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The First Amendment and Compulsory Access to Cable Television

by Fred H. Cate


The government is constitutionally prohibited from requiring cable operators to transmit the programming of others. Any argument to the contrary, much less Donna Lampert's contention that government-enforced access is constitutionally mandated, fails to heed the constitutional protection afforded expression by the First Amendment.

An "Unfettered Interchange of Ideas"

The First Amendment provide, in relevant part, that "Congress shall make no law . . . abridging the freedom of speech or of the press." There is no indication of a right of access to a diversity of views. Rather, the U.S. Supreme Court has repeatedly asserted that "the First Amendment 'was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.'"2

The Court has stressed the importance of not allowing government to interfere with that interchange. "[T]he public's interest in receiving information," according to the Court, is served within the framework of the First Amendment, by protecting those who wish to speak from governmental intervention.3 As Justice Potter Stewart wrote: "Those who wrote our First Amendment put their faith in the proposition that a free press is indispensable to a free society. They believed that 'fairness' was far too fragile to be left for a government bureaucracy to accomplish."4

Associated Press v. United States5 --to which Lampert cites as evidence of the constitutional importance of diversity--involved a suit by the government alleging that the Associated Press, a private organization, violated the Sherman Act by prohibiting its members from sharing news wires with nonmembers. Associated Press argued that the First Amendment protected its right to place such limits on the distribution of wire stories. The Supreme Court rejected this argument.

The Court in Associated Press did not invoke diversity to support a government intrusion into free expression, but rather to dismiss the claim that a private entity had a First Amendment right to restrict speech. This point is brought home more clearly in the district court opinion written by Judge Learned Hand,6 to which Lampert also cites. Judge Hand discussed the role of newspapers in "the dissemination of news from as many different sources, and with as many different facets and colors as is possible."7 He then concluded:

That interest is closely akin to, if indeed it is not the same as, the interest protected by the First Amendment; it presupposes that right conclusions are more likely to be gathered out of a multitude of tongues, than through any kind of authoritative selection. To many this is, and will always be, folly; but we have staked upon it our all.8
Judge Hand's famous dictum underscores the constitutional principle that diversity comes from the unfettered marketplace of ideas and not "through any kind of authoritative selection.

According to the Federal Communications Commission (FCC), rather than mandating or even permitting governmental intrusion onto the editorial function of electronic media, "a cardinal tenet of the First Amendment is that governmental intervention in the marketplace of ideas . . . is not acceptable and should not be tolerated."9

In the case of the print media, the Supreme Court has consistently rejected efforts by the government to guarantee diversity. The Court held in 1971 that a "government-enforced right of access inescapably dampens the vigor and limits the variety of public debate."10

Only in the case of over-the-air broadcasting has the Court permitted the government to regulate media content in an effort to assure that a variety of voices are heard. In that one situation, the Court stated in 1969, the physical scarcity of the electromagnetic spectrum (permitting the operation of only a finite number of broadcast stations) necessitates that the government be permitted to ensure that the public received "suitable access to social, political, esthetic, moral, and other ideas and experiences."11 According to the Court, the government bears the burden of proving that regulations affecting over-the-air broadcasting are "narrowly tailored" to achieve a "substantial government interest,"12 a higher standard than that required in the other arenas of speech (such as print media)--"precisely drawn means of serving a compelling state interest."13

Analyzing Cable--Over-the-air Broadcast or Print Media?

Cable television falls in an uncertain category of expressive media, sharing the video medium with broadcasting, but not limited by the lack of adequate spectrum. As a result, courts have wrestled with whether cable television should be regulated under the "substantial government interest" standard applicable to over-the-air broadcasting, or under the more exacting standard applicable to print media.

According the FCC, the federal agency charged with the regulation of cable television, the most recent judicial opinions have "expressly repudiated the notion that there are specific attributes of cable television which would warrant use of a lower constitutional standard of scrutiny."14

The Commission cited to a number of cases, including the District of Columbia Circuit Court of Appeals' decision Quincy Cable TV, Inc. v. FCC,15 that the scarcity rationale has no place in evaluating government regulation of cable television and that "the analogy to more traditional media is compelling."16 The Commission also noted the decision of the Ninth Circuit Court of Appeals in Preferred Communications, Inc. v. City of Los Angeles,17 rejecting the application of a lower standard of scrutiny to cable television for many of the same reasons. According to the court in Preferred, "[i]mposing access requirements on the press would no doubt be invalid."18 The FCC concluded:

[W]e find persuasive the more recent court analyses which conclude that cable's First Amendment rights are subject to a stringent review, rather than the relaxed view used by courts for broadcasting. We do not find that the rationales for applying a lower First Amendment scrutiny standard analogous to that adopted for broadcasting in Red Lion Broadcasting Co. v. FCC, are persuasive or are sufficiently likely to prevail on review that regulations should be based thereon.19

"A Distinction Without a Difference" -- Narrowing the Gap Between Over-the-air Broadcast and Print Media

In reality, little turns on the determinations made by the FCC and the U.S. Courts of Appeals, because the concept of a lesser standard of First Amendment protection for over-the-air broadcasting is under heated attack. Spectrum scarcity has been widely challenged by Supreme Court justices,20 the Court of Appeals for the District of Columbia,21 the FCC,22 and many commentators.23 Each of these groups has called on one or more of the others, as well as Congress, to eliminate once and for all the notion that scarcity in the broadcast spectrum warrants a lower level of constitutional protection for broadcast expression.

According to the FCC in Syracuse Peace Council,24 no justification remains for applying a lesser standard to broadcast expression than to print expression. "[T]he extraordinary technological advances that have been made in the electronic media since the 1969 Red Lion decision, together with a consideration of fundamental capital First Amendment principles provides an ample basis for the Supreme Curt to reconsider the premise or approach of its decision in Red Lion.25 "Therefore, in response to the question raised by the Supreme Court in League of Women Voters, we believe that the standard applied in Red Lion should be reconsidered and that the constitutional principles applicable to the printed press should be equally applicable to the electronic press.26

In Syracuse Peace Council, the FCC noted the explosive growth in radio and television since Red Lion was decided in 1969: a 48 percent increase in radio stations and 44 percent increase in television stations. In addition, with the development of UHF television, cable television, and new video delivery technologies (including low-powered television, videocassettes, and home satellite dish antennas), the number of information outlets have increased and the structure of the industry had become far more competitive than in 1969. Contrary to Lampert's fears, cable television is not "the gateway into the home."

The Commission concluded: "the individual's interest in free expression and the societal interest in access to viewpoint diversity are both furthered by proscribing governmental regulation."27

This view was shared by the U.S. Court of Appeals for the District of Columbia. In Telecommunications Research and Action Center v. Federal Communications Commission,28 the court addressed the fallacy of relying on scarcity to distinguish broadcast and print media:

The basic difficulty in this entire area is that the line drawn between the print media and the broadcast media, resting as it does on the physical scarcity of the latter, is a distinction without a difference . . .

It is certainly true that broadcast frequencies are scare but it is unclear why that fact justifies content regulation of broadcasting in a way that would be intolerable if applied to the editorial process of the print media. All economic goods are scarce, not least the newsprint, ink, delivery trucks, computers, and other resources that go into the production and dissemination of print journalism. Not everyone who wished to publish a newspaper, or even a pamphlet , may do so. Since scarcity is a universal fact, you can hardly explain regulation in one context and not another.29

In addition, the Court noted that the argument for a distinction between broadcast and print media based on the degree of scarcity found in each was unpersuasive.

There is nothing uniquely scarce about the broadcast spectrum. Broadcast frequencies are much less scarce now than when the scarcity rationale first arose in National Broadcasting Company v. the United States, and it appears currently "the number of broadcast . . . rivals and perhaps surpasses the number of newspapers and magazines in which political messages may effectively be carried."30 Indeed, many markets have a far greater number of broadcasting stations than newspapers.31

The Court of Appeals also rejected as justification for a lesser standard of First Amendment protection of broadcast speech the government's role in defining usable frequencies and granting licences to broadcasters in order to eliminate the problem of interference.

A publisher can deliver his newspapers only because the government provides streets and regulates traffic on the streets by allocating rights of way. Yet no one would contend that the necessity for these governmental functions, which are certainly analogous to the government's function in allocating broadcast frequencies, could justify regulation of the content of the newspaper to ensure that it serves the needs of the citizens.32

Compulsory access "inescapably dampens the vigor and limits the variety of public debate"

If cable television is regulated like print media or if the regulatory distinction between over-the-air broadcasting and other media is abolished, government-enforced access is constitutionally prohibited, not required. This is consistent with the position of the United States Supreme Court, set forth in Miami Herald Publishing Company v. Tornillo,33 in which the Court held that the right-of-reply statute applied to a newspaper was "governmental coercion" and contravened "the express provisions of the First Amendment and the judicial loss on that amendment developed over the years."34 The Court also found that a statutory right of reply impermissibly "intrude[d] into the function of editors."35

Finally, the Court held that the inevitable result of compelling the press "to print that which it would not otherwise print"36 would be to reduce the amount of debate on important public issues: "[U]nder the operation of the Florida statute, political and electoral coverage would be blunted or reduced. A government-enforced right of access inescapably 'dampens the vigor and limits the variety of public debate.'"37

Irrespective of whether cable television is treated like print media, of whether the regulatory distinction between over-the-air broadcasting and other media is abolished, forcing cable operators to carry the expression of others is "governmental coercion" and "inescapably 'dampens the vigor and limits the variety of public debate.'"

Leased Access--An Idea Whose Time Has Passed

The constitutionality of Section 612 of Cable Communications Policy Act of 1984 38 has never been tested in court precisely because, as Lampert acknowledges, "in its recent comprehensive cable inquiry, the FCC was not presented with any examples of a major cable programming service or a local broadcaster denied cable access using the leased access channels to gain access to gain access to cable subscribers." Not one. The concept of leased access is dead, and for good reason.

Consider Lampert's own example of the 24-hour cable news channel that NBC wished to offer. First, it is unclear how diversity would have been furthered by requiring cable systems, the vast majority of which already carry NBC news and CNN (an existing 24-hour news channel), to carry NBC-generated news 24 hours every day as well. Second, when NBC was thwarted--perhaps as much by the existence of a successful competitor as by the interference of Ted Turner--it did not turn to the statutory leased access provisions. NBC wasn't interested in leased access. Instead, NBC reconfigured its program service into the Consumer News and Business Channel, which complements rather than duplicates CNN. The marketplace generated real diversity, rather than the duplication that might have resulted from government-enforced access.

As Lampert acknowledges, "the point is not that vertical integration or horizontal concentration are evils in themselves, for they certainly have provided the U.S. public with a rich diversity of programming fare." Broadcasting has benefitted little from FCC and Congressionally mandated rights of access. Thirty years ago, FCC Chairman Newton N. Minow called broadcast television, a "vast wasteland."39 The situation of broadcasting today is little improved.

Consider, on the other hand, cable television. Consider the richness and variety of all news (CNN) and all sports (ESPN) programming, of movies, (HBO, Cinemax, Showtime, TMC) and music (MTV, Nashville), of Congressional debates (C-Span) and nature films (Discovery). There is programming for children (Disney, Nickelodeon) and for adults only (Playboy). Consider the availability of local, educational, and public broadcasting. Consider made-for-cable movies, comedy shows, concerts, and miniseries, in addition to carriage of broadcast "superstation" signals from around the country. Cable television offers real diversity, not a government-enforced right that no program creator wants and that violates the clear meaning and consistent interpretation of the First Amendment. This is precisely what the federal District Court for the Northern District of California concluded in 1987:

The access channels forced upon plaintiff by the Cities carry the inherent risk that a frachisee's speech will be chilled and the direct, undeniable impact of intruding into the franchisee's editorial control and judgement of what to cablecast and what not to cablecast. Neither result can be tolerated under the First Amendment . . .40

 

Endnotes

1. Senior Fellow, The Annenberg Washington Program in Communications Policy Studies of Northwestern University; Associate Professor of Law, Indiana University School of Law-Bloomington; Of Counsel, Fields & Director, Washington, D.C.

2. Connick v. Myers, 461 U.S. 138, 145 (1983) (quoting Roth v. United States, 354 U.S. 476, 484 (1957)) (emphasis added); see also New York Times Co. v. Sullivan, 376 U.S. 254, 269 (1964).

3. Pacific Gas & Electric Co. v. Public Utilities Comm'n, 475 U.S. 1, 8 (1986).

4. Columbia Broadcasting System, Inc. v. Democratic Nat'l Comm., 412 U.S. 94, 145-46 (1973) (Stewart, J., concurring).

5. 326 U.S. 1 (1945).

6. United States v. Associated Press, 52 F. Supp. 362 S.D.N.Y. 1943), aff'd, 326 U.S. 1 (1945).

7. Id. at 372.

8. Id.

9. Syracuse Peace Council, 2 F.C.C. Rcd. 5043, 5056,63 Rad. Reg 2d (P&F) 541, 583 (1987) (Mem. Opinion and Order), aff'd, Syracuse Peace Council v. FCC, 867 F.2d 654 (D.C. Cir. 1989), cert. denied, __U.S. __, 100 S. Ct. 717 (1990).

10. Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 257 (1971) (emphasis added).

11. Red Lion Broadcasting Co., Inc. v. Federal Communications Commission, 395 U.S. 367 (1969).

12. Federal Communications Commission v. League of Women Voters of California, 468 U.S. 364 (1984).

13. Consolidated Edison Co. v Public Service Comm'n, 447 U.S. 530, 540 (1980); First Nat'l Bank of Boston v. Bellotti, 435 U.S. 765, 786 (1978); Buckley v. Valeo, 424 U.S. 1 (1974).

14. Amendment of the Commission's Rules Concerning Carriage of Television Broadcast Signals by Cable Television Systems, 51 Fed. Reg. 44,606, at 183 (1986) (Mem. Opinion and Order).

15. 768 F. 2d 1434 (D.C. cir. 1985) cert. denied, National Ass'n of Broadcasters v. Quincy Cable TV, Inc., 476 U.S. 1169 (1986).

16. Id. at 1450.

17. 754 F. 2d 1936 (9th Cir. 1985), cert.denied, 474 U.S. 979 (1986).

18. Id. at 1410.

19. Amendment of the Commission's Rules Concerning Carriage of Televising Broadcast Signals by Cable Television Systems, 51 Fed. Reg. 44,606, at 184.

20. See, e.g. League of Women Voters, 468 U.S. at 376 n.11; Columbia Broadcasting System, Inc. v. Democratic Nat'l Comm., 412 U.S. at 144 (Stewart, J. concurring) id. at 149 (Douglas, J., concurring).

21. See, e.g. Telecommunications Research & Action Center v. Federal Communications Commission, 801 F.2d 501 (D.C. Cir.), petition for reh'g en banc denied, 806 F. 2d 1115 (D.C. Cir. 1986), cert.denied, 482 U.S. 918 (1987); Branch v. Federal Communications Commission, 824 F2d 37 (D.C. Cir.), cert.denied, 485 U.S. 959 (1988); Meredith Corp. v. Federal Communications Commission, 809 F.2d 863 (D.C. Cir. 1987).

22. See, e.g., Syracuse Peace Council, 2F.C.C. Rcd. at 5048, 63 Rad. Reg. 2d (P&F) at 562.

23. See, e.g., Fowler & Brenner, A Marketplace Approach to Broadcast Regulation, 60 TEX. L. REV. 207 (1982); Bazelon, FCC Regulation of the Telecommunications Press, 1975 DUKE L.J. 213.

24. 2F.C.C. Rcd. at 5043, 63 Rad. Reg. 2d (P&F) 541 (1987).

25. Id. at 5048, 63 Rad. Reg. 2d (P&F) at 562.

26. Id. at 5053, 63 Rad. Reg. 2d (P&F) at 575 (citing Federal Communications Commission v. League of Women Voters of California, 468 U.S. 364 (1984)).

27. Id. at 5057, 63 Rad. Reg. 2d (P&F) at 587 (emphasis added).

28. 801 F.2d 501 (D.C. Cir.), petition for reh'g en banc denied, 806 F. 2d 1115 (D.C. Cir. 1986), cert. denied, 482 U.S. 918 (1987).

29. Id. at 508 (footnote omitted).

30. Loveday v. FCC, 707 F. 2d 1443, 1459 (D.C. Cir.), cert.denied, 464 U.S. 1008 (1983) (citing National Broadcasting Co. , Inc v. United States, 319 U.S. 190 (1943)).

31. 801 F.2d at 509 m. 4 (citations omitted).

32. Id. at 509.

33. 418 U.S. 241 (1974).

34. Id. at 254.

35. Id. at 258.

36. Id. at 256.

37. Id. at 257 (quoting New York Times v. Sullivan, 376 U.S. at 279).

38. P.L. 98-549, 98th Cong., 2d Sess., 612 (1984) (codified at 47 U.S.C. 532 (1990)).

39. N. Minow, Address to the 39th Annual Convention of the National Association of Broadcasters, Washington D.C. (May 9. 1961).

40. Century Federal, Inc. v. City of Palo Alto, 710 F. Supp. 1552 (N.D. Cal. 1987).