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"l? 9 5 OH H?“ .. a A.” v ‘ .' . 7L3. “.‘l “g,” , \ :7 it”??? .. 35W" c'.£’;; . p1£¥i£fl‘ % ' ‘4 d‘ 1? iv ‘th t 5 a I" ; .1 4 ox ‘3 "Egg 0 78' “£15 w " revamp.» mjgfi . 3, meal” a 4 3 .§]!;E¥16»l994 3/ ‘ {07% Q 80 e001 THE CABLE COMMUNICATION ACT AND THE REGULATION OF OBSCENE AND INDECENT PROGRAMMING: A CONSTITUTIONAL COLLISION COURSE By David J. Atkin A THESIS Submitted to Michigan State University in partial fulfillment of the requirements for the degree of MASTER OF ARTS Department of Telecommunication 1986 «lam. AE§IBA§I THE CABLE COMMUNICATION ACT AND THE REGULATION OF OBSCENE AND INDECENT PROGRAMMING: A CONSTITUTIONAL COLLISION COURSE By David J. Atkin State and local bodies have, for years, debated exactly what can and cannot be seen on cable television channels. With its expanded channel capacity, cable has long had the potential to present an extended range of programming to subscriber audiences. One new format, adult fare, has been allowed to appear on cable despite regula- tions prohibiting erotica on broadcast television. Such programming may not qualify as protected speech under the First Amendment and has now been targeted for censorship. While many had hoped that this issue might be resolved by the Cable Communication Act Of 1984, restraint allowances therein directly contradict recent court rulings with regard to cable. This thesis argues that structural remedies to the problem of content regulation (e. g. channel lockout devices) obviate any need for certain content restrictions allowed by the 1984 Cable Act. Such provisions hence likely to be overturned by the courts as undue prior restraints. TO CAROLYN ii ACKNOWLEDGMENTS The writer is indebted to Dr. Thomas Baldwin, who inspired this project in his cable class and Dr. Thomas Muth, who directed its completion from a ponderous TC 910 paper to a reasonably well-ordered thesis. Both indivi- duals provided the writer with invaluable guidance in the completion of this project. The writer also extends his appreciation to Dr. Bradley Greenberg, for his encouragement and supervision of parallel research projects investigating consumption patterns for adult fare on cable. Additional thanks is also expressed for the support of Larry Collette and T-Y Lau, along with other graduate students and faculty who provided feedback on earlier drafts. Thanks also to my parents and family, for providing me with emotional as well as material support through much of this period. I only hope that the Ph.D. can go as smoothly as this. Finally, my wife, Carolyn Lin, deserves special thanks for her encouragement and prodding--without*which I might not ever have finished. I’ll race you on the dissertation. iii TABLE OF CONTENTS Chapter 1. INTRODUCTION AND DEFINITIONS . . . . . . 1 Introduction. . . . . . . . . . . Ml Definitions . . . . . . . . . . 2 The Cable Medium. . . . . . . . . 2 Cable Program Formats 4 Cable Penetration . . . . . . . 9 Notes . . . . . . . . . . . . . 11 2. EVOLUTION OF OBSCENITY AND INDECENCY REGULATIONS. . . . . . . . 15 General Media Characteristics . . . . . 16 Obscenity Standards . . . . . . . . 18 Indecency and the F. C. C . . . 21 Rationales for Broadcast Content Regulation 22 Notes. . . . . . . . . . . . . 30 3. CABLE’S EVOLVING FIRST AMENDMENT STATUS . . 33 The Ancillary Medium . . . . . . . . 34 Cable as an Active Medium . . . . . 37 Alternative Rationales for Regulation . . 39 Cable in the Late 19705—-Toward an Independent Medium . . . . . . . . 42 E1919; 3; Mi§5§§i YiQEQ ' ° ° ° ° ° 44 Cable in the 19808. . . . ‘46) Recent Decisions Relating to Cable Speech . 50 Notes . . . . . . . . . . . . . 55 4. THE CABLE COMMUNICATION ACT AND CONTENT . . 60 REGULATION Overview of Programming Provisions . . . {61 Public Access Regulation. . . . . 62 Media— Specific Rationales for Cable Regulation. . . . . . . . . . 63 Content Based Rationales and Cable . . . 67 Ascertaining Cable Expression Rights: Community Acceptance . . . . . . . 71 iv Restraints for Cable: the Commercial Use Provisions . . . . . . . . . £75,) The Tests for Prior Restraint . . . . . 75 Clear and Present Danger. . . . . . 76 Balancing Public Interests . . . . . 8Q‘ Conclusion . . . . . . . . . . . (86¢ Notes . . . . . . . . . . . . . 89 CHAPTER 1 INTRODUCTION AND DEFINITIONS Introduction Local communities, city councils and state legis- latures across the U.S. have, for years, debated exactly what should and should not be allowed on cable television channels. With' its expanded channel capacity, cable has long had the potential--and, at times, federal encourage- ment--to present an extended range of programming to subscriber audiences.1 One new format, adult fare, has been allowed to appear on cable despite gegulations prohi- biting erotica on broadcast television. Many who regard this type of programming as "indecent" would like state and 3 local governments to prohibit its distribution. Representatives of the cable industry strictly oppose these initiatives on First Amendment grounds. To date, the courts have provided only minimal guidance in this area, as the extent to which cable is protected by the constitution has yet to be consistently determined.5 Indeed, many had anticipated that the issue of cable content regulation light, once and for all, be put to rest by the Cable Communication Act of 1984 (P.L. 98-549). Yet, in the wake of this 1egislation——the first direct manifestation of Congressional authority over cable--many questions remain unanswered. This thesis will address the issue of content regulation in relation to three categories of cable programming: [1] adult pay services (e. g. the Playboy channel), [2] commercial _£or leased) access ”channels, and [3] public access channels. More specifically, the analysis will be based upon a review of the federal government interest in obscenity regulations as well as germane cable and broadcast policy. The author will then outline policy initiatives which apply to cable’s First Amendment status. From there, each ini- tiative will be evaluated in light of a proscribed set of social, political and legal criteria. The thesis will, in closing, recommend a policy initiative which best recon- ciles modern communication‘ technology with contemporary interests and U.S. Law. Definitions The Cable Medium Cable represents a form of television which bears resemblance to print as well as broadcast modes of commu- nication and has, over time, challenged the tenuously constructed legal definition separating the two. According to the classic description set forth in §99§hgggtggg:6 CATV systems receive the signals of television broad- casting stations, amplify them, transmit them by cable or microwave, and ultimately distribute them by wire to the receivers of their subscribers...un1ike ordi- nary broadcasting stations, CATV systems commonly charge their subscribers installation and other fees. More recent definitions of cable and their implica- tions for First Amendment speech will be outlined in Chapter 2. Suffice to say that cable approximates news- papers, magazines and Videocassettes in the sense that consumers must purchase the service on a periodic basis (generally by the month). Cable programmers argue that there is nothing public about the sale, as the buyer knows exactly what is for sale and exercises the consumer prero- gative to maintain or discontinue the product service. Hence patrons and operators in favor of unrestricted speech believe that cable, by virtue of its private, multichannel narrowcast function, ought to remain unfettered by content regulations. In contrast, the programs of broadcast stations come into the home through the airwaves. As such, broadcast audiences cannot protect themselves from any uninvited pro- gram content, short of turning off their receiver. This concern has, along with matters of spectrum scarcity, served as a basis for government intrusion upon broadcaster rights vis-a-vis the Federal Communications Commission (FCC). Such broadcast regulation flows, in part, from Con- stitutional provisions designed to encourage communication. The First Amendment states that, ”Congress shall make no law...abridging the freedom of speech or of the l 7 j I ’ press..f””/ Nonetheless, this protection is nowhere near absolute, nor is it applied evenly to the different mass media.8// As many students of media law note, the print media have received the most protection from government censorship under the Constitution, broadcast media the least, and cable obscenity has yet to be directly tested by the Supreme Court;2 It has, however, been tested in several lower court decisions, which will be explored in Chapter 3. gable Eresrss 29:29:; Judicial rulings aside, cable TV transmission was not covered (nor even envisioned) when the Communications Act of 1934 was drafted. That legislation forwarded land- mark provisions for the regulation of common carriers (Title 2) and broadcast (Title 3). After years of failing to regulate cable under either one of these theories, the FCC finally moved, without Congressional approval, to oversee cable under Title 3.10 When formulating the 1984 Cable Communications Policy Act (hereafter referred to as the 1984 Act), Congress created a new section for cable communications--Title 6.11 £92 99219 In doing so, Congress recognized that cable has developed program areas which are quite distinctive from broadcast. Pay TV refers to service for which the subscriber pays an additional increment, either on a per- view basis or, more commonly, by the channel. Such channels can include satellite delivered national services as well as regionally delivered services. Adult pay chan- nels (e. g. Playboy) could be defined as those which devote all of their service time to the presentation of ”R" rated movies.12 Quasi-adult channels--typically featuring these movies during late-evening hours (e. g. Cinemax)--will be considered alongside their full-time counterparts. While there are important distinctions to be made between adult and quasi-adult services, many argue that they are becom~ ing increasingly similar in the area of adult programming.13 The emergence of this heretofore taboo programming has been heralded as the major catalyst for pay cable’s prolific growth from 1975-1982.14 As this discussion implies, pay channels have been exempted from the indecency regulations governing broadcast TV.15 The manner in which the Cable Communications Act redefines these bases for state and local regulation is at the heart of the analysis in following chapters. £29119 Assess Qbseeels By comparison, commercial and public access channels are available as part of the overall "basic" service package that all cable subscribers in a given system would receive. These channels share a common regulatory origin--the 1972 Cable Television figpgrt a g Order. At that time, the FCC required systems with over 3499 subscribers to make one channel each available for public, educational and leased (or commercial) access.16 Commercial and public access programs are pro- duced by individuals not affiliated with the cable system. The purpose of these access channels is to mitigate the impact of local monopoly with respect to cable system ownership and access to cable subscribers. Unlike commercial access, public access guidelines had originally directed cable systems to offer Vtime and equipment‘ to community members, without charge, on a first-come, first-served basis. The channel was thereby designed "to offer a practical opportunity to participate 17 in community dialogue through a mass medium.” Towards that end, a key element in this concept of access was user immunity from any cable system editorial control. Yet public and leased access were to each adhere to obscenity provisions outlined in 876.213. That paradox contributed to the concept’s downfall. This, combined with cable industry opposition to the general notion of mandated local origination and access, impeded the development of public access. For, while the precursory rules mandating local origination were upheld by the Supreme Court in the so-called Midwest I18 case, the FCC withdrew them in 1974.19 This was one of many distinguishing rationales which that will be addressed within the body of the thesis. In 1979, the revised 1976 rules mandating access car- riage were challenged by the same company, and finally vacated by the Supreme Court in the Midwest 11 case.20 In reaching this decision, the Court held that these rules imposed common-carrier obligations on cable operators, in derogation of Section 3(h) of the Commmunications Act.21 Moreover, the FCC was no longer policing those access channels that were already in operation--channels available to many cable households. As of 1984, it was estimated that, of thenation’s 6500 systems, between 800 and 1000 operate one or more access or local origination channels.22 After the mandatory access rules were dropped, many states took the initiative for regulating public access. Prior to the passage of P.L. 98-549, both the access channel user and the cable system operator were often held responsible for obscenity and libel.23 This and a number of other provisions relating to public access have been changed by the Act. stssssisl Asssss thsssls Along with public access, commercial access channels have evolved from the 1972 rules (wherein they were labeled as leased access channels) and have more recently been termed commercial use channels. According to the Cable Communication Act, commercal use means the provision of video programming, whether or not for profit, by persons 24 unaffiliated with the operator. Like other access and origination channels, they serve to increase diversity on cable. However, unlike other access channels, leased access channels approximate common carriers in that the system operator sets rates while leasing capacity:25 ...the operator leases channel space to all comers at standard fees, in much the same way that satellite carriers lease transponder space. The lessee may use the channel for any type of programming that he may wish. It is this notion of ”leased" access that most readily distinguishes commercial use form other types of access. Though the history of commercial access is not well documented, many acknowledge that the format evolved concurrently in a number of different areas during the 19505. These channels did not, however, receive any federal impetus until the 1972 Cable TV Report and Order (37 FR 70)--hereinafter referred to as the 1972 rules. A This lack of regulatory form has been matched by a lack of uniformity in terms of channel formats. For instance, religious interest programmers often lease channels full-time without charging viewers or system Operators for content, which is generally carried free. Such channels may be supported by advertising (e. g. CBN) but are more often funded through private donations (e. g. PTL and Trinity). Subscribers may nonetheless have to pay an additional fee to receive these channels as part of an extended basic service package. Despite this incremental 3 payment, commercial use channels differ from pay services, 3 which charge cable system operators for their material--a :.cost that is eventually passed on to users on a per channel 'basis. But, like pay channels, leased access cannot accommo- date part-time communicators. This differentiates them 26 from other types of access, as Compaigne notes: Leased access is directed to full-time or at least long-term contract use of a major portion of of hours on a channel. For entertainment or other format con- tent, this makes business sense. But individual or group access to small units of time on an irregular schedule are not provided as was the intent of the original mandated access provisions of the FCC’s rules. These rules were, as with public access, designed to preempt the authority of state and local entities in matters regarding the operation and number of access 27 channels carried. However, as noted previously, these rules were not as clear with respect to obscenity. As a result, the commercial access carriage mandate was also 28 struck down in the Midwest II decision. After years without a consistent national policy for these outlets, the Cable Communications Act acknowledged commercial access/use channels with a distinct section of guidelines. stls Esssisssiss Proponents of cable content regulation argue that cable presents the same audience concerns as broadcast. This concern extends to access as well as pay programming, 10 though it is much more prevalent with the latter format. Across the more readily available basic format, a series of programs on a New York City access channel emphasized nudity and sexual abberations—-often without warning to subscribers.29 Surely, much of this programming would be deemed indecent (i. e. offensive to some among the audience) and hence not be allowed on broadcast TV. This relative pervasity has, in light of cable’s recent growth, 30 fueled demands for cable censorship. To be sure, domestic cable penetration, or the proportion of TV households subscribing to cable, has increased dramatically since 1975. As of Fall, 1985, 478 of the roughly 86 million U.S. TV households subscribed to cable.31 Approximately half of those cable households receive at least one pay channel. And though present efficiency considerations limit cable’s reach to areas with over 35 households per mile, conservative estimates project that cable will be received by about 50% of U.S. TV households by 1990. While the vast majority of these subscribers have access to some potentially offensive adult programming, only a few have tried to enact cable content standards. The city of Roy, UT and the State of Utah were among those who tried to make igzillegal for cable TV outlets to carry adult programming. Each of these cable censorship initiatives were found to be unconstitutional in subsequent 11 court rulings. More recently, the 1984 Act codified some of those very local program control rights that had been vacated by the courts. As the closing chapter illustrates, this apparent reversal in logic has set the stage for a "constitutional collision course." Again, to gain a full perspective on this issue, Chapter 2 outlines the extent to which the First Amendment protects other communications media from indecency and obscenity regulation. Chapter 3 examines the evolving status of cable within the telecommunication press. And finally, Chapter 4 details the offensive speech provisions within the Cable Communications Act, concluding that its broadcast-like strictures do not obtain for cable. NOTES-~0HAPTER l 1 Initially, the Federal Communications Commission had proposed that cable systems extend their service to include local origination programming. See Notice of Proposed Rulemakins. l§ Esgsg; 29 311- 2 l§ Hs§s§sss 1353- For a review of local ordinances regarding cable content see Rosemary C. Smith, "Indecent Programming on Cable Television and the First Amendment," George nghingtgg Law Reyigw, Vol. 25, No. 2, (Winter, 1979), p. 255. For a comprehensive review of general state regulation of cable, see Tom Muth. stats Intsssst is gssls Islsxisisn. (East Lansing, Mi: Michigan State University Press, 1975). 4 . Thomas F. Baldwin, ”New Federal Cable Legislation," Essls stsssissiisss Mszssins.(December. 1984). p- 44. 5 For a review of indecency regulation, see T.L. Glasser and Harvey Jassem, ”Indecent Broadcasts and the Listener’s Right of Privacy." Jsssssl sf sssssssstisg. Vol. 24. No. 3. (Summer, 1980), p. 285. The area of obscenity is summarized in John Kamp, "Obscenity and the Supreme Court: A Communication Approach to 8 Persistent Judicial Problem," stsssissiisss sss tbs Les. Vol. 2. No .3 (Summer 1980). p. 251; J. Miller and M. Beals, ”Regulating Cable Television, QQQQZEQE L;J;, Vol. 3, No. 4, (Fall, 1981), p. 641~43. 6 ys§s x; §ssthsssssrs stls stsssx. 392 U.S. 157.(1968). 7 Ds§s stsiiistissi Assessss: l- 8 Jssssh-Bsrssxsi less 2; Bilsss. 343 US 495. (1952). 9 Michael O. Wirth, Thomas F. Baldwin and Jayne Zenaty "Demand for Sex Oriented Cable TV in the USA",:Iglgggmmgni: sssisss Eslisx. (December. 1984). p. 315; See also Bss Lies Essssssssisg 99; 2; EIQIQI. 395 US 367. 1969. 10 32 EB 19332 152111 131 12221- 11 §QBE§L1 sets 3; 12 As rated by the Motion Pictured Association of America. An "R" rating indicates "Restricted; a person under 17 requires accompaniement by a parent or adult guardian." "X" indicates "No one under 17 admitted (age limit may vary in certain areas." Thusfar, there have been no ”X" rated movie services offered on cable. For a discus- sion. see Jay Brown. Essisz lbs Msziss. Beekman House. New York, NY, p. 5. 12 13 13 Paul Klien, President of the Playboy Channel, noted that general-interest pay services such as Showtime and HBO were "moving toward" Playboy in the area of adult program- ming. See Paul Klien interview, "Cable Censorship Issues," Segeetge‘ TV program, aired on the Playboy Channel, November, 1982. 14 Barry Litman and Susanna Eun, ”The Emerging Oligopoly of Pay TV in the USA.” Ielessmmseisesisss Eslisx. (June. 1982), p. 163. 15 See Heme Bss foisei less ! Eedessl Qsmmssisstiess Qemmieeieg, 567 F. 2d 9 (D.C. Cir. 1977), cert. denied, 434 U.S. 829, 98 S. Ct. 111, 54 L. Ed. 2d 89. 16 thle Isleyisies Beeest ens ster. 37 FR 30. (1972). 17 Igig., 37 FR 30. 18 . US 2 Misses: Tides. 406 US 649. 652. (1972). 19 32 EB 33392- 20 Esserel Qemmssisstiens Qsmmissies 2 Missess Hides. 44 U.S. 689, (1979). 21 Don Verska, ”Community Channels Cause Controversy," Asxesiisisg Age. (December 8. 1984). p. 12. 23 P.L. 98-549. Thomas Baldwin, erle Cemmggieetieee, (Prentice Hall, Englewood Cliffs, NJ, 1982), p. 96. 25 Christopher H. Sterling, "Cable and Pay Television," in Benjamin Compaigne, Whe Qgge the Megie, (Prentice Hall, Englewood Cliffs, NJ, 1984), p. 439. 26 1919;. 440. 27 1222 Qesle Islexisies Beesri ens stesi senses. note 16. 28 Midwest 11. senses. note 39. 29 Benno Schmidt. Freedom of the Esess 2s Esblis Assess. (Praeger Publishers, New York, 1976), p. 176. 30 §epge., note 13. 14 31 A.C. Nielsen Company, 1985. 32 Indecency ordinances were enacted by Milwaukee, Wisconsin, Roy City, Utah, and Miami, Florida. The latter two were subsequently overturned in a series of court cases which will be fully explored in Chapter 3 (see Hege Beg Qttiee y Wiikigeeg, 8 Media Law Reporter 1108, [0. Utah 1982]; Qty; EAEQEEQa 9 Med. L. Rptr. 2050 [S.D. Fla. 1983], 755 F. 2d 1415 [11th Cir. 1985]). Several state legislatures have also debated cable indecency bills (see, e.g., S.B. 192, Regular Sess., 1982 Louisiana; H.B. 2510, 35th Leg., 2d Ses.). Guidelines set forth by the state of Utah were also struck down (see Community Isleyisiss of 9299 2; Box City, 555 F. Supp. at 1164 [D. Utah, 1982]; Ceggegity Television of Utah v. Wilkinson, 611 F. Supp 1099 [D. Utah, CHAPTER 2 EVOLUTION OF OBSCENITY AND INDECENCY REGULATIONS As noted, First Amendment protections have been applied more sparingly to the broadcast media than with print. In Beg Liee, the court ruled it is idle to posit an unabridgeable right to broadcast comparable to the right of every individual to speak, write, or publish.”1 The rights of audiences and those seeking access to the medium must be considered alongside those of licensed speakers. Hence, as Glasser and Jaseem note, along with this right to hear, we’ve seen the emergence of a rightfi"not-to-hear” in the area of indecent speech.2 Since, as Chapter 1 illustrates, cable does not directly fall within one of the established media models, it is useful to examine the regulation of offensive speech from a multi-media perspec- tive. A While the traditionally restrictive latitude for electronic communication may have widened in recent years, the government presence in this area has not been entirely passive. Bazelon3 aptly summarizes the realm of action- actionable speech in broadcasting. He notes that the Federal Communications Commission commands a wide ranging and largely uncontrolled administrative discretion to discourage speech broadcast in song lyrics that allegedly 4 promote the use of drugs, to halt radio talk shows that 16 deal explicitly with sex,5 to discourage specialized or highly opinionated programming,6 to force networks to schedule "adult" programming after 9:00 p.m.7 and to restrict adverse commentary on presential speech.8 It should be noted that the bulk of these provisionsflrefermto broadcast radio, as television was not included in the original proscriptions for offensive speech. They are, however, characteristic Of a more restrictive broadcast _,_.—.——-—-" -—- Hun—‘45- www.- model of regulation which has, in past cases, been applied to cable. This chapter examines the evolution of indecency as an intrusion on the listener’s privacy rights across different telecast media. More specifically, the analysis will be based upon a historical review of the federal government interest in broadcast regulation, especially as it relates to offensive speech. The author will then compare FCC and higher court definitions of indecency and, if relevant, obscenity, with respect to cable and broad- cast. Qesessl Essie geesessesistiss The present-day elements of offensive programming were first articulated in the Radio Act of 1927 (later 18 U.S.C.A. 1464), which makes it a crime to ”utter any obscene, indecent, or profane language by means of radio 9 communication." This is, of course offset by another provision rooted in the 1927 Act (incorporated into 47 17 10 U.S.C.A. S326) which prohibits censorship. The Supreme Court later attempted to reconcile these two strictures, stating that: ...the censorship language can be read as inapplicable to the prohibition on broadcasting obscene, indecent, or profane language.ll The last of these elements has yet to be defined the Supreme Court, and the latter two are, at best vaguely 12 defined. Clearly, as Feldman and Tickton argue, we are dealing with the "regulation of ambiguity" when engaging in such inquiry. And the recent development of cable TV, with its private, narrowcast function, further complicates the regulation of the telecommunication press. Cable TV has yet to be tested by the Supreme Court in the area of obscenity. In addition to standards for obscenity, which have been applied to each of the mass media, cable would adhere to a more stringent indecent standard if analogized to broadcast TV. Much of the debate regarding cable content regulation has focused upon this point. While cable operators have little difficulty adhering to Obscenity guidelines, it seems likely that the tougher indecency standard might preclude them from airing much of their more lucrative adult movie fare. In order to better understand this indecency concept, one must first examine the obscenity standard from which it was derived. 18 stsesitx §sessesss While cable’s growth may have strengthened arguments to include it under broadcast indecency standards, the fact remains that the courts have allowed Americans to voluntarily bring other privately purchased media-- including sexually explicit books, magazines and videocassettes into their homes. But, regardless of the medium involved, the government can censor any materials deemed obscene by the courts. I When this is done in advence of publication, it is known as prior restraint. Previous cases in this area, to be reviewed subsequently, have placed a heavy burden of proof on the censor.13 As Wirth, Baldwin and Zenaty note, First Amendment protections for the print media can be overridden only if the government can show that failure to allow the restraint will create a clear and present danger to public health, morals or national security.14 Despite the presence of these control mechanisms, obscenity standards motivating such action have become more liberal during the past half-century. In Roth v. United States, the Court emphasized that —.—-—— —- ——-—-— ————-— obscenity does not fall under the realm of constitutional- 15 ly protected speech. That same court noted that "sex 16 and Obscenity not synonomous." At present, Obscenity guidelines are governed by the Miller standard, which stipulates a three—pronged test: 19 a) whether the average person, applying contempor- ary community standards would find that the work taken as a whole, appeals to the prurient interest, b) whether the work depicts or describes, in a pa- tently offensive way sexual conduct specifically defined by the applicable state law, and c) whether the work, taken as a whole, lacks seri- ous literary, artistic, political or scientific value.l7 The Supreme Court left this judgement of redeeming value to individual community standards without articulating what constitutes a community and how social standards are to be determined. Jurors must ascertain whether this material meets all three of these vague obscenity guidelines, bearing in mind prevailing standards of all adult community members, before rendering a judge- ment.18 Given this cursory definition of obscenity, one can trace the manner in which these standards have varied across different media over time. The Supreme Court has attempted to fashion a compromise between what Meyerson 19 calls "want to sees” and "don’t want to sees." As the Court noted in US gt Reidei, this compromise involves the 20 "ancient concept that a man’s home is his castle.” ' Thus, the people’s right "to be let alone" was foremost among the Court’s concerns when it upheld a law enabling indivi- duals to prevent advertisers from mailing them unsolicited 21 sexually provacative material. 20 That case, decided in 1971, was preceded in 1969 by a landmark ruling in Stegiey gt geetgie. Here the court held that the mere possession of sexually obscene matter in the home (in this case, film), was not obscene. This is true regardless of the social worth of ideas presented: If the First Amendment means anything, it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch. Our whole constitutional heritage rebels at the thought of giving government the power to control men’s minds.22 The Supreme Court has thereby attempted to fashion a compromise by allowing adults to view adult materials in their own home while prohibiting the mailing of unsoli- cited sexual materials to homes. Cable may, nevertheless, prove vulnerable to attack vis-a-vis government regulations outlawing the sale, importation and mailing Of such material.23 SO this obscenity area opens up a range of cases which has, by the admission of one Supreme Court Justice, "produced a variety of views among the members of the Court unmatched in any other, course of Constitutional adjudication."24 Many of these decisions apply uniquely to other media and hence extend beyond the scope of this essay. Those germane to cable and broadcast have been largely incorporated into indecency regulations. This more stringent indecency standard may be activated 3: words alone, even in the absence of a prurient appeal. The following section outlines the theories which the FCC 21 and the Courts have fowarded to justify this double stan- dard. Isdesessx end the £99 Broadcast media differ from privately consumed print or even cable TV media in that they eflterhomes, uninvited (i. e. without direct cost), through the airwaves. Broadcast content is hence available to to anyone with a functioning receiver. This pervasity has, along with matters of spectrum use, provided several justifications for government intrusion upon broadcaster rights which are otherwise protected by the First Amendment. The government first nationalized the electromagnetic spectrum with the passage of the Radio Act of 1927. Seven years later, in passing the Communications Act of 1934, Congress created a government agency to regulate broad- casting. This new Federal Communications Commissions (FCC) was charged with, among other things, the duty of ensuring that broadcasters serve in the "public interest, 26 convenience or necessity." Years later, the FCC gradually extended its authority over cable, maintaining responsibilities "reasonably ancillary" to its 27 jurisdiction over broadcasting. In the many FCC documents referring to offensive programming, nowhere has the Commission asserted any power to restrain or edit proposed broadcasts in advance or otherwise excise content from the airwaves. Rather, the 22 FCC commands the power to review content, maintaining a "raised eyebrow" approach with regard to license grants. The Commission provided an indecency standard in a WUHY FM complaint as material which is (a) patently offensive by contemporary community standards; and (b) 28 utterly without redeeming social value. The concept therefore differs from obscenity in that actionable content need only be proven patently offensive or in discord with community standards of morality. But, before the FCC had consolidated its purview over cable, the courts cleared the way for it to intervene in matters of content regulation as well as spectrum oversight. In an early interpretation of the Communica— tions Act, the Supreme Court held that Congress did not intend to limit the FCC’s role to that of "traffic officer" for airwave interference.29 Bsiisssles is; Assesssss senses: Beaslesies The Commission initially undertook this charge for regulation because Congress designated th9~3199£F9T§§B§Ei° spectrum ‘to bea pUblic commodity. Traditionally, the scarcity doctrine has bolstered the argument for the dichotomy in content regulation standards between print and broadcast media. This rationale is rooted in the notion that "a potentially limitless multitude of broad- casters must vie for radio and TV signals which are trans— 30 mitted over a limited number of public airwaves." 23 Scarcity was among the concerns cited by the Reg Lieg court when it noted that ”government has an obligation to insure that a wide variety of views reach the public."31 But not long thereafter, the Supreme Court noted that "scarcity may soon be a constraint of the past."32 Indeed, this prophecy has largely come to pass, as the recent proliferation of new telecommunication technologies such as cable and direct broadcast satellite have alle- viated scarcity concerns. The basis for this government authority was expressed in a parallel rationale brought forth in Beg Lieg. Specifically, the government assumes a supervisorial role, assuring "adequate and fair attention to public issues" is paid by licensees.33 Nevertheless, similar concerns regarding the diver- sity of media sources, likewise cited in Reg Lieg, were later applied to the abundant cable medium as well as broadcast. Concerns that too few media voices might monopolize the airwaves motivated measures to ensure access to broadcast as well as local cable outlets.34 This perspective is rooted in the ieeeeieted E£§§§ court’s contention for print that ”Freedom of the press from governmental interference under the First Amendment does not sanction repression of that freedom by private 35 interests.” But where Associated Press is primarily 24 focuses upon "suitable access” aspects of programming: "The consumer’s right to hear, not the producer’s right to be heard, is paramount."36 This collective rights concept, advanced by the FCC in order to prohibit broadcasters from editorializing, seems also to have been obviated by technological advances. And where it was used to justify federally man— dated public access to cable, the Miggeet ii court did not deem such regulation necessary for cable.37 Further background on the how the courts have evaluated this and other rationales with regard to pay and access channels is provided in the following chapter. Putting aside matters of scarcity, a special impact justification was advanced in Begehet. The court held that broadcasters should provide free time for anti- smoking announcements, as the electronic media carry a greater impact than the printed word. It should be noted that the Begehet court provided no empirical research to back this assertion.38 Indeed, D.C. Circuit Chief Justice Bazelon later rejected this concept as a justification for more stringent broadcast content regulation.39 In the wake of the Beeehet decision, he forwarded a recommendation that regulation of broadcasting should structure the delivery rather than the content of communications. This concept was, as we shall see, incorporated into subsequent court 25 decisions in the area of indecency. That case also advanced a captive audience ration- ale which suggests unwitting audiences may be confronted by offensive content. Reasoning that the electronic media are more obtrusive than their print bretheren, the Banzhaf court noted that the avoidance of broadcast messages requires an affirmative action.40 Closely aligned to this captive audience perspective is the notion of ”pervasive presence." This theory first appeared in a case involving the Pacifica Foundation.41 The case, appealed to the Supreme Court, involved the respondent’s radio broadcast of a monologue entitled "Words You Couldn’t Say in Public." According to Peeitiee, patently offensive material presented over the airwaves confronts people not only in public (as per captive audiences) but also in the privacy of one’s own home.42 As earlier cases involving unsolicited print materials indicate, Ithe individuals’s right to be let alone at home "plainly outweighs the First Amendment rights of an intruder."43 In bringing action against the Pacifica Foundation, the FCC argued that the broadcast in question violated both 47 USC 303 (g) and 18 USCA 1464. The Commission voiced the following concerns with regard to broadcast content regulation: (1) children have access to radios and in many cases are unsupervised by parents; (2) radio receivers are in the home, a place where people’s privacy interest is entitled to have extra 26 deference... (3) unconsenting adults may tune in a station with- out any warning that offensive language is being or will be broadcast; (4) there is a scarcity of spectrum space, the use of which the government must therefore license in the public interest.44 As in Miiiet, the Pacifica Court noted that offensive ——-—————- broadcasts with literary, artistic, political or scientific value, if preceeded by warnings, would not be indecent when aired during a later time Of day: ”Law generally speaks to channelling behavior rather than actually prohibiting it."45 Hence broadcast--and perhaps cable, by implication--may have "established a uniquely pervasive presence in the lives of all Americans."46 Aside from pervasity, the other major area of concern for the FCC and the Court was the impact such offensive content might have on children. And while the dialogue in question was held to be "patently offensive," though not necessarily obscene, these concerns remained at the fore: (The) concept of "indecent" is intimately connected with the exposure of children to language that des- cribes, in terms patently offensive as measured by contemporary community standards for the broadcast me— dium, sexual or excretory activities and organs, at times of day when there is reasonable risk that children may be in the audience.47 This concern for the interests of children represents perhaps the most pressing of the recent rationales forwarded for regulating television. When citing concerns of a pervasive presence and 27 adverse impact upon children——each of which could be ana— logized to cable--the the Supreme Court in Peeitiee over- turned a lower court holding that the FCC had traversed the "forbidden realm of censorship."48 In so doing, they addressed two statutory issues involving (1) whether the FCC violated the Federal Anticensorship statute (see Section 29 above) and (2) whether the term "indecent" was clearly defined under 18 USC 1464. The former concern was to be activated only in cases of prior restraint, which was not at issue in this instance. In regard to the latter concern, the Court noted that "the words obscene, indecent and profane are written in the disjunctive, implying that each have a separate meaning.”49 The other key concern outlined in Peeitiee involved the presentation of indecent materials to children. This point has also been activated in obscenity cases, where the Supreme Court recognized that such a definition can be modified in "permitting the appeal Of this type of [magazine] material to be assessed in terms of the sexual 50 interest...of such minors" in Qigebetg y; Neg X923- Obscenity rationales were also applied in iiiigeie Qitisess fer Assessessieg 2; E99. where a sexually oriented radio broadcast resulted in penalties for the 51 respondent station. And, as the Stegiey court ruled in regard to the sale Of ”girlie magazines," sexually explicit materials may not be sold to children, even if 28 52 otherwise non-obscene. Clearly, as Meyerson notes, when when children are involved, a lesser offense is offense 53 ' enough. This caveat does not justify unlimited censor- ship in the area of indecency, however; the Supreme Court has ruled that adults cannot be limited to hearing or 54 viewing only material which is fit for children. More generally, the Court has ruled that a communications medium’s "greater capacity for evil, particularly among the youth...does not authorize substantially unbridled censorship."55 Given these distinctions, indecent material was defined as that which is "not conforming to generally accepted standards Of morality."56 But where definition- al contexts were relatively clear for different types of content, implications for related media were not. Some had hoped that new media developments may enhance efforts to "channel” adult programming such that the needs of diverse audience segments could be served.57 But the question of how differences between radio, broadcast tele- vision and cable might motivate different treatment was left to subsequent adjudication. Thus, by 1977, the stage had been set for a direct application of these constructs to cable. Cable did not attract any major obscenity or indecency cases prior to that time, because it had not been given the opportunity to compete with broadcast in program areas such as pay 29 movies. As Chapter 3 shows, this all changed after a series Of key cases during the late 19708. From that point forward, it was cable--not broadcast--that was to bear the brunt of indecency litigation. NOTES--CHAPTER 2 l .zfied lies Assessesliss 2; E99. 395 U.S. 367.387. (1969). K>Theodore L. Glasser and Harvey Jassem, "Indecent Broad- casts and the Listener’s Right of Privacy," Journal of Bteedeeetigg, Vol. 24, No. 3 (Summer, 1980), p. 344. 3 Bazelon, David L. ”FCC Regulation of the Telecommunication Press" Deke Leg Regiegi Vol. 23, No. 2, (Spring 1975), p. 248. 4 See Isle Dreesssstisg 99; 2; E_§ F- 2d 594.603 (D.C. Cir.) (separate statement of Bazelon, C. J.), cert. denied, 414 U.S. 914 (1973). 5 §ee llllnsis Qillsess gems; is: Desessssling 2; E99. No. 73-1562 (D.C. Cir. Mar 13, 1975). 6 See Lee Roy McCourry, 2P e E Begie _eg 2d 895 (1964). 7 Broadcast of Violent, Indecent and Obscene Material,§2 Beg Redie ESE; 2d 1367, 1370-74 (Feb. 19, 1975). 8 §seses. note 4- 9 89919 As: of lQZZI §eslies 29; The Act states that: "NO person within the jurisdiction of the United States shall utter any obscene, indecent, or profane language by means or radio communication." 10 ibigi; 31 USCA §§g§. The specific provisions of the act state that: "Nothing in this Act shall be construed to give the power of censorship over the radio communications of signals transmitted by any radio station, and no regula— tion or condition shall be promulgated or fixed by the Commission which shall interfere with the right of free 'speech by means of radio communication." 11 Eeslflse Eessselles X; Esgsgsa 556 F 2d (D c. Cir. 1977) at 740. 12 Charles Feldman and Stanley Tickton, "Obscene/Indecent Programming: Regulation of Ambiguity," geyggei 9t Bteegeeet: igg Vol. 20, No. 2 (Spring 1976), p. 211. 13 Eseesses 2; §lsle sf Mesxlsss. 380 U.S. 51 (1965). Michael O. Wirth, Thomas F. Baldwin and Jayne Zenaty "Demand for Sex Oriented Cable TV in the USA," Teieeeggegi: selisss Belles. December. 1984. p. 315; see also Bed lien Bteegeeetigg Co. v. F.C.C., 395 U.S. 367, 1969. 30 31 15 Beth 2- Deites §tetes. 354 U.S. 476 (1957). 16 1919; at 476, 478. 17 Miiieg g. Ceiiteteie, 413 US 15, 1973, as cited in H Zuckman and M Gaynes. Mess Qemmsslsetlsss les 19 s Est: egeii, West Publishing Company, St Paul MN 1982 p 385 18 19191 19 See Michael I. Meyerson "Cable’s ’New Obnoxiousness’ Tests the First Amendment," Qheggeie Megeeige, (March/April 1985), pp. 40-43. 20 United §tetes !. Betsel 402 U-S. 351 (1971). 21 Stealer 21 secrete. 394 U.S. 557 (1969). 22 1919. 23 __________________________ U.S. 49 (1973); els ef Super 83g Film, 413 United States 2; l2 209 It. Be - __ U.S. 123 (1973); United States v. Ornito, 413 U.S. 139 (193) cited in Roper, R. "Lawyerly Advice: A Primer on Cable’s Right to First Amendment Protection," Qelgieyieieel May 5, 1986, pp. 36-41. 24 39229. note 19 25 39229. note 11 26 32 939A §estlss 3Q! 27 - Q3 2 §esthsestesn stle Qemeesx. 392 U.S. 157. (1968). 28 Eastern Educational Radio {WUHY-FM) 24 F.C.C. 2d 408 National Assessestisg get 2; United §tetes1 319 U~S~ 190, 217 (1943). 30 Septe., note 1 cited in Edward Jay Epstein, Nege From Nowhere; (New York: Random House, 1982), p. 141. Uléssst Ilses Es E19191. 439-40 U-S. 689. (1977). 33 §setss. note 1. 32 35 Assssletss trees 2; United §tetes1 326 U-S- 20. 36 3921911 note 1- 37 §gp[e., note 31. 38 Benshet y; {99- cited in senses. note 4- 39 ssstesl note 3 40 Septe; note 37. 41 3922911 note 11- 42 191A. 43 §BR£§~2 note 11. 44 §ER£§11 note 11; advanced in 56 F.C.C. 2d at 97. 45 Septei, note 11 at 726. 46 lbls 47 ieigi, at 749—750. 48 Sgpgei, note 11, 556 2d at 11. 49 ibig., at 729-30. 50 Qinsbesgs 21 Des test. 390 US 629. 639-40 (1968). 51 515 F 2d 397 (1975). 52 Septe, note 21. 53 §BRE§ , note 19. 54 Astles 21 Eishisss. 352 U-8 380. 383 (1957). 55 §BE£§ , note 8, Chapter 1. 56 Sepgei note 15, 556 F 2d (D.C. Cir.1977) at 740. 57 The Commission’s decision in Peeitiee rested entirely on a nuisance rationale under which context is all—important. The content of the program in which the language is used will also affect the composition of the audience, and the differences between radio, television and perhaps closed- circuit transmissions, may also be be relevant. 1g, at 728. CHAPTER 3 CABLE’S EVOLVING FIRST AMENDMENT STATUS Having profiled the definitions of obscenity and indecency, it is appropriate now to address cable’s deve- lopment as a First Amendment speaker. The federal government interest in cable seems, at times, to have been as unclear and inconsistent as its interest in offensive speech. Cable’s development has, perhaps more than any other medium, been slowed amidst the debate concerning "...special First Amendment problems...(which) each medium of expression presents."1 Bearing in mind the discussion in Chapter 2, one could locate cases involving First Amendment protection for different media along a fairly well-defined continuum. Should the government choose to apply print standards to cable, the latitude for adult programming would be wide, with programs censored if deemed obscene. Despite the paucity of cases relating to cable speech, "[WJhen the Court declared that obscenity is not a form of expression protected by the First Amendment, no distinction was made as to the medium of the expression."2 As discussed, there were some distinctions made with regard to the more res- trictive indecency standards. The question of how differences between broadcast radio or television and 33 34 cable might motivate different indecency standards has hinged upon cable’s changing First Amendment status. The Ahslllesx hesisms In the late 1940’s, towns surrounded by mountains or otherwise geographically isolated from broadcast TV service developed Community Antenna Television (CATV) in order to receive such signals. Cable developed through the 19503 primarily as a booster medium for broadcast, and did not attract much attention from either broadcasters or the F.C.C. Even after the courts had cleared the way for federal oversight in 1955, the Commission was initially hesitant to regulate cable, pending Congressional approval. In the absence of this approval, or any clear designation of cable’s its First Amendment status, the medium was included under federal purview during the early 19603.4 9sstes hesstelh 99:21 E; 999 was among the first cases to address this constitutional question. The ruling sug— gested that cable companies had no constitional right to receive microwave signals and use them to compete with broadcasters. Rather, their use of microwave facilities placed them under the F.C.C.’s authority to regulate the airwaves. After subsequent cases reinforced the federal role in cable regulation, the court extended this authority to matters unrelated to microwave use. In Buckeye Cable— 3 35 2191921 199; y; gigigi, a cable company was ordered to 5 stop importing distant signals. Cable’s First Amendment rights were again compromised. In denying cable a sepa- rate "speaker" status, the court was adhering to ration- 6 ales advanced in N.B.C. v. U.S. ; cable, by virtue of its publicly owned spectrum use, was firmly placed in the broadcast model of regulation-—even in matters unrelated to spectrum scarcity. Before long, the F.C.C. extended its authority over all CATV systems in 1966.7 Specifically, the Commission prohibited CATV in the top 100 broadcast markets if a U.H.F. station, or group interested in building one, objected to cable.8 Ironically, this constriction of cable speech proved disfunctional for many of the broadcast interests it was designed to protect. In actua- lity, cable was more likely a help than a hindrance to U.H.F., extending their reach into distant communities while offering them parity with V.H.F. channels on the cable menu.9 Elements of the F.C.C.’s Second Report and Order were each upheld in Circuit Court challenges in 1968.10 This perception of cable as a secondary service‘ was recOgnized shortly thereafter by the Supreme Court. In Essthlshtl! 21 Halted Astists. cable was not held liable for copyright, since it was not a separate media 11 "performer." While this ruling may have benefitted 36 cable’s short-term financial interests, it severely curtailed the medium’s First Amendment rights. The Court noted that cable "no more than enhances the viewer’s capacity to receive the broadcast signals."12 That same year, the Supreme Court upheld this new 13 authority in 9191 v. Sesthsestesh 9ehle 9eheshx. While this ruling did not specify any boundaries for the regulation of cable speech, it reified an "ancillary" characterization of cable that was to survive on through the early 19708. The Court forwarded this ruling despite a Circuit Court acknowledgement that the government interest was one rooted in protectionism: Beginning with indirect regulation through its juris— diction over microwave companies used by some cable systems, and exhibiting apparent hostility toward let- ting cable grow as its own ingenuity and consumer acceptance may have dictated, the Commission imposed an extended "freeze" on cable’s growth.l4 Nevertheless, the Supreme Court upheld this new authority in Seethgeetetg, stating that the FCC could regulate cable so long as this oversight was restricted to that ”reasonably ancillary to the effective performance" 15 of its regulatory responsibilities over broadcasting. Not long thereafter, we see a paradoxical concession of the scarcity rationale coupled with a justification for regulation. In Black Hills v. yigi, cable’s use of the radio spectrum—~apart from the question of scarcity--was 16 deemed pretense enough for regulation. Thus, lacking any independent status, cable proved 37 fair game for government regulation. The medium was forced into a broadcast model even after its distinguishing features had been recognized by the courts. In fact, several of these features were, over the follow- ing decade, used to justify further demands upon cable operators. 9ehle es en sstiye medium; Shortly after the Fortnightly and 9ssthsesterh cases were decided in 1968, the F.C.C. began to "explore the broad question of how best to obtain, consistent with the standard of the Communications Act, the full benefits of developing communications technology for the public with particular immediate reference to CATV technology."17 The Commission further ruled "that for now and in general, CATV program origination is in the public interest," seeking comments on a proposal to "condition the carriage of television broadcast signals .(local or distant) upon a requirement that the CATV system also operate to a significant extent as a local outlet by ori- ginating."18 In short, cable was being burdened with community interest obligations analogous to broadcasters, without receiving any of their free speech rights. As Chapter 1 outlines, the origination rules were challenged shortly after being implemented in 1970. Midwest Video Corporation contended that the rules were beyond the F.C.C.’8 jurisdiction over cable in Midwest 38 19 Video Corp; 3; gigigi, or Midwest I. Midwest, as other cable companies, regarded the rules as a burdensome intrusion on their speech. The Eighth Circuit of Appeals, in finding for Midwest, drew from the Fettgightiy assertion that cable was essentially an antenna service for broadcast.20 The rule was hence not ancillary to the F.C.C.’8 authority to regulate television. So, while cable’s inclusion into the broadcast model had previously been used to curtail programming rights, here it actually protected the medium from more active proscriptions. 21 Unfortunately, the Supreme Court in Midwest i threw out this rather well-ordered rationale; the judiciary, in choosing to boost cable from the role of a secondary medium to that of message-originator, bypassed the constitution entirely. Herewith, the goals specified were "plainly within the Commission’s mandate for the 22 regulation of television broadcasting." The high court failed to realize that, in order to remain consistent with the assignment of broadcast-like obligations, they would have to grant cable the status of an independent speaker. Ironically, in reaching this decision, Supreme Court discarded a key rationale that could justify those rules--that pertaining to scarcity. But, even though cable did not use the broadcast spectrum, federal oversight was necessary to assure that the community antenna provide a suitable mix of programming, as mandated by N.B.C. v. U.S. 39 Two years after Miggeet i, in a case reminiscent of Fegtgightiy, the Supreme Court was asked to reconsider cable’s copyright liability in leleeremet-s 21 9991 less24 Here the Court turned the clock back on cable’s evolution toward independent status. In doing so, they noted that cable’s use of these retransmitted signals was essentially "viewer function."25 However, in dissenting, Justice Douglas laid the con- ceptual groundwork for later rulings. He noted that cable was, by that time, ”equivalent to a regular broadcaster."26 Despite these sporadic misgivings, we see the accretion of a large body of material suggesting that cable was a booster medium for broadcast TV. There was very little change in this position up through the 1974 Ieieptegptet decision. The rationales for this regulation had, however, changed dramatically. Before addressing later cable cases, it is helpful to first examine the bellwether decisions' which characterized cable as an independent First Amendment speaker. Altersetixe sstisssles for regulation; As is often the case in American jurisprudence, the abberant opinions or rationales of an earlier day fuel the majority view in subsequent cases. The first case that provided a hint of cable’s emancipation was Greater 40 jurisdiction over cable the Ftegegt Court noted that there was no great difference between CATV and "newspapers 3, television, radio, books, and magazines" because they all 27 deliver news and information . Cable was hence worthy of 28 First Amendment protection. Designations as to which medium cable most closely resembled had yet to be established. But it was clear, from the force of these arguments, that cable merited some sort of constitutional status. This progressive theme was amplified one year later in 9sest Eells 9emhshity I! 9shle 991 11 £19191 Here the Ninth Circuit Court rejected a challenge to cable content restrictions. The plaintiff had suggested that the recently pronounced 39g Liee Bteegeeetieg g. F.C.C.29 decision, based upon a premise of spectrum scarcity, did not obtain for the multi-channel cable medium. While not at liberty to engage in the spectrum debate, the court noted that "nothing in 39g Lieg impairs the authority" of the judiciary in this area; other rationales, it was suggested, may be operative in this context.30 One such rationale was the collective rights doctrine forwarded in Reg tieg, wherein "the right of the public is paramount."31 The emergence of movements favoring public access to the media can also be traced this era. First Amendment theorists such as Barron, Emerson and others prevailed "when criticism of the mass 41 media was reaching a crescendo and cable was viewed as a panacea for the ills of media and even Of society."32 This collective rights concept was even extended beyond that for broadcast when several states attempted to regulate cable as a public utility. In TV Big lee; y; Ieyieg, the Nevada district court upheld this right. In short, cable’s use of public easements and exclusive franchise grant as a natural monoply rendered it a candi- date for such regulation. According to this ruling, cable did not meet the criterion of a public utility, which included (1) a significant public need and (2) si- tuation as a monopolistic or oligopolistic industry.33 While this assertion of utility status would not bode well for cable’s First Amendment interests, it begins to provide a valid justification for government regulation. It should, however, be noted that this utility model for cable regulation was struck down that same year in Fremont. Here the court found that cable lacked the ————— 34 requisite elements affirmed above in TV Pix. Popular with several states, this theory has not received much federal consideration in the area of cable since that time.35 Federal regulators have generally eschewed‘ the approach, with Congress finally outlawing such regulation in the 1984 Act.36 The cases in which it appeared did, however, raise serious questions regarding cable’s constitutional status and the rationales by which the 42 medium was to be regulated. 9ehle in the late 1929s22tssess eh ihseeshseht medium. The seemingly inconsistent case law of the late 19608 and early 19708 did not dissuade regulators from limiting the scope of cable speech while enforcing new obligations such as access. The Supreme Court, however, seemed reluctant to address directly the issue of cable content standards. Some eight years after age tipp, the Court rather ingenuously echoed the earlier case’s sugges- tion that cable might be subjected to different content standards. In Eigig; y; Peeitiee, discussed in Chapter 2, the justices chose only to speak in general terms with regard to cable indecency: The Commission’s decision rested entirely on a nui- sance rationale under which context is all-important. The content of the program in which the language is used will also affect the composition of the audience, she the differences hetseeh reels. telexisishi 999 perhaps closed-circuit 19999919919991 gey also be It wasn’t until some time later that the exact latitude for cable expression would be determined by the Supreme Court. Only one year earlier, it had refused to grant certiorari in a case involving cable’s First Amendment 37 status. That decision in HBO v. F.C.C. has nevertheless been heralded as one of the most important in the development of cable speech. The case involved a challenge to the F.C.C. restric- tions on certain types of film and sports programs 43 38 appearing on pay TV operations. In striking down these rules, the court found that the government justifications for regulation--physica1 interference and scarcity--were absent with cable.39 Moreover, the court made a footnote observation that past cable decisions not involving microwave issues--including Bpekeye and Bieek fliii§—-had incorrectly applied the scarcity doctrine.4o Of course, the inapplicability of scarcity regulations did not prompt the court to preclude cable regulation entirely. Such doctrinegwflaswwobseenitysandmtclear and Mpresentm danger," "““M‘mzn were advanced §8W§§§§£ interests that justify regulation. Each Of these will be thoroughly evaluated in Chapter 4:. Furthermore, alternative concerns regarding economic scarcity and content pervasity did not justify stringent broadcast indecency controls for pay cable content. In essence, pay services such as HBO more closely approximate a private good than a public service. In fact, the court even went “so far as to analogize cable more closely to print than broadcasting. In considering cable’s economic characteristics as an alternative regulatory rationale, the district court noted that such scarcity did not jus- tify government oversight any more thaagjt>did with news- papers in Miami Herald v. Tornillo. f Cable had, at last, been elevated from an ancillary service to an independent First Amendment speaker. 44 F.C.C. v. Midwest Video One year after gipigi, Midwest Video again challenged the F.C.C. As mentioned in Chapter 1, the Supreme Court vacated the Commission’s rules for public 43 and leased access in Highest titles 99:2; 21 £1919; 44 tMigyeet ii). In doing so, they noted that those rules imposed undue common carrier obligations upon cable ope- 45 rators, in derogation of Section 3 (h) of 42 U.S.C.A. Since this was the first Supreme Court case to strike down an F.C.C. cable regulation, and the first to address cable in several years, it is appropriate here to summarize those rules. Access content guidelines were first outlined in the 1972 guidelines (effective April, 1973) and revised in a May 13, 1976 Report included the following: access must be on a first-come, nondiscriminatory basis. But cable operators must prohibit transmission of lottery information, obscene and indecent matters and commercial and political advertising (emphasis added).46 These strictures, restraining operators from excer- cising editorial control while accepting anyone who applied, were found to put operators in a double bind; the 1976 rules forced managers to operate a public forum, restrained from excercising editorial control, while ne- vertheless obligated to suppress speech that the state deems obscene or indecent. Though profound in its implications, the Court’s 45 ruling inn Miggeet ii did not go as far as the D.C. Circuit in providing cable rights. That court went so far 47 as to liken cable systems to ”electronic publishers." The Commission does not favor us with any views as to: (1) why cable systems are not entitled to the same First Amendment rights as other private media, such as newspapers and movie theaters; (2) how compelled access to cable facilities is distinguishable, in a First Amendment context, from compelled access to broadcast facilities; or (3) how its rule...requiring cable operators to excercise prior restraint in pp; ssehityi ens eseessre st sshle sheets to lee shits re: suiting the! its access rules. can be Justified (emphasis added).48 The appellate court also evoked the "clear and present danger" test, described in Chapter 2, which is typically reserved for stronger print protections.49 Not suprisingly, the rules failed to meet this stringent test. Though useful, this test has not been widely used in cable cases; the implications of this precedent will be more fully discussed in Chapter 4. In concurring, the Supreme Court noted that cable had a "significant amount of editorial discretion 50 regarding what their programming will include." It nevertheless chose to elevate cable only to the level of broadcast. In terms of the rationales for regulation, the Court concurred with the appellate ruling in suggesting that scarcity was not an adequate justification: We are aware of nothing in the Communications Act ...which places with the Commission an affirmative duty or power to advance First Amendment goals by its own tour de force, through getting everyone on cable 46 51 television or otherwise. Further, in the words of JUdge Markey: It appears to have escaped the Commission that it is the scarcity of broadcast signals that excuses its limited regulatory intrusion in the First Amendment and other rights of broadcasters...the absence of scar- city in the increased number of channels removes the excuse for intrusion.52 In terms Of alternative rationales, the Court also threw out the collective rights rationale. For, "although the the public’s right to receive suitable access to social, political, esthetic, and other ideas and experiences" is paramount, "the public has no right of 53 access to the electronic forum." Red Lion’s laudable goal Of promoting public access did not have adequate grounding in the scarcity rationale, insofar as cable was concerned. In terms of the earlier discussion on operator rights and obligations, cable was, at last, removed from the rather unique charge to provide access on demand. Recall that only a few years earlier, the Ipppiiip Court had exempted newspapers from this burden. The debate there centered on economic rather than physical scarcity. The question of whether this distinction could be applied to the capital intensive cable industry had yet to be established. Cable in the 19808: This decision came shortly after the Commission had 47 withdrawn its earlier rules stipulating program origination, signalling a trend toward deregulation which continued through the 19708 on into the 19808. To review, since that time, the State of Utah (Hpge Des Qitise xi Eilhihseh). the city of Roy. Utah (9ehhshit2 54 Television v. Rey City) and the city of Miami (Cgpe yi Feppe) forwarded stipulations restricting the scope of 56 content on their cable systems. Specifically, each involved attempts to control obscene and indecent program- minge-not unlike those in Utah’s Cable Television Programming Decency Act (overturned in Hepe Bey Qitiee y; Wiikipeep, or Wiikipeep). The Utah Act classified "indecent material" as: a visual or verbal depiction, display, representation, dissemination, or verbal description of: (a) A human sexual or excretory organ or function; or (b) A state Of undress so as to expose the human male or female genitals, pubic area, or buttocks, with less than a fully opaque covering, or showing of the female breast with less than a fully opaque covering of any portion below the top of the nipple; or (c) An ultimate sexual act, normal or perverted, actual or simulated; or (d) Masturbation which the average person applying contemporary commu- nity standards for cable television or pay-for- viewing television programming would find is presented in a patently offensive way for the time, place, manner and context in which the material is presented.57 The wording of this statute makes it a crime to cablecast nudity in any form, even if not obscene. In so doing, the measure attempted to apply the local standards associated with Miiiep towards what is essentially an indecency test. 48 The State of Utah advanced the Pacifica claim that such regulation was necessary because minors might be in 58 the audience. This rationale was not accepted, however, as the District Court reified other lower court assertions of cable protection. The court chose to follow a print regulation approach, rejecting the stringent Eeeitiee standards in favor of the obscenity guidelines set forth in Miiiep. In addressing the concern regarding minors, the court cited gptieg y; Miehigep’s59 holding that adults should not be limited to viewing that which is appropriate for children; this same rationale was forwarded three years later in when the D.C. again overturned a revised 60 Utah initiative in 9ehhshity lelexisish 21 Eilhihssh- Both rulings noted that adult programming is not aired until after 8:00 p.m., and hence channelled away from probable viewing by unsupervised children.61 In differentiating cable from broadcast, the Eighth District Court noted that it is wrong to discriminate against cable when similar material is available from other technologies.62 The fact that Utah’s statute banned non-obscene material was a key to the court’s holding of unconstitutionality. That same district court vacated Roy City’s local ordinance banning obscene and indecent programming. Here the geppppity IV court found that cable’s distinctive transmission mode, subscriber nature and control over 49 63 reception rendered broadcast regulations unnecessary. They took pains to point out that cable TV subscribers receive program guides to determine content appropriateness. Moreover, cable did not share the 64 "pervasive presence" attributed to broadcast in Eeeitiee. In terms of the specific ordinance, the court found that Roy’s strictures for obscenity were constitutionally 65 overbroad and likely to inhibit protected speech. Specifically, the measure lacked Miiieg elements including an average person test, community standards, and consideration of serious literary, artistic, political or 66 scientific value. The lower court ruling one year later in Qppe was even more strongly worded, implying that all municipal attempts to regulate indecent programming would be found unconstitutional.67 The Eleventh Circuit agreed, echoing district court contentions that viewers can control their TV environment through parental mediation of Children’s viewing, use of program guides, and in choosing whether to subscribe to cable.68 The presence of such technical means as channel "lockout" or lockbox devices render this control greater than it is for broadcast. In fact, the district court went so far as to term this new control a "deathegnell" for Eeeitieeie applicability in the realm of cable. The 1985 circuit court ruling in g; z is still the 50 only high court treatment of the cable indecency issue. It seems that the Supreme Court’s reluctance to address cases such as HBO suggests an unwillingness to comment on cable’s First Amendment rights. It may well be that the Court is not anxious to affirm lower court approximations of cable to newspapers. Some believe that this hesitancy, combined with its rulings in related areas, indicates the Court favors a broadcast model for cable speech.70 Beseht decisions relating to sehle speech; The same year that Rey and Wilkipeep were decided, the Tenth Circuit 9snmsnitx 9ensshisstisns 991 V- 9itx st 71 " Boulder tgpeigep iii forwarded a more limited First Amendment view for cable. Much of the debate centered upon the city’s attempt to prevent Community from expanding its service area.72 The company had been given a city-wide franchise. After the city revoked this franchise, the company challenged the ordinance on consti- tutional as well as anti—trust grounds. The city coun— tered by arguing that the cable system was a natural monopoly and grants to rival companies were needed to protect the public First Amendment interests.73 In the precursory District Court ruling with Bppiget i, the city ordinance was found to be unwarranted because cable, like print, could not :2 regulated on the basis of economic or spectrum scarcity. Upon reconsideration in Boulder II, the Tenth Circuit rejected the earlier 51 approximations of cable to newspapers. The court suggested that it was improper "to summarily apply to cable operators the First Amendment principles governing newspapers.”75 In essence, cable companies are more closely tied to the state by virtue of its use of public streets and tra- dition of government regulation.76 More importantly, cable’s distinctive natural monopoly, potential for technological change, and potential applications snob as two-way communication justify greater government involvement.77 At about the same time, though, the Rey court did not find these distinctions compelling enough to warrant content regulation. The technological distinctions between cable and 78 This case involved a challenge to state regulations mandating access channel carriage, not unlike the those at issue in ‘Miggeet ii. The one important difference is that, in this case, the access rules were found constitu- tional. Of interest in this case is the rationale that the court used in justifying the access requirements. The dis— trict court took exception to Miggeet ii’s approximation of cable to newspapers, stating tbs; each warranted its own distinct First Amendment status. As in Bpeidep ii, the court cited cable’s tradition .VJ" 52 of government regulation and use of public thoroughfares as justifications for federal and municipal review.80 Moreover, the rules were reconciled with Teppiiip’s rejection of print access. A lack of access to a newspaper would not preclude audience access to the print medium, whereas, such is not the case for cable.81 With this argument, the court was reintroducing the notion of economic scarcity as an excuse for regulation. The fact that the scarcity was economic rather than physical was not of interest to the court; it was scarcity, per se, that justified government oversight.82 Since there was not a cable equivalent to the handbill, economic scarcity could effectively supplant physical scarcity as a regulatory rationale. Cable’s First Amendment status was again compromised in a case involving commercial speech, eritei Qitiee yi C;i§p.83 At issue was the state of Oklahoma’s right to prohibit cable systems, along with broadcast outlets, from showing liquor advertisements. It was overturned on appeal to the 10th Circuit. In each case, the final decision centered upon the test for commercial speech rather than any possible cable exemptions from the advertising ban. What is significant for the purposes of this discusSion is the fact that cable was, along with other media, subject to that law after the appeals court overthrew a district court challenge to the rules. 53 More recently, in yet another case involving cable franchise grants, the Ninth Circuit explored certain rationales for government regulation of cable in Ppeteppeg 9snmshiseti9991 199; 2; ice Anzeles- Here the court affirmed other holdings that scarcity is not an adequate justification for federal oversight of cablecasting.84 Perhaps more strikingly, they noted that certain forms of franchising may present unconstitutional prior restraints on cable speech.85 This echoes the court’s general hold- ing that cable is worthy of First Amendment protection, but the medium’s rights must be balanced against those of the public. The case did not, however, focus upon potentially unprotected areas of speech. In another 1985 case, vacating the "must carry" rules for cable in Qpipey Cepie 12; y; gigigi, the D.C. Circuit dismissed scarcity rationales as a justification for regulation.86 The elimination of these burdensome broadcast channel carriage rules represented a step forward in speech freedoms for cable operators. These recent holdings in the tangential areas of commercial speech, channel carriage and franchising suggest that the Court might place cable somewhere between broadcast and print media in terms of speech protection. Nevertheless, the spate of federal district court rulings in recent years--comparing cable to an electronic publisher-~raise questions as to the survivability of 54 local obscenity and indecency regulations. Most recently, the Cable Communications Act redefined the roles of federal, state and local regulatory bodies in such instances.87 This Act, which will be treated in the concluding section, carried provisions greatly expanding local powers in regulating all types of cable programming. CHAPTER 3--NOTES 1 Joseph Durstyn. 199; 2st Eileen. 343 0-8. 495. 503, (1952). 2 heeleh 2s; 9sliisrhie. 413 U.S. 115.119 (1973). 3 9lsrhshssg Euhlishing 991 Es 91919;. 225 F .2d 511 (D.C. Cir. 1955) was the first federal court case to address cable. While cable had not been deemed a regulated medium, the court here suggested that it could be considered as such. The Comission was, however, initially unwilling to regulate cable, as evidenced by its position in Esehtier Brsessesting 9e; 21 9ellies. 24 F.C.C. 251. 16 R.R. 1105 (1958); Report and Order on CATV Repeater Services, 26 F.C.C. 403, 431 (1959). 4 386 F. 2d 220 (D.C. Cir. 1967). Only two years earlier. the Court in lsshs hisressye. less 21 999191 threw out a plaintiff’s challenge to the F.C.C.’s non- duplication rules (see Eipet Repept egg ngeg, 38 F.C.C. 683 [1965]. Again, cable was denied full First Amendment freedom by virtue of its reliance upon the publically- owned spectrum resource. 5 hssheye 9ehleyisienl 199; 21 £99191. 387 F.2d 220 (D.C.Cir. 1967). yipeg; y; 919;. 319 U.S. 190 (1943). §essns Resort and 92922.. 2 F 0-0. 2d 725. 6 H.B. 2d 1717 (1966). 8 ipig., cited in Thomas Baldwin and Steve McVoy, Cepie Cpppppieetipp, (Englewood Cliffs, N.J.: Longman, 1983), p. 169. 9 lhié- 10 This view that cable was not a separate "speaker" was upheld in three circuit court cases decided in 1968. Each involved challenges to the F.C.C.’s i966 Second Bepept and Order. They included Black Hills Video Corp; ——— —-—-— -—_-— —-—_— —_——— -—— y; gigigi, 399 F. 2d 65 (19th Cir. 1968), cert. denied, 393 U.S. 858; Cepiey Electronics Corp; v. thigt, 394 F. 2d 620 (10th Cir. 1968), cert. denied, 393 U.S. 858; Iitssyille 9ehle 1!. ins; y; Dhites §tetes. 404 F- 2d 1187 (3rd Cir. 1968). On each occasion, the courts held that the scarcity rationale was sufficient to warrant regulation. 11 392 U.S. 39 (1968). 55 56 12 ipig; at 399. 392 U.S. 157 (1968). 14 lhigsa at 157- 15 §pp;e, note 13. 16 ULSL y; Bieek Hiiie, 404 F. 2d 1187 (3rd Cir. 1968). 17 Notice Of proposed Rulemaking, i5 gigigi gg 4i]. 18 lhiéo 19 409 U.S. 649 (1972). 20 Specifically, the court reiterated the Eeptpightiy assertion that "essentially, a CATV system no more than enhances the viewer’s capacity to receive broadcast signals." See Midwest Video Corpi y; Eigigi, 571 F. 2d 1025. ‘ 21 -191 2; highest Eioeo. 406 U.S. 649. 659 (1972). 22 1919. at 649. C.‘ 91919; X; leleoronoter. 476 F. 2d 338 (2nd Cir.. 25 leleoroooter 2; 91999;. 415 U.S. at 408. 26 Ibid. at 416. 302 F. Supp. 652 (N.D. Ohio 1968). ipig. at 657. 393 U.S. 367 (1969). 30 9reot Eells 9ohnonit2 I! 9ehle 9o; 21 £19.91. 416 r. 2d at 241. 31 Septe., note 29. 32 Benno Schmidt. Freedom of the Eress 2s thlis Assess. (New York: Preager Publishers, 1976), p. 176. 33 I! Pix v. Teyipp, 304 S. Supp. 459 (D. Nev 1968), eitig yep., 396 U.S. 556 (1970). 57 34 §pppe., note 27 at 665. 35 Cable Communications Policy Act, Section 621 (c). For a complete history of the early state and local applications of such rationales as the utility model, see Thomas Muth, §pppe., note 3, Chapter 2. 36 Eeoerol 9ommonisetioos 9onmissioh 21 Eesitise Eeppdetipp, 438 U.S. 728 (1977). 37 flppe Bey Qttiee; 1992 v. Federal Communications 9ommissioh. 567 F. 2d 9 (D.C.-Eir.—1977l: 99291-9991-535 U.S. 829 (1977). 38 91 91EABA 9 2919931 191229 (1975). 39 567 F. 2d at 45, n. 80. 40 ipig at 48. 41 191g. at 48; a discussion Of these concepts is included in Chapter 2. ‘93» 1g. at 46. 43 Report and Order in Docket No. 29528; 599 gigig; 2g 229 (1976). 44 439-40 U.S. 689 (1979). 45 ibig. at 1435. 46 §BPE§°¢ DOte 43; £2 92223; Z§2g§§ (1976)- 47 571 F. 2d 1056. 48 ipig. at 1055. 49 ipig. at 1053. 50 440 U.S. at 707. 51 Seppe., note 44 at 651. 52 lhio 53 ibig. at 689. 54 Home Box Office Inc. v. Wiikipepp, 531 F. Supp. 987 -—a—- -—— —-—..~- ---- a- (D. Utah 1982); 9ommuoity lelesisioh oi 9tsh. 192; 2; City 9! Rey, 555 F. Supp. 1164 (D. Utah, 1982). 58 55 9:9; y; Eeppe, 9 Med. L. Rptr. 2050 (S.D. Fla. 1983). For a full listing of more recent cases and the ordinances to which they were applied, see euppe., note 32, Chapter 1. 57 9omnsoity lsleyisioo oi Htah loss v. __ Eilhiosoo. 611 F. Supp. at 1100. 58 531 F. Supp. at 996. 59 352 U.S. 380 (1957). 60 Shots . note 58 at 996; 9onmohit2 I! 2; Eilhioson. 611 F. Supp. 1099 (D. Utah, 1985). §ppge., note 58 at 1170. ipig. at 996, n. 18. 555 F. Supp at 1167. ipig., at 1169. ipid., at 1171—73; discussed in Rosemary C. Smith, Programming on Cable Television and the First Amendment.5l 9eorze hashioston lss Besies. (1983). p. 254. 66 ipig. at 1169, n. 23. 67 9:92 2; Eerre. §BE£§~. note 55; 9r_s 21 Eerre. 755 F. 2d (11th Cir. 1985). 68 ibid. at 2056. 69 ' 1919- 70 Pat Parsons, "Toward a theory of cable rights." Paper presented at the Association for Education in Journalism, 1986 Conference, Norman, Oklahoma. 71 gigig; y; Beeigep, 485 F. Supp. 1035 (D. Colo.), rev’d 630 F. 2d 704 (19th Cir. 1980) (Bepidep i); gigeg; y; Bppigeg, 496 F. Supp. 823 (D. Colo.), rev’d 7 Med. L. Rptr. 1993 (10th Cir. 1980), rev’d 50 U.S.L.W. 4144 (1982) (Boulder ll). 72 571 F. 2d at 1372—74. 73 ipig. at 1376. 59 74 630 F. 2d at 709 (1980). 75 7 Med. L. Rptr. at 1997. 76 ibid. at 1998. 77 ipig. at 2000. 78 9 Med L. Rptr. at 2326 n. 7. 79 ipid at 2329 cited in epppe., note 10. 80 ipig at 2326. 81 ibig at 2328. 82 ipid at 2329 83 699 F. 2d 490 (1983). 84 Ereierreo 9omnohisotiohs. loss to los Angeles. 754 r. 2d 1996 (9th Cir. 1985). 85 Quincy 9ehle 1!. 199; 21 Eedesel 9onhonisstioos Cppmieeipp, 768 F. 2d 1434 (D.C. Cir. 1985). 87 §BPE§-a note 35, Sections 612, 624 and 639. CHAPTER 4 THE CABLE COMMUNICATION ACT AND CONTENT REGULATION As Chapter 3 suggests, cable speech has been ele- vated, with some reservation, to a level approaching that Of newspapers. The fact that Congress could even consider legislative content standards for cable, however, attests to the limits of this protection. This chapter analyzes the 1984 Cable Communication Act’s provisions for the regulation of offensive programming. Part I examines the provisions for indecent programming, suggesting that allowances for local content regulation are improperly based upon a broadcast model. Part II evaluates the rationales advanced for cable regulation, arguing that cable more closely resembles a newspaper than a broadcast outlet. Part III outlines the extent to which provisions for franchise authority review of commercial access programming might be construed as a prior restraint, and whether its exercise would be in accord with recognized procedures for such censorship. From 9191 9l93 end 9199 to Ell; 992993 The Cable Franchise Policy and Communications Act Of 1984, comprising a set of amendments to the Communica- tions Act of 1934, was several years in the making. Constructed amidst a deregulatory atmosphere, the bill is 60 61 more concerned with accommodating existing channel arrange- ments than encouraging new ones; there are no revolution- ary access mandates, such as those described in Chapter 1, forwarded by the F.C.C. only a decade earlier.1 The measure nevertheless carries guidelines concerning the operation of commercial use (or access) channels separate from those devoted to public, educational and government access. In casting the cable bill, Congress was forced to confront a number of conflicting interest groups. For instance, Kleiman notes that constituents of the National League of Cities were not able to reach a consensus regard- ing the appropriateness and potency of an indecency provi- 2 provision. . Mindful Of the recent rulings in Utah and Miami, many municipal leaders were Opposed to restrictions of non-obscene material. The legislators themselves became involved in the debate, as anti- indecency groups such as Morality in Media forced the inclusion of content provisions. 92erxies of programming orozisiohs The scope of this bill extends far beyond structural rules concerning access. For, despite recent rulings overturning local cable content guidelines, the Act speci- fies that local franchise authorities may articulate content guidelines for general channel carriage. They may, along with the cable operator, prohibit the carriage 62 ‘ Lsghwv‘ of services which are "obscene,-oressare otherwise 5' 3 :3 unprotected by the Constitution.54£_fl ms oreover, "to restrict the viewing of programming which is obscene or indecent," the cable operator must provide (by sale or lease) a lock—box device by which the subscriber "can prohibit viewing of a particular cable service."4 In terms of general programming, Section 624 states that nothing precludes a cable operator and franchising authority from excluding services which are "obscene or 5 H are otherwise unprotected by the Constitution... Section 639 specifies the penalty for cable operators and programmers with regard to obscenity, making the cable Offense punishable by a maximum $10,000 fine and two years 6 in jail. Recall that, according to Miiiet, offensive sexual conduct must be defined by state law. And while the stringent indecency standard for broadcast is more uniform, the 1984 Cable Act incorporates both of these concepts.7 It thereby places cable closely alongside broadcasting in terms of content regulation. thlis assess regulation Aside from that, the system operator is precluded from excercising any editorial control over transmissions on any cable channels. In the case of access, this relieves the cable operator from any liability for obscenity based- complaints arising from public access 63 channels. That responsibility now rests solely with individual channel users. And though such channels are no longer federally mandated, franchising authorities may require the provision of public, education and government access channels, 8 This may be done at the time of franchise applications or renewal. In widening this latitude for local regulation of public access, Congress was acknowledging the need to restrict this most open of broadcast forums. Central to that regulation is a statement of several key rationales. Those pertaining generally to obscene content were developed in cases mentioned in Chapter 2. Those relating to the cable medium were outlined in Chapter 3. All of these can and have been used to justify government oversight for cable programming, and each has been used to justify government oversight. It is appropriate now to briefly evaluate these theories and see whether any might save the argument for applying indecency standards to cable. hedia:soesifis rationales for sable regulation The fact that the constitution specifies' that "no law” shall abridge freedom of speech has obviously been compromised with cable as well as other other media. Nevertheless, where Offenses including obscenity, sedition and libel are prohibited across a range of different media, added rationales are needed to justify protected speech such as indecency. While the Act’s 64 strictures regarding obscenity seem constitutionally sound, those regarding indecency and ill-defined terms such as "lewd" and "lascivious" seem open to question. Indeed, it seems as if regulators are working backward. They begin with the assumption that cable content must be regulated, and are then compelled to construct a set of rationales in order to justify that oversight. This section will examine regulatory rationales which could support the Act’s use of these terms, especially those concerning protected speech. By way of establishing a general government presence in cable speech, Courts such as Bepigeg ii have eschewed certain rationales while nevertheless denying cable print- like protections. In doing so, they have joined various regulators in that quest to find imperatives that could ex- cuse state intervention. While many were originated in the related areas of copyright and franchising, they may be extended, by analogy, to cable content. Physical scarcity is among the oldest of these, continuing to play a significant role in the realm of broadcast. But, as most of the more recent rulings reviewed in Chapter 3 suggest, technological advances render scarcity concerns obsolescent in cable. Of course, one could follow the Beekehipe ye 39239 court’s provocative contention that economic scarcity is a substitute for physical scarcity. Future courts may, 65 however, encounter difficulty in maintaining the tenuous balance between cable and newspapers; Teppiiie’s prohibition of newspaper access may provide a line of attack upon the Act’s allowance of local rules favoring access carriage. Content guidelines for commercial use channels may be likewise fall under attack from Teppiiie. On balance, though, economic scarcity seems one Of the more promising justifications for locally requested channel carriage. Whether this can be extended to speci- fic content prohibitions is still in question. Other rationales seem to owe as much to utility regu- lation as they do to broadcast. As Muth notes: (b)ecause the approval involved public streets, rights of way and lands, local governments considered their act of permitting use to be a franchise.9 Recall Bettepipe also forwarded rationales based upon cable’s use of public lands and tradition of regula- ion. While these might potentially be applied in defense of the Act’s indecency stipulation, the latter seems wholly inadequate; one cannot perpetuate a potential injustice simply because it carries the force of legisla- tive tradition. As outlined in the previous chapter, changes in regulatory policy have been motivated. by changes occurring with regard to the medium itself. That tradition was, nonetheless, rooted in a set of rationales linked to cable’s public utility characteristics. While perhaps more firmly based, this concern over 66 public land use, seems limited in scope. At best, it could be used to justify structural regulations (which, along with those addressing two-way service were mentioned in Bppigep). One takes a quantum leap, however, in assuming that a limited structural pretext for government oversight (e. g. utility pole use) justifies state regu- lation of speech. Some of the arguments forwarded in the debates over mandatory access and cable’s status as a natural monopoly, mentioned in Chapter 3, seem appropriate here. As Parsons notes, government consent needed for cable’s public domain use does not differ substantially from 10 business laws effecting newspapers and magazines. But such laws do not, in those cases, justify government control of newspaper content or the licensing of magazines. Though the Midyeet ii court stopped short of making this point in vacating common carriage requirements for cable, public use rationales do not excuse content oversight. It was not evoked in Utah or Miami cases. In sum, technology has obviated the scarcity rationale for the regulation of protected speech; other cases have criticized the natural monopoly and collective rights rationale. The only remaining perspective, rooted in cable’s use of public easements and streets, provides scant justification for broadcast-like indecency controls. 67 Content based rationales and cable The Act’s prohibitions regarding indecency may have been rooted in the nuisance rationale forwarded in Eeeitiee. Another key concern outlined in that case involved the presentation of indecent materials to children. This point has also been astivated in obscenity cases. such as 9insherg Es Hen Xorh- One might, however, presume that children reside in the audience at all reasonable hours Of the day. Constraints based upon this fact would deny more mature audiences access to adult themes at their convenience. And in terms of indecency, the Supreme Court has ruled that adults cannot be limited to hearing or viewing only material which is fit for children.12 More generally, the Court has ruled that a communications medium’s "greater capacity for evil, particularly among the youth...does not authorize substantially unbridled censor— ship."13 The Act’s provisions allowing ~franchise authority review of cable content stand in stark contrast to this ruling. For individuals worried about the appropriateness of harmful speech, the Gipepepg court held that parents are primarily responsible in determining whether their 14 children should see certain materials. The lock-box should prove a helpful device to parents hoping to channel the receipt of such material. Of course, such a device 68 will not prevent one’s neighbor from viewing the material or exercising similar mediation when s/he is visited by a child. Such risks, however, are a necessary concomita of free speech. As the succeeding discussion on prior restraint suggests, attempts to censor speech often prove more harmful than the speech in question. This is certainly true of protected speech such as indecency. Nevertheless, the Court is not likely vacate the Act’s indecency provisions until it is ready to affirm lower court rulings elevating cable’s constitutional status to that of newspapers. As Chapter 3 intimates, the Court seems poised to do so. The Utah and Miami rulings clearly pave the way, illustrating that cable’s private subscriber nature, efficient spectrum use, electronic control, and program guide availability should exempt the medium from such regulation. Given that fact, then, it is unlikely that child-based concerns would justify indecency regulations. If Cppg did, in fact, ring a "death knell" for Eeeitiee in cable, it was not heard by legislators. Judicial hearings should prove more sensitive to that cable precedent. More generally, some have difficulty accepting the Peeitiee premise that broadcast is an unwanted intruder of the privacy of the ggme--preferring instead to liken it to an invited guest. Surely, cable would qualify as a special guest with respect this privacy analog. For this 69 medium is a guest who will patronize only the homes of subscribing members, charging them an extra monthly appearance fee, in the case of indecent pay channels.16 While cable content is generally not as pervasive as that mentioned in the plurality of Peeitiee, these concerns may still obtain in communities where there are fewer than three channels available; that is, a household which might not otherwise do so may need to subscribe to basic cable in order to effectively receive TV service. Though there may be no easy solution to this problem, one can look to enhanced channelling potential of cable to find at least a partial solution. Individuals living in such communities may, along with other concerned non-pay subscribers, use program guides and electronic control devices to safeguard their privacy. Another prominent critique of adult programming stems from the feminist conception of pornography. While legal definitions of obscenity emphasize prurience and community standards for appropriateness, the feminist conception of pornography focusess on a broader question of whether such material presents women as targets of sexual pleasure through brutalization or degradation.17 Here the concern lies not so much with privacy as it does behavioral consequences of exposure. Here again, since pay cable programming does not feature "X" rated movies, which are the most likely domainééif 70 for such material, it is unlikely that it would incite violence against women. To the extent that it might insti- gate antisocial behavior, proponents of censorship would be hard pressed to prove that cable’s adult fare is any more caustic than the sanitized violence which characterizes network TV. The body of research in this area is, however, consi- derable and bears some mention. When the 1970 Commission on Obscenity and Pornography concluded that there was no evidence that such fare bore any antisocial effects, many regarded the finding as premature. Since that time, Malamuth and Donnerstein have found that pornographic films which combine sex and viséence can sexually arouse heterosexuals, especially men. This material has also been found to have a desensitizing effect on men with 19 regard to perceptions of rape. Specifically, when men view aggressive pornography, their own aggressive 20 tendencies are increased, but only against women. These findings represent only a small segment of the literature on pornography, or obscenity. At the very least, they provide substantial backing for present prohibitions against obscenity. These findings do not, however, obtain for all forms of adult material. As Einsiedel notes in her review Of experimental research, non-violent portrayals of adult material, such as those featured on cable, do not inspire 71 21 antisocial acts. Thus, the courts would be in error if they were to cite this research literature as justification for the Act’s indecency provisions. Further provisions regarding the dissemination of more question- able speech which is not protected by the constitution are discussed in the following section. Ascertaining sable esoression rights; sonnonity asseotanse Of course, the entire debate on cable indecency is based upon the assumption that cable is a broadcast outlet. But if one accepts the recent approximations to the print model, these concerns regarding adult channels would be eliminated. The only remaining issues would be those pertaining to the constitutionality of such content. One must ask how courts interpret cable’s adult offerings in light of obscenity guidelines discussed in Chapter 2. Again, as with other media, the determination of potentially offensive programming is left to community standards. A key question, then, concerns whether or not sexually oriented programming that appears on cable is accepted by the community. The answer appears to be a qualified yes, at least insofar as adult channels are concerned. One could take the adult pay channel subscription figures, ranging from 20% to 60X of TV households in some areas, as a strong case for community acceptance. Sales figures such as these have been used by the courts as evidence of 72 22 community acceptance in related cases. Recall that obscene material must prove offensive to the community as a whole--not simply segments therein. Research conducted in Colombus, OH revealed that a sizable segment of the cable subscriber community--over 30 percent--purchased 23 adult movie programming. While still a minority, the presence of this sizable "adult-fare" segment could well undermine any "average person” findings against such content. As the authors note, this striking degree of community acceptance--shared among several cable systems-- is not very encouraging for those who would advocate adult movie channel censorship. Survey research has yet to address this concern as it relates to access channels. Thus, the consumer verdict regarding cable program- ming is, at worst, uncertain--if not positive. has, nevertheless, cleared the way for content in several communities. Given this curtailment sion, one must consider another facet of First freedom which the Act threatens--the public's receive "suitable access to social, political, moral and other ideas and experiences" from the 24 forum. The Act censorship of expres- Amendment right to esthetic, electronic Of course, adherence the pure speech approach speci- fied by that dicta may, in time, allow the presentation of Offensive, hateful speech. Nevertheless, such risks accompany a free and open exchange in marketplace of 73 ideas. More generally, in the words of Justice Potter Stewart: The consequences of rigorously enforcing the guaran- tees of this First Amendment are frequently unpleasant. Much speech that seems of little or no value will enter the marketplace of ideas, threatening the level of our social discourse and, more generally, the sere- nity of our lives. But that is the price to be paid for constitutional freedom.25 Though conventional broadcasters claim to be providing the public with exactly what it wants from TV, the recent proliferation of new technologies such as cable and satellite distribution suggest that such might not be the case. The latitude for prior restraint offered by the Cable Act, if allowed to stand, should have a chilling effect upon the diversity of viewpoints presently carried on cable. A8 Justice Brennan’s dissent in Beeitiee suggests, restrictive content standards can hardly be con- sidered Objective in their intent; rather, they act to suppress opposition to the status quo, providing an indirect catalyst towards social conformity: it is only an acute ethnocentric myopia that enables the court to approve the censorship of communications solely because of the words they contain.26 While this Observation was made with regard to radio, the same could be said for the images that accompany those words on cable. So now that we have, at least achieved an electronic means for the dissemination and control of wide ranging speech, it would be unfortun- ate to burden it with broadcast-like indecency 74 constraints. Given the inapplicability Of that theory to cable, it is useful to consider approaches to content censorship from other media, especially as they apply to the more restrictive realm of commercial use. While access channel carriage is non-mandatory, com- mercial use channels must be made available to subscribers in systems with 36 or more channels. 27 Specifically, at least 10 percent of channel capacity should be devoted to "persons unaffiliated with the operator."28 These individuals, be they a local school group or a nationally distributed syndicator, are totally free from system operator control.29 The responsibility for preventing potentially Offensive programming lies instead with the franchise authority. According to Section 612, that authority has the mandate to prevent programming which is "obscene, or is in conflict with community stan- dards in that it is lewd, lascivious, filthy, or indecent or is otherwise unprotected by the Constitution of the United States."30 In allowing these franchise authority judgements, the Act seems to be proscribing a process of prior restraint for cable programming. This is not to suggest that operators in all cities will exercise their new rights. Rather, those which reflect conservative program philosophies or constituencies are likely to take advantage of the prior restraint opportunity. It is useful 75 now to review that theory. The tests for orior restraint In applying the term indecent, the Act is turning back the clock on cable’s constitutional evolution, granting it protections roughly equivalent to those afforded broadcasters. More strikingly, the rules allow— ing franchise authority review of commercial access may strain regulatory limits-~even in the more widely regulat— ed area Of broadcast speech. Should local authorities apply broadcast standards, and cable operators review content in accordance with those guidelines, cable systems may soon find themselves embroiled in censorship controversies.31 As Poole notes, prior restraint refers to "any government action to review, permit, or prohibit a publication before the act of publication has taken place."32 This term is not restricted to its literal meaning, though, as the effect of post-hOc censorship on one content can have a restric- tive effect similar to that of prior censorship.33 SO even though U.S. policy in this realm has stressed constraints which "require certain content (such as arises in being fair)" as well as "those which prohibit other content (such as profanity), the state must move with caution in the latter case."34 Since so much is at stake with censorship, the courts have established strict procedures in such matters. They include a virtual ban on 76 censorship prior to release (or precensorship) and presumption against other restrictions, which can be imposed only after a strong burden of proof has been met by the government. As Justice Brennan noted in Bantam Book 21 Sulliran: Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity.35 In this regard, the First Amendment occupies a favored 36 position in U.S. Law. Mandates for state censorship can be maintained only in situations Ainvolving the public ahéfilfih, safety and welfare. Muth suggests this is not likely to be the case with communications media: While a case for public safety may be apparent in the offering of medicines, a parallel is not apparent in communication. Taken in constitutional context communication should be robust, expansive and generally free. U.S. Constitutional Policy encourages communication. It prohibits government from making ’any laws...abridging the freedom of speech or of press.’ It grants statutory monopolies to the inven- tors and authors of new products and communication. In short, U.S. policy encourages free expression until noise inhibits communication.37 One could argue that offensive material constitutes a type of environmental ”noise," or interference, which may undermine the social benefit derived from an otherwise effective communications channel such as cable. Even in the realm of broadcast, though, the courts have frowned on far reaching attempts by state or local authorities to 38 pre-empt federal authority in these cases. Certainly, 77 Section 612’s charge to regulate content that is lewd, lascivious, and filthy as well as indecent and obscene seems to substantially increase the area of unprotected speech. Where such broadcast-like oversight is, neverthe- less, possible in the halls of Congress, it would not likely pass judicial review. The Court has applied four tests in order to deter— mine what types Of speech the government may regulate. The Oldest is that concerning a "clear and present danger." Another employs a balancing approach between the speech in question and other public needs. A third test distinguishes between protected forms of speech, such as indecency, and unprotected speech, such as Obscenity. The fourth, more widely accepted, suggests that the fact that speech is employed cannot exonerate one from prosecution in the case of conduct which is otherwise illegal. While any of these may be potentially activated in cable speech, the latter should not see wide application with regard to the Act. The tests relating to protected and unprotected speech, discussed in chapter 2, often invite difficult court distinctions. But if one were to accept recent approximations of cable as an "electronic publisher,‘ 39 obviated. Thus, it is useful now to examine tests many of the indecency based concerns would be typically applied to film and print media--the "danger" and "balancing" tests. 78 9lear and oresent danger Such measures could scarcely even be considered in the realm of print. One need only look in this area to find parallel cases of pre-censorship. The "clear and present danger test" was popular through the 19508-—after which time it declined—-only to be revived in the 19708. Formulated by Justice Holmes in Sehepek y; ULSL, the test stated that expression which would be allowed in one context may be prohibited in another; the antidraft leaflets distributed by Schenck were held beyond the realm 40 of protected speech during World War I. The test was perhaps most clearly articulated by the Court in the 1940 9antnell X; 9onnetisnt decision: When clear and present danger of riot, disorder, in- terference with traffic upon the streets, or other immediate threat to public safety, peace or order appears, the power of the state to prevent or punish is obvious. Equally obvious is that a State may not unduly suppress free communication of views, religious or other, under the guise of conserving desirable conditions.4l Even before that time, in Nee; y; Mippeepte, the Supreme Court threw out a state injunction against a local paper, even though it had published unprotected libelous material; the enjoinder was deemed unconstitutional because it provided for the suppression of future issues yet unseen.42 In Whitpey y; Ceiiteppie, the test was used to justify prosecution of politically43 controversial address under a state syndicalism statute. In a similar case over half a century later, the Court vacated an Ohio 79 44 syndicalism statute. The test was not evoked here, however, as the court chose instead to base an opinion on the fact that the law didn’t distinguish between advocacy of ideas and incitement to unlawful conduct. It wasn’t until the 1980’s, however, that the courts seriously considered the conditions for precensorship. In a case involving the dissemination of nuclear weapons secrets, the Court refrained from permanently enjoining publication.45 So even in the unlikely event that indecency came to the Court’s attention as a "danger," it is not likely that any censorship could be sanctioned. Hence this "clear and present danger" doctrine, while advanced in Peeitiee in conjunction with broadcast’s pervasive presence, does not necessarily obtain for cable. It seems highly unlikely that privately narrowcast indecency would meet Justice Black’s definition of that "...the substantive evil must 46 "danger," which stipulates be extremely high before the utterances can be panished" The Court has not consistently held that such content presents a "danger" in print forms. SO, given rulings that elevate cable at or near the level of a publisher, the Court would have a difficult time reconciling such protection with the Act’s restrictions. Failing this, it is only fair to view Sections such as 612 in light of their relation with speech and other types of illegal action. Many of these theories have come 80 to be regarded as alternatives to the clear and present danger test. Balancing Enhlis Interests One such alternative involves the notion of balancing, in which the injunction of expression must be viewed against other legitimate national concerns such as security, order and repression of objectivity. This theory is premised upon the Court’s attribution of a "preferred" status for speech, mentioned earlier. Specific guidelines in the granting of this status were summarized as follows 47 by Poole: Reduced presumption of constitutionality Shift in the burden of proof Expedited actions Disallowance of vagueness Requirement of well—defined standards Disallowance of overbreadth Disallowance of procedural burdens Restriction on choice of means Narrow interpretation of laws Most of these concerns are activated by the Act and will be discussed below. Perhaps the most relevant for the purposes of this analysis is that which has been most widely discussed to this point--a reduced presumption of constitutionality. As the genesis of court rulings discussed in Chapter 3 suggest, cable has gradually broken out of its ancillary broadcast-service mode. It should only be a matter of time before the Court realizes the contradiction involved with treating cable as an independent, print-like medium in terms of ownership and 81 access while allowing the application of broadcast’s indecency standard. Ultimately, a new test for cable will need to address substantive and procedural issues with regard to commercial access. In order to find parallel restraint cases, one must, again, look to other media. Cases involving the application of constitutional standards such as the Roth and Miller tests were widely tested in the area of motion picture speech. The Court in loseoh horstzn. ins; X; Eilson vacated a doctrine holding that film expression is fully protected even though it may have a special impact relative to other modes of expression.48 However, albeit certain restraints on motion picture expression are not acceptable, the Court in . Times Fiig Cepp. v. City 9: Chieege held that local ordinances requiring submission of films for prior 49 censorship may withstand constitutional scrutiny. It wasn’t until Freedman v. Mepyiepg in 1965 that judicial attempts were made to articulate the guidelines under which censors may operate.50 The case involved a challenge to the jurisdiction of the now defunct Maryland Board of Censors. Upon hearing the case, the Supreme Court struck down a statute allowing the board in question to censor motion pictures, forwarding instead guidelines of its own. Censoring agents were henceforth required to: (1) place the burden of proving that the film in ques- tion meets constitutional standards for obscenity 82 (i.e., Roth and Miller) on the censor; (2) provide that the censor will, within a specified very brief period, either issue a license for exhibi- tion or go into court to seek to restrain exhibition and; (3) assure a prompt final judicial decision in order to minimize the deterrent effect of an interim re- fusal to license.51 ' As things now stand, it seems that the burden of proof now lies with the prospective program distributor with regard to adult programming. Where students have been allowed to challenge the exclusion of obscene books from their school district,52 there seems to be no such recourse for viewers seeking to challenge similar franchise authority decisions. And since the cable operator is allowed to review such content, the Act dispenses with safeguards designed to expedite the review process. Such restrictions have been held to have a "chilling effect" on the exercise of freedom.53 While one might argue that cable is not strictly analogous to film, the appellate cOurt in Home Box Office (see Chapter 3) drew attention to those procedural concerns when vacating pay cable programming rules. The Act fails also to address the manner which a franchise authority seeks to obtain a film for the purposes of review. For motion pictures, procedural safeguards state that law enforcement officgzls must obtain a judicial warrant before seizing a film. Though cable programmers are not likely to be in such dramatic 83 instances, the situation may arise when prospective channel users refuse to submit program samples for fran- chise authority review. Whatever the case, film prece— dent suggests that the magistrate must seriously concern themselves with substantive questions regarding the picture before issuing the warrant. Moreover, only a copy of the film may be seized; review activities must not preclude the continued exhibition of the film. In terms of the substantive standards by which that film is judged, vagueness and overbreadth are likewise frowned upon by the Court. Past decisions suggest that prior restraint action must be narrowly drawn, precise and sufficiently detailed; these conditions must be met even if the purpose is only to establish a film classification system for the protection of minors, as per the decision 55 in interstate 9irsnit. InC- v. City of Dallas Concerns regarding vagueness would likely arise in relation the Act’s encouragement for communities to regulate content that is lewd, lascivious, and filthy as well as indecent and obscene. As the discussion in Chapter 2 indicates, the Court has had trouble enough addressing latter two terms; surely their constitutiOnal oversight will strained in the review of varying local interpretations regarding the other elements of protected speech (including terms such as lascivious, which are as yet ill—defined). In a case involving another ill—defined 84 term, sacriligious, the gepetyp Court held that such standards amounted to "unbridled censorship."56 The sheer number of these terms speaks to another concerne-that pertaining to precision of meaning. In Ersonih X; 9itx ot lashsonrille. the Court nullified an ordinance making it a public nuisance and criminal offense for a drive-in theatre to exhibit films containing nudity if the screen was visible from the street. The Court refused to supply interpretation, because the measure did not explicitly specify that the ban applied only to obscene nudity.57 And, in a case that may prove relevant for public access channel speech, the Court in Cpegipg y; Wilson vacated a statute that persons who direct "opprobrious words" or "abusive language" toward another, causing a breach of the peace (a misdemeanor offense).58 The ordinance was held to be vague and overbroad on its face. Nevertheless, recent decisions in Detroit, MI and Renton, WA suggest that this may not be consistently interpreted as a shield against zoning actions.59 One could characterize the panoply of terms in Section 612 to be in violation of the overbreadth doctrine. While they are not as blatently ill-stated as those in the previously cited instances, their sheer number and scope threaten the Act’s credibility. Following this logic, the Utah and Miami cases evoked the doctrine when vacating the very sort of local ordinances 85 which the Act seems to encourage. In those cases, however, it was the scope rather than the precision of meaning that was held to be overbroad. The Court has also held that if there are alternate means to achieve a goal such as privacy, 8 legislature must not pick a vehicle that restricts free speech.60 Here again the Act is overbroad, as provisions for electronic lockbox devices represent an adequate non- censorious solution. Further steps limit commercial access or general cable channel speech have been obviated that channelling device. One indirect approach to control film expression which circumvents the procedural safegaurds with obscenity involves the zoning of adult movie houses into "combat— zones." While the limitation of these establishments is the goal, the Court has approved these actions because criminal sanctions and censorship are avoided.61 But, far from constituting an unconditional victory for censorship advocates, the Michigan and Washington decisions are embracing a "channelling" solution to offensive programming. This is conceptually similar to the channelling offered by lock-out devices. In each case, courts are able to choose a content control mechanism that stops short of censorship. Here again, given rulings that elevate cable beyond the level of broadcast in terms of protection it is not 86 beyond the pale of the Court to consider cable worthy of this enhanced protection. If subsequent rulings do echo. Cppigep’s electronic publication analog, then .indecency prohibitions will be found unconstitutional. Moreover, cable’s private, narrowcast nature should render other applications of indecency vulnerable to the overbreadth doctrine employed in the aforementioned cable cases. Thus, any such activity is certainly beyond the stringent "danger" test which should obtain for cable as it does for newspapers. In terms of the balancing approach, the state’s interest in safeguarding individuals from possibly Offensive or unwholesome content is outweighed by First Amendment interests. This is clearly the case with constitutionally protected indecency. And even where more questionable adult materials are involved, the interests of consenting audiences figure importantly, as illustrated by the Court’s past adherence to procedural safeguards. 9onslnsion In sum, cable’s diverse content environment has begun to upset the court’s tenuously constructed balance between "safe" privately consumed media (e. g. home movies) and the restricted range of public communication. New adult offerings on pay have, along with uncensored Offerings on access channels, combined to push cable into the range of indecent but not obscene programming. 87 Concerns regarding the impact of this content present problems for those seeking access to the medium, as non-consenting children and adults must be presumed to be in the audience during most hours of the day. Local ordinances designed to limit the scope and appearance of these themes, however, prevent consenting audiences from using this content at their convenience. Such measures, in proposing to narrow the latitude for cable speech, are at odds with recent court cases in Utah and Miami. These cases have recognized that cable should be exempt from indecency regulation by virtue of its non-obtrusive, narrowcast structure. The Act, in widening the latitude for local prohibitions regarding offensive speech, is directly contradicting those rulings. Indecency and obscenity based regulations included therein, based largely upon a broadcast model, have only marginal prospects for passing judicial review. This is because legislative and agency rationales justifying such regulation have, themselves, increasingly fallen under attack. The scarcity doctrine has, of course, been obviated by technological change. Utility based rationales, outlawed by the Act in their purest forms, do not justify content oversight. And nuisance-based rationales are without grounding for private media such as cable. Moreover, the provision of lock-boxes represents the most 88 effective means by which majority privacy can be balanced against minority rights to receive and present informa— tion. The presence of this structual channelling device obviates any remaining indecency-based imperatives to regulate cable content. NOTES-~CHAPTER 4 l R. Kleiman, "The regulation Of indecent programming on cable " Journal of Dreadsasting Vol- 34 No.1. (Spring. 1986), p. 346. 191g, Section 639. See §ER£¢1 note 9. ipig; Section 638. Thomas Muth. headings in Telecommunication Eolisy. Unpublished Manuscript, Michigan State University, p. 73. 10 P. Parsons, "Towards a theory of cable rights," Paper presented to the Law Division, annual conference, Association for Education in Journalism, Norman, OK, August, 1986. ll 9insherg 21 Ben Torh. 390 U.S. 629. 639-40 (1968). 12 hutler 29 Michigan. 353 U.S. 380. 383 (1957). Cpppet note 12, 495, 502. 14 Snore. ll. 15 Cppge, note 55, Chapter 2. Greg Kinczewski, "Keeping the Airwaves Safe for Indecency--Pacifica Foundation v. FCC" Cepeei Leg 3921981 Vol. 27 (1978), p. 248. 17 §eptei, note 5, Chapter 1. 18 N. Malamuth, and E. Donnerstein. "Not a moral issue. Tale lan and oolisy rerien. 2.(1984) 321—345. Yale University. 19 D. Zillman and J. Bryant, "Pornography, sexual callousness, and the trivialization of rape," gpepeei 9t 9onnunisation. (1982) 32:10-21. 89 90 20 E. Donnerstein, "Aggressive-erotica and violence against women." Journal of Eersonality and Social Eeyeepiegy, (1980) 39: 269-277. 21 E.F. Einsiedel, "Experimental Research on Pornography: Some Methodological Considerations." Paper presented to the Theory and Methodology Division, Annual Conference, Association for Education in Journalism and Mass Communication, Norman, OK, August, 1986. 22 913; Y; Eonach. 999 EAZd at 329- For a discussion. see Wirth, M, T.F. Baldwin, and J. Zenaty, 9p; eit. 23 Wirth. M., T.F. Baldwin and J. Zenaty "Demand for sex- oriented cable TV in the USA." Telecommunications Bolisy. (1984). 24 That oft-cited dicta from Reg iiee has not proven sufficient justification to mandate access to print or cable media, as noted in Chapter 3. But its contribution to the development of access is substantial. See Reg iiep §E9§§E§§Liflg X; E29292: 393 U-S- 367, 1969' 25 Jacobellis v. Ohip, 378 U.S. 184, 197, 84 S. Ct. 1676, 1683 (1984). 26 Federal 9onnunications 9onnission 21 Basilica Toun: getiep, 438 U.S. at 728, Justice Brennen in dissent. 27 Spppei, note 3, Section 612 (c). 28 leggy, Section 612. 29 1pig, Section 612 (c). 30 igig, Section 612 (h). 31 Thomas Baldwin, "Cable under the First Amendment," 9ahle 9onnunications hagasine. April. 1985. pp. 28-29. 32 1. Pool. Technologies of Treedon. Cambridge. MA: Harvard University Press, 1983, p. 56. 33 Nee; yi Miepeepte, 283 U.S. 696, 75 L. ed. 1138. 34 T. Muth, Cpppe., note 9, p. 38. 35 Bantam Books v. Cpiiiyep, 372 U.S. 58, 9 L. ed. 2d 584, 83 S. Ct. 631. 640 91 36 Poole, eeppe , note 32 37 lhig°s P 73 38 Eetee y; Iegee, 381 U.S. 532, 553, 85 S. Ct. 1628, 39 9-939- y; Bepigep, 485 F. Supp. 1035 (D. Colo), rev'd F. 2d 704 (19th Cir. 1980) (Boulder I). 40 Schenck v. United States, 249 US 47; See also Abrams 41 9antnell r- 9onneticut. 310 U.So at 308. 42 Sunra . note 33 43 hhitner E; 9aliiornia. 274 U-S- 357- 44 Srandenhurg Es tho. 395 U.S. 444- 45 9139 X; Erogressiue lnc- 467 F. Supp. 990 (N.D. Wis. 1979). 46 Sridges 2; California. 314. u.s. 252. 86 L. ed. 430 192, 62 s. Ct 190. 47 Seppei, note 32, p. 64. 48 Law 1982, Law 125, geeeph §BE§£¥91 Inc. v. Wilson, 343 U.S. 495. 9 9ity oi 9hicago. 365 U.S. 43. Zuckman, H. L. and Martin Gaynes, Mass Communications in a Nutshell, St. Paul, MN: West Publishing, 2d, pp. 148, -149. 52 lsland Trees Dnion Tree School District 21 Eico . US Week 50 (1982): 4831. 53 Harrison 2. hAA9E 360 US 157 176- 54 lnterstate 9ircuit Inc; 21 9ity of Dallas- 390 0-8. 56 Sucre . note 48 57 Eroznonik v. Jacksonville, 422 U.S., 45 L. ed. 2d 95 S. Ct. 2268. 92 58 9ooding X; Eilson. 405 U.S. 518. 59 §eppe., note 32, p. 64 Sppge., note 59. "7111111311111 till“ - - - - ‘ -- I I I II I u