Denver Area Educ. Telcoms. Consortium v. Fcc - 518 U.S. 727, 116 S. Ct. 2374 (1996)

Rule:

The First Amendment embodies an overarching commitment to protect speech from government regulation through close judicial scrutiny, thereby enforcing the U.S. Constitution's constraints, but without imposing judicial formulas so rigid that they become a straitjacket that disables government from responding to serious problems. The Supreme Court, in different contexts, consistently holds that government may directly regulate speech to address extraordinary problems, where its regulations are appropriately tailored to resolve those problems without imposing an unnecessarily great restriction on speech.

Facts:

In an effort to control non-obscene but sexually explicit or "indecent" programming conveyed over cable television, Congress enacted various provisions of the Cable Television Consumer Protection and Competition Act of 1992. Specifically, the first provision, Act § 10(a), 47 U.S.C.S. § 532(h), permitted cable operators to decide whether or not to broadcast such programming on leased access channels; the Second provision, Act § 10(b), 47 U.S.C.S. § 532(j) required leased channel operators to segregate and to block that programming; and the third provision, Act § 10(c), 47 U.S.C.S. note following § 531, applied to public, educational, and governmental channels. Various parties, including some public access programmers and viewers of such programmers' shows, sought judicial review of these regulations in the United States Court of Appeals for the District of Columbia Circuit. A panel of the Court of Appeals concluded that the provisions violated the Federal Constitution's First Amendment (10 F3d 812), but the entire Court of Appeals, rehearing the case en banc, held that the provisions, as implemented, were consistent with the First Amendment.

Issue:

Were the provisions of the Cable Television Consumer Protection and Competition Act of 1992 constitutional?

Answer:

Yes, with respect to the first provision. No, with respect to the second and third provisions.

Conclusion:

The Supreme Court upheld the first provision because the government's interest in protecting children, the permissive aspect of statute, and the nature of the medium sufficiently justified a limitation on the availability of this forum. However, the court concluded that second and third provisions violated the First Amendment because they were not appropriately tailored to achieve compelling interest of protection of children. With respect to the second provision, the Court held that the 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 kept or refrain from subscribing to the segregated channel out of fear that the operator will disclose its subscriber list. Anent the third provision, the Court held that the Government has not shown that there was a significant enough problem of patently offensive broadcasts to children, over public access channels, that justified the restriction imposed by § 10(c).