Parties: Denver Area Educ. Telcoms. Consortium v. Fcc
Date: 1996-06-28
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Paragraph: 6 - N142* 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 operator would have absent Government regulation.
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Paragraph: 199 - N143* Like a free-lance writer seeking a paper in which to publish newspaper editorials, a programmer is protected in searching for an outlet for cable programming, but has no free-standing First Amendment right to have that programming transmitted. Cf. Miami Herald Publishing Co. v. Tornillo, 418 U. S., at 256-258. Likewise, the rights of would-be viewers are derivative of the speech rights of operators and programmers. Cf. Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U. S. 748, 756-757 (1976) ("Freedom of speech presupposes a willing speaker. But where a speaker exists, . . . the protection afforded is to the communication, to its source and to its recipients both"). Viewers have a general right to see what a willing operator transmits, but, under Tornillo and Pacific Gas, they certainly have no right to force an unwilling operator to speak.
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Paragraph: 102 - Although indecent speech is protected by the First Amendment, the Government may have a compelling interest in protecting children from indecent speech on such a pervasive medium.
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Paragraph: 192 - N197* >We thus endowed the public with a right of access N198* "to social, political, esthetic, moral, and other ideas and experiences." Id., at 390. That public right left broadcasters with substantial, but not complete, First Amendment protection of their editorial discretion.
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Paragraph: 198 - N199* In Red Lion, we had legitimized consideration of the public interest and emphasized the rights of viewers, at least in the abstract. Under that view,N200* "[i]t is the right of the viewers and listeners, not the right of the broadcasters, which is paramount." 395 U. S., at 390. After Turner, however, that view can no longer be given any credence in the cable context. It is the operator's right that is preeminent.
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Paragraph: 218 - Cable systems are not public property. Cable systems are privately owned and privately managed, and petitioners point to no case in which we have held that government may designate private property as a public forum. The public forum doctrine is a rule governing claims of "a right of access to public property," Perry Ed. Assn., supra, at 44, and has never been thought to extend beyond property generally understood to belong to the government.
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Paragraph: 144 - N123* N124* In providing public access channels under their franchise agreements, cable operators therefore are not exercising their own First Amendment rights. They serve as conduits for the speech of others. Cf. PruneYard Shopping Center v. Robins, 447 U. S. 74, 87 (1980).
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Paragraph: 207 - N125* Under that view, content-neutral governmental impositions on an operator's editorial discretion may be sustained only if they further an important governmental interest unrelated to the suppression of free speech and are no greater than is essential to further the asserted interest.
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Paragraph: 6 - In cable, the operators (e.g.,Comcast, Cox) are the speakers, not those who create the content on public access channels nor the viewers. The majority argues that because the cable regulations at issue in the case expand content creators expression and restrict that of the cable operators, creators cannot claim abrdigment of their speech, even if the rules limit what they can do and say in their programming. N301* 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."
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Paragraph: 164 - N302* We have allowed content-based limitations of public forums, but only when necessary to serve specific institutional ends. See Perry, 460 U. S., at 48 (school mailboxes, if considered designated public forums, could be limited to mailings from "organizations that engage in activities of interest and educational relevance to students"); Widmar v. Vincent, 454 U. S. 263, 267-268, n. 5 (1981) (recognizing a public university could limit the use of its facilities by reasonable regulations compatible with its mission of education); Madison Joint School District No. 8 v. Wisconsin Employment Relations Comm'n, 429 U. S. 167, 175, n. 8 (1976) (in assessing a teacher's right to speak at a school board meeting, considering it obvious that "public bodies may confine their meetings to specified subject matter"). The power to limit or redefine forums for a specific legitimate purpose, see Rosenberger, 515 U. S., at ___ (slip op., at 8), does not allow the government to exclude certain speech or speakers from them for any reason at all.
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Paragraph: 168 - N303* N304* Giving government free rein to exclude speech it dislikes by delimiting public forums (or common carriage provisions) would have pernicious effects in the modern age. Minds are not changed in streets and parks as they once were. To an increasing degree, the more significant interchanges of ideas and shaping of public consciousness occur in mass and electronic media. Cf. United States v. Kokinda, 497 U. S. 720, 737 (1990) (Kennedy, J., concurring in judgment). The extent of public entitlement to participate in those means of communication may be changed as technologies change; and in expanding those entitlements the Government has no greater right to discriminate on suspect grounds than it does when it effects a ban on speech against the backdrop of the entitlements to which we have been more accustomed.
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Paragraph: 198 - N305* N306* when there is a conflict, a programmer's asserted right to transmit over an operator's cable system must give way to the operator's editorial discretion. Drawing an analogy to the print media, for example, the author of a book is protected in writing the book, but has no right to have the book sold in a particular book store without the store owner's consent. Nor can government force the editor of a collection of essays to print other essays on the same subject.
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Paragraph: 199 - N307* N308* We implicitly recognized in Turner that the programmer's right to compete for channel space is derivative of, and subordinate to, the operator's editorial discretion. Like a free-lance writer seeking a paper in which to publish newspaper editorials, a programmer is protected in searching for an outlet for cable programming, but has no free-standing First Amendment right to have that programming transmitted.
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Paragraph: 199 - N309* N310* Viewers have a general right to see what a willing operator transmits, but, under Tornillo and Pacific Gas, they certainly have no right to force an unwilling operator to speak.
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Paragraph: 211 - N311* Because the access provisions are part of a scheme that restricts the free speech rights of cable operators, and expands the speaking opportunities of access programmers, who have no underlying constitutional right to speak through the cable medium, I do not believe that access programmers can challenge the scheme, or a particular part of it, as an abridgment of their "freedom of speech." Outside the public forum doctrine, discussed infra, at 15-21, government intervention that grants access programmers an opportunity to speak that they would not otherwise enjoy-and which does not directly limit programmers' underlying speech rights-cannot be an abridgement of the same programmers' First Amendment rights, even if the new speaking opportunity is content-based.
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Paragraph: 233 - Also, petitioners' claim is in tension with the constitutional principle that Congress may not impose a remedy that is more restrictive than necessary to satisfy its asserted compelling interest and with their own arguments pressing that very principle. Cf. R. A. V., supra, at 402 (White, J., concurring in judgment) (though the N87* "overbreadth doctrine has the redeeming virtue of attempting to avoid the chilling of protected expression," an underbreadth challenge "serves no desirable function").
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Paragraph: 172 - N226* "[W]e cannot indulge the facile assumption that one can forbid particular words without also running a substantial risk of suppressing ideas in the process." 403 U. S., at 26. The same is true of forbidding programs indecent in some respect. In artistic or political settings, indecency may have strong communicative content, protesting conventional norms or giving an edge to a work by conveying "otherwise inexpressible emotions," Ibid. In scientific programs, the more graphic the depiction (even if to the point of offensiveness), the more accurate and comprehensive the portrayal of the truth may be. Indecency often is inseparable from the ideas and viewpoints conveyed, or separable only with loss of truth or expressive power. Under our traditional First Amendment jurisprudence, factors perhaps justifying some restriction on indecent cable programming may all be taken into account without derogating this category of protected speech as marginal.
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Paragraph: 215 - N227* Whether viewed as the creation of a common carrier scheme or simply as a regulatory restriction on cable operators' editorial discretion, the net effect is the same: operators' speech rights are restricted to make room for access programmers. Consequently, the fact that the leased access provisions impose a form of common carrier obligation on cable operators does not alter my view that Congress' leased access scheme burdens the constitutionally protected speech rights of cable operators in order to expand the speaking opportunities of access programmers, but does not independently burden the First Amendment rights of programmers or viewers.
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