-neutral. 5 The regulations could therefore be measured by the
intermediate level of scrutiny set forth in United States v. O’Brien. 6 Two years later, however, a splintered Court could not agree on what standard of review to apply to content-based restrictions of cable broadcasts. Striking down a requirement that cable operators must, in order to protect children, segregate and block programs with patently offensive sexual material, a Court majority in Denver Area Educational Telecommunications Consortium v. FCC, 7 found it unnecessary to determine whether strict scrutiny or some lesser standard applies, because it deemed the restriction invalid under any of the alternative tests. There was no opinion of the Court on the other two holdings in the case, 8 and a plurality 9 rejected assertions that public forum analysis, 10 or a rule giving cable operators’ editorial rights
general primacy over the rights of programmers and viewers, 11 should govern.
Subsequently, in United States v. Playboy Entertainment Group, Inc., 12 the Supreme Court made clear, as it had not in Denver Consortium, that strict scrutiny applies to content-based speech restrictions on cable television. The Court struck down a federal statute designed to
shield children from hearing or seeing images resulting from signal bleed, which refers to blurred images or sounds that come through to non-subscribers. 13 The statute required cable operators, on channels primarily dedicated to sexually oriented programming, either to scramble fully or otherwise fully block such channels, or to not provide such programming when a significant number of children are likely to be viewing it, which, under an FCC regulation meant to transmit the programming only from 10 p.m. to 6 a.m. The Court found that, even without
discount[ing] the possibility that a graphic image could have a negative impact on a young child, it could not conclude that Congress had used
the least restrictive means for addressing the problem. 14 Congress in fact had enacted another provision that was less restrictive and that served the government’s purpose. This other provision requires that, upon request by a cable subscriber, a cable operator, without charge, fully scramble or otherwise fully block any channel to which a subscriber does not subscribe. 15