r.'.lllllll.lll.llllllln TH I ' TC would 0“ LI'ERARY Michigan State University 35-p.15 THFNS 900;, LIMB‘FiARY Michigan State University I l / ///l I PLACE IN RETURN BOX to remove this checkout from your record. To AVOID FINES return on or before date due. MAY BE RECALLED with earlier due date if requested. DATE DUE DATE DUE DATE DUE 6/01 c:/CIRC/DateDue.p65-p.15 THE MAKING OF A CONSTITUTIONAL STANDARD: THE DEVELOPMENT OF THE BOTTLENECK RULE IN FIRST AMENDMENT LAW BY Nancy J. Whitmore A DISSERTATION Submitted to Michigan State University in partial fulfillment of the requirements for the degree of DOCTOR OF PHILOSOPHY Mass Media Ph.D. Program 2001 v —~..v- _ 3““. better develo; quulat POStula Process Princip; SUPPOSec InStitu: applicat essentia and Value the deCis In a provides standards bottlenec; ABSTRACT THE MAKING OF A CONSTITUTIONAL STANDARD: THE DEVELOPMENT OF THE BOTTLENECK RULE IN FIRST AMENDMENT LAW BY Nancy J. Whitmore The underlying purpose of this study is to acquire a better understanding of how First Amendment standards develop and evolve and how that evolution impacts the regulation of speech. Two disparate legal theories postulate two different explanations regarding this process. Conventionalism maintains that established legal principles that spell out the purpose that a legal rule is supposed serve guide and direct the development of law. Institutionalism, on the other hand, contends that the application and formulation of legal standards is essentially a subjective process that reflects the choices and values of those who have participated and prevailed in the decisionmaking process. In an effort to ascertain which of these two theories provides a better explanation of how First Amendment standards develop, this paper examined the genesis of the bottleneck standard. The bottleneck standard was developed applice of thos undetly by the 0.5. Supreme Court in Turner Broadcasting v. FCC,1 and allowed the Court to uphold a piece of legislation that clearly favored the economic and speech interests of the broadcast industry over those of the cable industry. To what extent the bottleneck standard reflects the application of established legal standards or the interests of those who prevailed in the adjudication process is the underlying subject of this study. This study found that established legal standards provide only a weak constraint against the revision and modification of law. Courts are able through judicial discretion to create new and refashion existing First Amendment standards that provide effectively weaker constitutional protection against government regulations that target free speech activities. In this sense, First Amendment standards reflect to the values of those that have prevailed in the adjudication process. In the end, neither theory provided a complete explanation of the development of the bottleneck rule. Instead the formulation of First Amendment law is a function of the analogies used, definitions applied and assumptions employed by those that have participated and prevailed in the adjudication process. '512 US. 622 (1994). Copyright by NANCY JEAN WHITMORE 2001 I TO. inst TO Dr. To Dr. Michael Sherer who, from the very beginning, instilled in me the belief that all this was possible; To Dr. Warren Francke who enabled me to discover my voice and showed me the path to self-expression; To Robert who always understood my journey and championed my goals; And to Nicole who continues each day to teach me the true value of freedom of expression. I commit: benefit 0f Prof dissert Reece a every $1 “Ould 11 and Alic supporti Colleagu tribulat ACKNOWLEDGMENTS I would like to thank the members of my guidance committee for their continued support. In particular, I benefited greatly from the guidance and critical comments of Professor Steve Lacy who read two previous drafts of the dissertation. Professors Sue Carter, Stan Soffin, Bonnie Reece and Barbara Cherry also provided helpful feedback at every stage of the dissertation process. In addition, I would like to thank my family, Bob Whitmore, Nicole Cormaci and Alice and Kenny Cleveland, for sustaining and supporting me through this process as well as all my colleagues and friends who were kind enough to listen to my tribulations and offer their guidance. INTRO: CHAPIE THEORE C I: A: F: CHAPTEE RESEARC CHAPTER EVOLUTI Th Th Th. Sc; SUI CHAPTER THE POL! CHAPTER 0 'BRIEN; App COn The art CONCLUSIt APPENDIX BIBLIOGRA TABLE OF CONTENTS INTRODUCTION......OOOOO......OOOOOOOO......OOOOOOOOOOOOOOO 1 CHAPTER 1 THEOETICM’ FRAMEWORKOOOOOCOOOOOO ......... ......OOOOOOOOO 13 Conventionalism.u..................... ........... ...13 Institutional Law and Economics. .................... 25 An Institutional Perspective on Freedom of Speech and the Must-Carry Issue .......... 33 CHAPTER 2 RESEARCH DESIGN .................................. ... ..... 41 CHAPTER 3 EVOLUTION OF CABLE REGULATION AND THE MUST-CARRY ISSUE....55 The Regulation of Cable Television..................55 The Must-Carry Rules and the D.C. Court of Appeals ..64 The Turner Decisions and the 1992 Cable Act......... 72 Scholarly Analysis and the Turner Decisions .........86 Summary ........ ........................... ........ .101 CHAPTER 4 THE POLITICAL PROCESS AND THE BOTTLENECK ARGUMENT....... 106 CHAPTER 5 O’BRIEN} AN EVOLUTIONARY RULE ............. ............ .. 127 Applying the O’Brien Rule to the Facts .... ..... ....136 Content Neutrality and the O'Brien Rule ............153 The Degree to which Government Actions are Scrutinized......... .......... . .............. .172 CONCLUSION O O O O O O O ..... O O O O O O O O O O O O O 0 O O O O ..... O O O O O O O O O O O 185 APPENDIX 0 O O O O O O O O O ...... O O O O O O O O O O O O O O O I O I O O O O O O O O O O O O O O 208 BIBLIOGMPHYOOOOOOOOO 0000000000000 O 000000000000 .00000000213 -vij- A Congrel local i major I wanted station justice down Tu indicate Station; greatly, jUSticeg prOViSic C°mPetit the Sign. INTRODUCTION A year after the Supreme Court upheld a 1992 Congressional finding that the economic health of certain local broadcast stations was in serious jeopardy, all the major television network executives said that the networks wanted to increase their ownership of local broadcast stations “because that is where the big profits are."1 Five justices of the Court believed in 1997, when they handed down Turner Broadcasting v; FTILZ that substantial evidence indicated that significant numbers of local broadcast stations were set to fail altogether or deteriorate greatly.3 The answer to broadcast's economic woes, the justices agreed, was in the form of the must-carry provisions of the Cable Television Consumer Protection and Competition Act of 1992.‘ Requiring cable operators to carry the signals of local broadcast television stations has been controversial since the Federal Communications Commission 1Steve McClellan, Can the Big 4 Still Make Big Bucks?, BROADCASTING & CABLE, June 8, 1998, at 28. McClellan writes that in 1997, NBC, CBS, ABC, and Fox experienced a combined profit margin of 3.4 percent. Id. This figure compares to profit margins of 25 percent or more for local broadcast stations. See JAMES WALKER a DOUGLAS FERGUSON, THE BROADCAST TELEVISION INDUSTRY 84 (1997). 2520 0.5. 180 (1997) [hereinafter Turner II]. 31d. at 208-130 ‘Pub. L. No. 102-385, 106 Stat. 1460, 1504 (codified in scattered sections of 47 U.S.C.) [hereinafter 1992 Cable Act]. introc have t revise appear finallj four v: ...Q m introduced the idea inl965.S Twice the must-carry rules have been struck down as unconstitutional,6 only to be revised in the 1992 Acta7rAfter five years and two appearances at the Supreme Court, mandatory carriage finally received the Court's approval, albeit in a five—to- four vote and in a four-justice plurality opinion.8 The debate over the 1992 must-carry provisions brought to a head the ongoing question of the applicable First Amendment status for cable television. At issue was whether the Court should review must-carry rules under the most exacting level of scrutiny—that which is applied to content-based regulation of the print media—or under the minimal level of scrutiny reserved for broadcast communications.9 In the end, the Court determined that the 5Amendment of Subpart L, Part 11, To Adopt Rules and Regulations To Govern the Grant of Authorizations in the Business Radio Service for Microwave Stations to Relay Television Signals to Community Antenna Systems, 38 F.C.C. 683, 760 (1965) [hereinafter 1965 Cable Rules]. ‘Century Communications Corp. v. FCC, 835 F.2d 292 (D.C. Cir. 1987), cert. denied, 482 U.S. 1032 (1988). Quincy Cable TV, Inc., v. FCC, 768 F.2d 1434 (D.C. Cir. 1985) cert. denied, 476 0.8. 1169 (1986). In each case, the court struck down the must—carry rules on the ground that they violated the First Amendment rights of cable operators. See Century, 835 F.2d at 304; Quincy, 768 F.2d at 1463. Specifically, the court found that the FCC failed to demonstrate that the must-carry regulation was narrowly tailored to serve a substantial governmental interest. See Century, 835 F.2d at 304; Quincy, 768 F.2d at 1463. The rules, therefore, failed to pass judicial scrutiny. 7See infra text accompanying notes 253-313. 'Turner II, 520 0.5. 180 (1997). ’See Robert Corn-Revere, New Technology and the First Amendment: Breaking the Cycle of Repression, 17 HASTINGS COMM. & ENT. L.J. 247, 255- 57 (1994); Michael D. Fitzgerald, Note, Constitutional lJ must—carry provisions were not intended to regulate content on cable systems but to preserve access to local broadcast channels by noncable households and protect broadcast television from unfair competition by cable systems.10 With must-carry defined as a “content-neutral" economic regulation, the Court applied the intermediate scrutiny 1 and, in a test developed in united States v. O’Brien,1 second appearance before the Court, held that the must- carry provisions did not violate the First Amendment rights of cable operators.12 The Court's final decision in Turner II was the outcome of an adjudication process that left the cable industry with a new First Amendment standard built on an economic analysis politically perceived within the walls of Congress. This standard, the so-called ”bottleneck" or “monopoly" rule, was used in the Turner decisions to justify an intrusion into the editorial decisions of cable operators on the basis of an absence of local system competition and the supposed ability of a locale's chosen Law-Congressional Regulation of Cable Television—Upholding the Must- Carry Provisions of the Cable Television Consumer Protection and Competition Act of 1992, 65 TENN. L. REV. 319, 336-37 (1997). 1°Turner Broadcasting System v. ICC, 512 0.5. 622, 646, 652 (1994) [hereinafter Turner I] . 11391 0.8. 367 (1968). 12Turner II, 520 0.8. at 185. cable COIltl’C into a the eon over t] system, grantec finding constit troubli was imp POWEr O cable system to act as a bottleneck or gatekeeper, controlling access to all television programming coming into a subscriber's home.13 Such an intrusion, which favors the economic and content interests of local broadcasters over the economic and content interests of the cable system, resulted from a legal reasoning process that granted a high degree of deference to Congress' economic findings.“ The level of deference the Court applied in its constitutional analysis of the must-carry rule is somewhat troubling, given the fact that the First Amendment, which was implicated by the must-carry provision, is a legal text that specifically limits majoritarianism and the regulatory power of legislators.15 While Congress has the power to 13See Laurence H. Winer, The Red Lion of Cable, and BeyondP-Turner Broadcasting v. FCC, 15 me20 ARTS a BNT. L.J. 1, 47-48 (1997); Arthur I. Prostick, Comment, Changing Channels: The Cable Industry’s Search for an Acceptable First Amendment Standard, 8 ALB. L.J. SCI. & TECH. 173, 182 (1997). 1‘Turner II, 520 U.S. at 195-96. 15See Marbury v. Madison, 5 U.S. (1 Cranch) 137, 178 (1803). See also RONALD DWORKIN, TAKING RIGHTS SERIOUSLY 133 (1977); KEITH E. WEITTINGTON, CONSTITUTIONAL INTERPRETATION: TEXTUAL MEANING, ORIGINAL INTENT, AND JUDICIAL REVIEW, 4 (1999); William J. Brennan, Jr., The Constitution of the united States: Contemporary Ratification, in INTERPRETING TEE CONSTITUTION: TEE DEBATE OVER ORIGINAL INTENT 23, 28-30 (Jack N. Rakove ed., 1990). “From the vary outset, the Constitution has been viewed as creating a national government of vast, but nonetheless limited, legislative powers." WrmnAN B. LOCRNART ET AL., CONSTITUTIONAL LAw 58 (1996). The First Amendment, then, is a limitation on government's inherent power to regulate as enumerated in broadly-stated clauses in Art. I S 8 of the 0.8. Constitution. See U.S. CONST. amend. I.; U.S. CONST. art. I, S 8. Under the theory of judicial review, the judiciary has a role in interpreting the First Amendment as a limitation on government's legislative power and declaring acts of Congress that violate that limitation void. See Marbury, 5 U.S. at 177-80. See also infra text accompanying notes 17- 21. gives 1 large c standar constit longsta 19931 s; the Con Land,~l5 interpr. "judici theory ' review . enaCtme: enact legislation that regulates economic activities, the issue that arose in the Turner cases was whether the must- carry legislation that Congress enacted violated the First Amendment's freedom of Speech clause.16 The legal reasoning employed in the Turner decisions gives rise to the concern that the political process, to a large degree, influenced the development of the bottleneck standard. The role of Congress in the reformation of constitutional law warrants a fuller examination, given the longstanding theory of judicial review within the U.S. 17 legal system. Judicial review rests on the postulate that the Constitution is not only the ”supreme Law of the Land,”” but also law that judges are capable of interpreting19 independent of majoritarian influence and ”judicial deference to elected officials.”" Under the theory of judicial review, the judiciary has the power to review acts of the legislature and to declare legislative enactments that are determined to be ”repugnant to the 1‘See Turner I, 512 U.S. at 626. 17Judicial review rests on 1.) supremacy clause of the Constitution which states that the Constitution shall be the supreme law of the land and 2.) the idea that judicial province and duty consists of the power to determine what the law is. See Marbury, 5 U.S. at 177, 180. 1'U.S. CONST. art. VI, cl. 2. ”See LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAN S 3-3, at 27 (2d ed. 1988). 2"WEITTINGTON, supra note 15, at 4. See Marbury, 5 U.S. at 177. [Clone within Consti vague variou. ,' text 5: | the ste adjudicl | these d discret based 0 and not r ( ’ — T — [C]onstitution" void.21 While general agreement exists within the legal community that ”the text of the Constitution is binding on courts,"22 the broad phrasing and vague language encased within the document underlies various philosophical and adjudicatory debates over how the text should be interpreted23 and what constraints (if any) the standards of law impose upon judicial discretion in the adjudication of constitutional issues.“ At the center of these debates is the concern that the need for judicial discretion within the legal system results in decisions based on the personal or political preferences of judges and not on established legal standards.25 21Marbury, 5 U.S. at 180. ”GEOFFREY R. STONE ET AL. , CONSTITUTIONAL Luv 36 (1986) . 23While constitutional interpretation has been widely debated and theorized by both legal scholars and legal practitioners, it is not the focus of this paper to explore the various approaches of Constitutional interpretation. For a general explanation of various modes of constitutional interpretation, see WALTER F. MURPHY ET AL. , AMERICAN CONSTITUTIONAL INTERPRETATION 289-316 (1986) . 2‘See Stone, supra note 22, at 33—34. See also DmquN, supra note 15, at 133 (suggesting that both vague and precise constitutional standards can be recognized and justified by an appeal to moral rights); LAmumcs H. TRIBE, CONSTITUTIONAL CHOICES vii-viii (1985) (arguing that all choices among alternative interpretations of the Constitution are fundamental choices of principle); WHEMTMHDN, supra note 15, at 5-9 (examining constitutional interpretation as a process of discovering textual meaning); Brennan, supra note 15, at 27-28 (explaining how justices read the Constitution); Henry P. Monaghan, Our Perfect Constitution, 56 N.Y.U. L. REV. 353, 388—89 (1981) (discussing the declining relevance of stare decisis in constitutional cases). 2’See STEVEN J. BURTON, JUDGING IN GOOD FAITH 43-44 (1992). See also Robert a. Bork, Neutral Principles and Some First Amendment Problems, in INTERPRETING THE CONSTITUTION: TEE DEBATE OVER ORIGINAL INTENT 197, 199-201 (Jack N. Rakove ed., 1990); Ronald Dworkin, The Forum of Principle, 56 N.Y.U. seems Judici based Instea for tha where 1 based c analogj bY the Constit interes ChOices SPlit 0; addreSS< What 9x1 iSSUQS ( What eXt the Varj When law is unclear and no established legal rule seems to apply, a judge decides the case using discretion.“ Judicial discretion, however, should not be arbitrary or based solely on a judge's own personal preferences.27 Instead, a “judge must always invoke some general reasons” ” In cases, such as the Turner decisions, for the decision. where little clear precedent exists, legal reasoning is based on harder-to-justify analogies. A reliance on such analogies, then, may ultimately allow for greater influence by the political process and perpetuate an evolution in constitutional standards that reflects not only the interests of affected parties but also the individual choices and values of those jurists who have prevailed in a split or fractured decision-making process. This paper addresses this concern and the following questions: 1.) To what extent are judicial decisions of First Amendment issues constrained by established legal standards and to what extent are those established Standards a function of the various analogies used, definitions applied and assumptions employed by the jurist? 2.) To what extent are L. REV. 469, 469 (1981); Joseph Raz, Legal Principles and the Limits of Law, 81 Yale L.J. 823, 844-48 (1972). 2‘See BURTON, supra note 25, at 37; DNORRIN, supra note 15, at 69. 2”See DNORRIN supra note 15, at 69-71; Raz, supra note 25, at 847. 2’Raz, supra note 25, at 847. Ill l the in the fi finall in the consti+ Speech' Tc examine examine establ; evolut, this F allow indete dinrg theori eCODOm nature Praeti C modes legal : the interests of affected parties to the case reflected in the final legal analysis put forth by the court? 3.) And finally to what extent has the need for judicial discretion in the application of the O'Brien rule modified this constitutional Standard and led to increased regulation of speech? To address these points, this paper proposes to examine the genesis of the bottleneck Standard. This examination includes an investigation into what impact established legal standards, the political process and the evolution of the O'Brien standard had on the development of this First Amendment rule. The proposed examination will allow the researcher to investigate the issues of legal indeterminacy and judicial discretion29 in relation to divergent theories of adjudication. These two theories—conventionalism and institutional law and economics—offer contrasting viewpoints with regard to the nature of law and the method of its application in judicial practiCe. Conventionalism advocates a return to traditional modes of legal analysis. It operates from the idea that legal Standards ”authorized by the professional community 2"Because ”law is not so clear, consistent, and complete that it constrains judges to reach a single legally required outcome in many cases," it is said to be ”indeterminate" and “the judge [therefore] has discretion." BURTON, supra note 25, at 7. of whi This t insigh- durabi. law is to thos convent jUIISpr adjudic determi diSCret free tc of the Constra of which the judge is part" constrain judicial decisions.30 This theoretical approach views law as a “collection of insights, procedures, and methods, of great antiquity and durability."31 This approach also maintains the belief that law is an autonomous discipline of social thought best left to those trained in law and only law.32 Philosophically, conventionalism occupies a centrist position in ongoing jurisprudential debate between legal formalists, who view adjudication as a largely mechanical process that determines correct results absent the vagaries of judicial discretion, and legal skeptics, who believe that a judge is free to choose among different readings and understandings of the law and that no legal Standards exist which constrain that choice.33 Institutional law and economics, which draws its theoretical approach from legal realism, is closely related to legal Skepticism. Like the pre-war realists, institutionalists view law as something to be worked out, something that is made and not discovered through the 3°Owen Fiss, Comment, Conventionalism, 58 S. CAL. L. REV. 177, 183 (1985). See BURTON, supra note 25, at 37; STEVEN J. BURTON, LAW AND LEGAL REASONING 6 (2d ed. 1995); ANTHONY J. SEBOR, LEGAL POSTIVISM IN AMERICAN JURISPRUDENCE 108 (1998). 31RICHARD A. POSNER, THE PROBLEMS OF JURISPRUDENCE 435 (1990) . 32See id. at 434-35. applic a coef count, partic; politic Wt indeter in the indeter SYStem. Standar the leg indeter entitle WhEreb3 19ga1 I I} notiOn on jud; adjudit application of legal standards. Law, in this framework, is a coefficient of the choices made as to whose interest will count, and “'an expression of the values of those who have participated and prevailed at each stage of choice in the political-legal-economic arena.'"“ While both approaches contend that law is indeterminate and thus judges need to exercise discretion in the adjudication process, the two differ on the level of indeterminacy and discretion sustained within the legal system. Conventionalists believe that legal Standards—rules, principles, and policies—largely constrain the legal reasoning process. Where the source of law is indeterminate, such as the Constitution, judges are entitled to exercise discretion but only in a weak sense whereby guidance and direction are provided by established legal principles.35 Institutionalists, on the other hand, reject the notion that legal standards provide any type of constraint on judicial discretion. They maintain, instead, that adjudication is fundamentally a discretionary process, in 3’See BURTON, supra note 25, at 3-6; BURTON, supra note 30, at 3-4; Fiss, supra note 30, at 182. 3‘NICHOLAS MERCURO a STEVEN G. MEDEMA, ECONOMICS AND THE LAW: FROM POSNER To POST- MODERNISM 117 (1997). ”See BURTON, supra note 25, at 37, 42-43. 10 which ex pos societ‘ tempor' or fou. reflec: legal I given c of Choi introdu competi the val gOVanm Ba bottlen approac 90th th interpr which law is continuously being made and remade36 to provide ex post determinate solutions.37 However, because ex ante society is radically indeterminate, these solutions are temporary or partial at best and have no ultimate rationale or foundation.38 Legal outcomes, instead, depend upon and reflect human choice” in the formulation and selection of legal rules and in the determination of how the facts of a given case fit the rule chosen.‘0 This inevitable necessity of choice in the resolution of legal issues mandates the introduction of value judgments in choosing between competing interests and creates legal outcomes that reflect the values of ”those who are most able to effectively use government to further their own ends.“1 Based on an examination of the development of the bottleneck standard in relation to the two theoretical approaches outlined above, this research seeks to evaluate both the conventionalists' notion that constitutional interpretation iS a judicial exercise that is guided by and "See MERCURO & MEDEMA, supra note 34, at 117. 37See Steven G. Medema, Making Choices and Making Law: An Institutional Perspective on the Takings Issue, in TAKING PROPERTY AND JUST COMPENSATION: LAw AND ECONOMICS PERSPECTIVES OF THE TAKING ISSUE 45, 47 (Nicholas Mercuro ed. , 1992). ”See WARREN J. SAMUELS, ESSAYS ON THE ECONOMIC ROLE OF GOVERNMENT 273 (1992) . ”Id. “See Mercuro, supra note 37, at 47. “MERCURO a MEDEMA, supra note 34, at 117. 11 confo: instit subjec have P evalua test w better issues conforms to established legal principles,‘2 and the institutionalists' belief that decisionmaking is a subjective enterprise that reflects the values of those who 43 have prevailed throughout the process. Through an evaluation of both approaches, this study also attempts to test which of the two theories of adjudication offers a better explanation of the adjudication process and the issues of legal indeterminacy and judicial discretion. “See Owen M. Fiss, Objectivity and Interpretation, 34 STAN. L. REV. 739, 739, 755 (1982). “See MERCURO a MEDEMA, supra note 34, at 117. 12 Convex . .| adjudl‘ skepti< rejects facts, single this w. lead t) “[j]us Person become *3" ‘B ‘\ I CHAPTER ONE THEORETICAL FRAMEWORK Conventionalism Conventionalism occupies the middle ground in adjudication theory between legal formalism and legal Skepticism.“ As a centrist approach, conventionalism rejects the idea put forth by the formalists that objective facts, unambiguous rules and logic should determine a Single, correct result in all cases.‘5 “Were law to operate this way,” conventionalists contend, “legal reasoning would lead to the same decision no matter who is doing it," and “[j]ustice would not vary with the vagaries of human personality."“ The adjudication process, they argue, would become a ”highly mechanical" activity in which “the role of the judge is trivialized."‘7 Such a process would “sharply restrict the domain of law-governed activity,“8 especially in the area of constitutional law where the resolution of disputes rests upon judicial interpretation of abstract “See BURTON, supra note 30, at 89-90; Fiss, supra note 30, at 183. "See BURTON, supra note 30, at 3, 89. “Id. at 3. "Fiss, supra note 30, at 182. “BURTON, supra note 30, at 89. 13 langue formal 'judi genera social I CIitiCr of pol- persona lUdges Convent P0wer 1 adedit Conven1 judiCia 0f jUdt Play it language and vague clauses.‘9 The resulting effect of legal formalism, according to conventionalists, would be “judicial abstinence in almost all of the great cases generally thought to have contributed centrally to greater social justice in the United States."50 Like legal formalism, conventionalists also are critical of legal skepticism and its view of law as a form of politics that allows adjudication based on a judge’s personal views of social justice.51 By contending that judges rule without effective legal constraints, conventionalists say legal Skepticism expands judicial power far beyond its historic scope52 and promotes a type of adjudication in which “anything goes."53 According to the conventionalists, this approach, which assumes that judicial decisions are based on the unconstrained choices of judges,“ fails to consider the role legal conventions play in structuring judicial decisions.55 Conventionalism "See Fiss, supra note 30, at 179-80 for a discussion on the interpretation of the equal protection clause. ”BURTON, supra note 30, at 89. 51See id. at 89-90. ”Id. 53BURTON, supra note 25, at 43. The ”anything goes" approach assumes "that. judges decide whatever they want to decide when the law is unclear (and it is often or always unclear)." Id. "See id; Fiss, supra note 30, at 182-83. s"’See BURTON, supra note 25, at 44, 196-97. 14 Ill i conter commun. justif‘ action_ decisi' that j1 allowec Standar social contends that legal standards56 authorized by the legal community along with the need for judicial decisions to be justified according to these standards cabin judicial action by allowing and disallowing the reasons on which a ” In short, conventionalists believe decision can be based. that judges are required to consider only those reasons allowed by law and to disregard relevant nonlegal standards, such as those of "sound political morality or social policy."58 To the conventionalists, the legal system is “a coordinated set of legal precedents, rules, principles, and policies that guide" judicial conduct.59 Judges, under a duty to uphold the law of the legal system, identify and interpret these legal standards and apply those which are applicable to the concrete facts in a problem case to resolve the dispute and issue a ruling accordingly.“0 This process, known as legal reasoning, is most often “Legal standards refer to rules, precedents, principles, and policies authorized by the legal community to decide cases. Cases are decided by the process of legal reasoning where plain facts are made relevant through their application to legal standards. See Bummm, supra note 30, at 90, 93; BURTON, supra note 25, at 39. ”See BURTON, supra note 30, at 90; BURTON, supra note 25, at 47, 155-56; Fiss, supra note 30, at 183. ”BURTON, supra note 25, at 47. See BURTON, supra note 30, at 90. ”BURTON, supra note 30, at 165. “See id. at 1; BURTON, supra note 25, at 179. 15 1172,00. 50769t771 case if deductj \. £1 See an." ti Id. at 4 cIiurton c sentence [ base Poin this usage FWD lain It is bIOa Fhe legal DWise t: Whereas “"- " Id. accomplished by analogical and/or deductive reasoning.“1 Analogical legal reasoning follows the axiom “like cases Should be decided alike.“2 In this form of legal reasoning, relevant precedents and their holdings63 are identified and serve as a base point from which to compare and contrast the facts of a problem case with the facts of the precedent cases.“ After the precedent cases are identified and contrasted with the problem situation, a judge must make a determination of whether the similarities or differences between the problem case and the precedent cases are more “ In other words, a determination must be made important. whether to follow the precedents or distinguish the problem case from the precedents identified.“ By contrast, in the deductive reasoning process, a judge identifies an “See BURTON, supra note 30, at 25, 59. “Id. at 40. “Burton defines a “holding" as ”a statement that captures in a sentence or two the probable significance of a single precedent as a base point for reasoning by analogy in future cases." He distinguishes this usage of the word “holding" from a broad holding which states a common law rule in general terms. The latter he calls "dictum" in that it is broader than a case-specific statement of the important facts and the legal outcome. Dicta, he says, lack the status of legal authority because they purport to exceed the powers of a common law judge," whereas “the holding of a case has the privileged status of 'the law.'" Id. at 37-38. “See id. at 28-29. "See id. at 31. “See id. 16 authoritative and applicable legal rule67 (which can be done using precedent cases thus combining the two forms of legal reasoning).68 This rule then serves as the major premise.” Next the facts of the problem case are described in such a way as to form a minor premise.7o Lastly, the rule is interpreted in relation to the facts to reach a sound conclusion.71 In easy cases, legal reasoning and case outcome usually vary little from court to court and judge to judge.72 Such cases are deemed ”easy" because the authoritative legal Standards involved are clear and readily applicable to the facts by a fairly straightforward application of the deductive reasoning process.73 By contrast, hard cases are based on law that is indeterminate and outcomes that are uncertain.“ These cases are rooted in legal authorities and rules of interpretation that are "See id. at 65. “See id. at 59. "See id. at 65. "See id. at 50-52, 65. 71See id. at 65. 72See id. at 117. 7’See Id. at 117-18. This type of reasoning ”is most closely associated with reasoning from enacted law, which usually consists of general rules." Id. at 43. "See id. at 117. See BURTON, supra note 25, at 7-8 for a discussion of indeterminancy . l7 unsettled, vague, and ambiguous and that often conflict with competing legal Standards.75 In hard cases where legal reasoning in judicial deliberations often varies from judge to judge and differing outcomes are possible, cases are resolved through the use of judicial discretion.76 But even when exercising discretion, conventionalists maintain that judges are required to act only on reasons provided by law and not on extra-legal reasons.77 Legal reasons that are allowed to count in judicial deliberations are those that are derived from the combination of legitimate legal standards and concrete facts.7a Judicial discretion, then, allows judges to ”weigh [these] competing legal reasons without relying on reasons not warranted by the law as grounds for [a] judicial decision."” In this manner, conventionalists contend a judge's decision is ”fully in accordance with the ”See BURTON, supra note 30, at 117, 121-22; BURTON, supra note 25, at 8. It is within this area of law that contentions are raised regarding the efficacy of legal standards to constrain judicial action. See BURTON, supra note 25, at 3-12. "See BURTON, supra note 25, at 43; DNORKIN, supra note 15, at 81. "See BURTON, supra note 25, at 49. When law is vague or ambiguous, a judge has no license to go outside law's authority and apply moral or social policy standards not recognized by law to the facts of a case. See id. at 47-49. Consequently, a judge is also not allowed to consider “personal interests, prejudices, and religious or moral views" in the deliberation process. BURTON, supra note 30, at 90. "See BURTON, supra note 30, at 90. ”BURTON, supra note 25, at 50. See Raz, supra note 25, at 846. 18 law" even though the decision is not dictated by the law.“ Thus, in hard cases, a judge has the discretion to choose among reasons warranted by the law as grounds for the judicial decision.81 All relevant reasons should be identified and in the process of deliberation weighed against each other.82 The weight of any one reason depends on the background justifications for the legal standards upon which the reason is grounded as well as the justifications embodied in the other reasons invoked by the circumstances.83 Background justifications are the principles and policies upon which the Specific legal text or group of holdings invoked in a case rests.“ Commonly these justifications are not identical to legislative intent and do not include the motives of legislators who voted for the law or their hopes, expectations, beliefs, or predictions.85 Instead legal principles and policies define the purpose of the text or group of holdings and provide the ”BURTON, supra note 25, at 50. “[T]he law dictates what considerations have to be taken into account, but not what weight to assign to each of them or to actions in accordance with or contrary to each of them in particular cases." Raz, supra note 25, at 846. “See Fiss, supra note 30, at 183. ”See BURTON, supra note 25, at 56. ”See id. at 57. "See id. at 62, 67. ”See id. at 62 n. 49. 19 0. at ...c/ justifications for the application of a legal rule to a set of concrete facts.86 Thus, according to conventionalists, background justifications constrain judicial discretion by Spelling out the purpose that a legal rule is supposed to serve and providing a guidepost against which the correctness of a judgment may be evaluated.87 A judgment is considered correct when its reasoning can be harmonized with the content of the greater body of legal standards recognized as authoritative by the members of the legal community.88 In this manner, conventionalists say, law retains its regularity” and effectively serves its ultimate purpose of prescribing human conduct.90 The prescriptive nature of law, according to the conventionalists, is embodied in legal texts such as the "See BURTON, supra note 30, at 97; Raz, supra note 25, at 839. The notion that ”principles [and policies] can be used to justify rules but not vice versa" stems from the idea that “[r]ules prescribe relatively specific acts; principles [and polices] prescribe highly unspecific actions." Raz, supra note 25, at 838-39. Therefore one may justify a rule which applies to a limited range of situations and actions by a principle or policy that applies to a more general, wider area of human activity. See Raz, supra note 25, at 838—39. "See BURTON, supra note 30, at 97-98; Fiss, supra note 30, at 183; Raz, supra note 25, at 847. "See BURTON, supra note 30, at 98; Fiss, supra note 30, at 183; Fiss, supra note 42, at 745, 748-49. ”See BURTON, supra note 30, at 98. ”See id. at 4. Not all law prescribes behavior. Some legal rules qualify the meaning or application of rules that prescribe behavior. An example would be a rule stating that “a will is invalid unless signed by three witnesses." Raz, supra note 25, at 835. Nonetheless, this Constitution.91 These texts state the ideal and encompass public values that are given concrete meaning and expression through the process of adjudication.” The Constitution, according to conventionalism, is the ultimate authority for a judicial decision and the ultimate embodiment of public values.93 Judges come to understand and express the meaning of the Constitution and the values embodied in it through a form of adjudication called interpretation.“ Constitutional interpretation, like all adjudication, is constrained by the set of legal standards that specifies the relevance and weight to be assigned to the text as well as the definition of basic concepts and the establishment of procedural circumstances under which the interpretation must occur.95 Conventionalists view judicial decisions that disregard binding legal standards as non-objective and illegitimate.96 Objectivity in law paper is interested in legal standards that are norms and, therefore, do prescribe human behavior. ”See Fiss, supra note 42, at 751. ”See id. ”See id. "See id. at 739, 751. 9”See id. at 744. Fiss refers to the standards that constrain judicial action as “disciplining rules." In order to provide consistency in terminology, this study will use the words “legal standards" to refer to the rules and principles that constrain judicial decisionmaking. "See id. at 748-49. “implies that an interpretation can be measured against a set of norms [principles] that transcend the particular vantage point of the person offering the interpretation."97 Objective decision-making ”imparts a notion of impersonality,"” and the idea that the interpretation was constrained” by legal reasons that enjoy legal status in relation to the particular text from those that do not.”° Interpretation of the Constitution presents special problems for jurists in that the text by itself does not necessarily govern deductively in a rule-like fashion according to its ordinary meaning.101 Any jurist, for example, who interprets the free speech clause of the First Amendment according to the ordinary meaning of the words ”Congress shall make no law . . . abridging the freedom of Speech" would be ”seriously misled" as to what the amendment actually prohibits.“”.And while judicial precedents interpreting the First Amendment are available as base points for deductive reasoning, new fact situations ’TId. at 744. "rd. ”See id. 1°°See BURTON, supra note 25, at 64. 101See BURTON, supra note 30, at 66; WHITTINGTON, supra note 15, at 6. "’BURTON, supra note 30, at 66. For example, the First Amendment not only prohibits the federal government from enacting legislation that “abridges' free speech, but, when interpreted together with the Fourteenth Amendment, also forbids such acts by the states as well. Id. '3’) ~- often arise for which no clear precedent rule seems to apply.103 When no clear precedent case can be identified and the ordinary meaning of the text is insufficient, judges often rely on legal rules that have been applied to other case situations governed by the same textual enactment.”‘ For example, in Turner I, the Court determined that the O’Brien rule should be applied to the question of whether the must-carry rules violated the free speech rights of cable operators105 even though the O'Brien rule was developed to adjudicate symbolic speech cases106 and not cases involving the First Amendment rights of cable systems. Legal rules are important in the interpretation of constitutional law. Rules provide a framework function by helping ”to identify common starting points for reasoning in a case" and to structure “the order in which a series of legal questions must be taken up and answered in a legal decision-making procedure."107 In addition, legal rules and other legal standards provide competing and supporting reasons for a judge to decide a particular case in a 1”See id. at 66-70. “‘See id. “’Turner I, 512. U.S. at 662. 1“O'Brien, 391 U.S. at 376-77. 1°7BURT0N, supra note 25, at 169. particular way.108 In the Turner decisions, not all the justices agreed on a single outcome to the case. Justices were divided over the legal standards to apply to the case and the relative result those standards demanded.“”.As long as both decisions were based on legitimate legal standards, both opinions are viewed as objective and legitimate by conventionalists.110 The fact that the justices disagreed on the selection and application of rules and other legal standards is viewed as a matter of difference of interpretation.”11 Conventionalists hold that the best interpretation is one that ”ensur[es] coherence of purpose among various laws bearing on the same subject.”12 With regards to the Constitution, interpretation of the text Should conform to constitutional principles that are accepted as binding because they have acquired considerable authoritative support in a line of decisions.113 Likewise, 10“See id. at 170. 10“See infra text accompanying notes 355-402. u°See supra text accompanying notes 95-100. 111See BURTON, supra note 25, at 72-77. 112Raz, supra note 25, at 840. 113See Raz, supra note 25, at 848. ”Principles are not made into law by a single judgment; they evolve, rather, like a custom and are binding only if they have considerable authoritative support in a line of judgments. Like customary law, judicially adopted principles need not be formulated very precisely in the judgments which count as authority for their existence. All that has to be shown is that they underlie a series of courts' decisions, that they were in fact a reason operating in a series of cases." Id. the development of new rules or changes in existing law must also conform to authoritative principles.“‘ In this manner, changes in law or the formulation of new rules are grounded in settled constitutional principles, thereby securing the consistency of law as well as its authority as a prescriptive force. Institutional Law and Economics Institutional law and economics owes much of its theoretical underpinnings to the work of John R. Commons. In his classic treatise Legal FOundations of capitalism (1924), Commons examined the impact of law on the development of modern capitalism and showed how legal change influences and facilitates the development of economic activity and how economic pressures influence and facilitate legal change.“15 Through his analyses of a wide variety of court cases, statutes, and policy rules and regulations, Commons came to the understanding that markets were chiefly created by law and government.“16 For Commons, these institutions played a fundamental role in the formation and structure of the economic system through 11‘See id. at 840-41. 11"‘See MERCURO & MEDEMA, supra note 34, at 108. 11‘See Warren J. Samuels, John R. Comons (1862-1945), in THE ELGAR COMPANION TO LAW AND ECONOMICS, 304, 304 (1999). their ability to generate the working rules through which argument, energy, and strategy are directed in the policy- making process.117 In his work, Commons emphasized the importance of rules that ”govern who can act as an economic agent and on what basis or condition.”18 He argued that the most fundamental values are the valuations ensconced within the working rules, because these valuations represent the institutional Choices between competing interests and power Structures.1” Consequently, in his work, Commons stressed that the critical area of policy study is the legal change of law or the legal change of interests protected by law. Such Changes are a function of the economic pressures which are brought to bear on the political and legal system, and, in turn, become embedded in the rules which influence whose preferences will count within the future political process.”° Like the work of Commons, institutional law and economics is grounded in the belief that the law and the economw'are jointly produced; that law is a function of the “7See SAMUELS, supra note 38, at 30. Samuels, supra note 116, at 305. 11"Warren J. Samuels, Reader’s Guide to John R. Comon’s Legal Foundation of Capitalism, in RESEARCH IN THE HISTORY OP ECONOMIC THOUGHT AND METHODOLOGY, ARCHIVAL SUPPLEMENT 5, 1, 3-4 (1996). ”’See Samuels, supra note 116, at 306. 12°See MERCURO & MEDEMA, supra note 34, at 109. economy and that the economy is a function of law.”1 In this approach, no distinction is drawn among jurisprudential, legislative, bureaucratic, or regulatory treatments of law. Instead, all are seen as particular manifestations of the interrelations and mutual interactions between law and the economy.“” These interrelations are such that: A law or legal structure ++ A behavior or conduct of individuals and groups in the legal-economic arena *9 A economic performance.123 Within this legal-economic nexus where the structure of law and the economic system are worked out, legal and economic interests each serve as both dependent and independent variables in the construction of legal-economic realityu““ The legal—economic nexus forms the organizing concept upon which the institutional law and economics approach stands. At the core of this concept is the belief that: 1.) government action cannot be understood independently of its economic consequences and of the forces bought to bear on its selection and generation of those consequences; and that 2.) the economy cannot be 121See Warren J. Samuels, The Legal-Economic Nexus, 57 GEO. WASH. L. REV. 1556, 1567 (1989). MERCURO & MEDEMA, supra note 34, at 110. 122See MERCURO a MEDEMA, supra note 34, at 110. 123See id. 1“See id. at 111. understood independently of its legal foundations and of the decision-making process wherein the answers to the use of government are developed.“25 In every case, the critical issue is who will be able to control and use the legal- economic nexus to control legal-economic continuity or change.126 The need to control legal-economic continuity or change arises from conflicts and problems associated with the interactions between law and the economy. Conflict resolution is provided by the legal system in the determination of legal rights.“27 Law, which is fundamentally a matter of rights creation and re-creation, must continually resolve the fundamental problem of order; namely, the reconciliation of freedom with control, hierarchy with equality, and continuity with change.128 Encompassed within this problem of order is the inevitable necessity of choice on the part of government as to who *will have what rights,”” or who will be able to do what to whom. 13° 12"’See Samuels, supra note 121, at 1560. 126396 id. at 1578. 1“See MERCURO & MEDEMA, supra note 34, at 115. 12'See id; SAMUELS, supra note 38, at 209. 12""Rights are whatever interests government protects vis-é-vis other interests when there is a conflict." Warren J. Samuels, Commentary: An 28 The resolution of conflicts, of whose interest government will allow to be realized and who will be able to use government for what ends, is the resolution of the problem of order in society.131 The extent to which an individual or group can influence the resolution of the problem oflorder is a function of the process of mutual coercion. Where there is a conflict between two private interests, the government must decide which party will have what capacity to coerce the other.132 The meaning of coercion, then, is the ability of one interest (A) to impact the opportunity set of the other interest (B) without its (B's) consent}33 The capacity to exercise coercion is a function of one's power relative to the power of others. Power and the ability to coerce are derived from the assignment of legal rights. Legal rights “define the scope of choices open to each individual and the degree to which each is exposed to the choices of others. . . . The origin of rights in.the resolution of conflicts of interest brings Economic Perspective on the Compensation Problem," 21 WAYNE L. REV. 113, 127 (1974). l3°See Warren J. Samuels, Interrelations Between Legal and Economic Processes, 14 J.L. & ECON. 435, 438, 450 (1972). MERCURO a MEDEMA, supra Tote 34, at 117. 31See MERCURO & MEDEMA, supra note 34, at 115. 3”See Samuels, supra note 130, at 439. to the fore the point that rights have a dual nature—'the Opportunity set enhancement of those who have rights and the opportunity set restriction of those who are exposed to them.“““ It can be said, therefore, that every law or assignment of rights “both increases and decreases freedom, though typically for different people."135 The issue, then, becomes a matter of choice; i.e., which or whose rights will government operate to effectively secure, which rights will government no longer operate to effectively secure, and which new rights will government operate to effectively realize.136 These choices ultimately determine the capacity to participate in the economic decision-making process and are a mode though which relative market or income securing status is given effect.137 The inevitable necessity of choice by government reveals that law is not something that is given or that can be discovered from the study of judicial opinions as 138 analytical traditional modes of legal analysis contend. Instead the use of legal tests, rules, principles, and the ”See id; MERCURO & MEDEMA, supra note 34, at 116. 3‘MERCURO a MEDEMA, supra note 34, at 116. 35Samuels, supra note 130, at 441. I“See id. at 442. 7See id. I’See MERCURO & MEDEMA, supra note 34, at 117. 30 .ike is essentially a “selective and arbitrary" human :hoice process.139 “Their use in any particular case is a matter of decision, of ultimate pure choice. They are not deducible by deductive logic or by inference from the facts. There is no automatic litmus test by which these tests themselves can be selected for applicability. They are categories (empty boxes) with variable selective contents whose adoption is almost if not wholly subjective . "1“ This subjective process, which marks the legal resolution of conflict, necessitates the introduction of value judgments in choosing between competing interests.“1 A Specific interest is made to count through law by exerting control on the lawmaking process. Control is exerted by power, ideology, and selective perception.M2 Through ideology, certain uses of government are selectively perceived as legitimate whereas others are perceived as illegitimate. Selective perception of ideology is employed in order to promote continuity (or change) of certain 13“SAMUELS, supra note 38, at 287. 14°Id. 1“See MERCURO & MEDEMA, supra note 34, at 117. 1“See Samuels, supra note 121, at 1569. 31 activities and consequences of government.“3 These activities and consequences benefit some interests and harm others. The legal change of government, then, “do[es] not provide solutions to Situations of externality, but rather only resolutions," as externalities and hence benefit and harm are channeled in one way or another depending on the predominance of those who have participated and prevailed at each stage of choice in the legal-economic nexus.“‘ n: the end, ideology selectively redefines reality and social value in terms of certain privileged rights and interests which are thereby given enhanced legal protection and power.“5 Through ideology and law, what is perceived as the natural state of things “is in fact both an artifact and a matter of policy and thus subject to change."“‘ “’See Warren J. Samuels, Some Fundamentals of the Economic Role of Government, in FUNDAMENTALS OF THE ECONOMIC ROLE OF GOVERNMENT 167, 168 (Warren J. Samuels ed., 1989). 1“MERCURO a MEDEMA, supra note 34, at 116-117, emphasis authors'. 1”See Samuels, supra note 143, at 168. “Cl-d. 32 An Institutional Perspective on Freedom of Speech and the Must—Carry Issue“7 .At the heart of the must-carry debate is the question of whether a governmental policy that requires a cable operator to carry the Signal of a local broadcaster violates that operator's free speech right as guaranteed by the First Amendment to the U.S. Constitution. The right to free speech is specified in the words: ”Congress shall make no law'. . . abridging the freedom of speech." Resolution of free speech issues, then, requires the court to define the concepts of: ”Congress," “make," ”no law," ”abridging" and “freedom of speech." Adjudication of free Speech cases as well as the academic literature review contained in this study strongly suggest that these concepts are by no means settled or clear and that no “truth" as to what Specifically constitutes an abridgement of freedom of speech has been discovered. Institutionalists would argue then that “[a]ny particular resolution of [a free Speech issue] is the outcome of a variety of complex factors and forces, some readily apparent and some less so, which, Vflfile rendering ex post determinate solutions, do not in 1"The following institutional perspective on freedom of speech was adapted primarily from Steven F. Medema's institutional perspective on the takings issue. See Medema, supra note 37, at 46-49. 33 any conclusive sense render solutions that are 'correct. "'1“ The end result is that someone's freedom is enhanced and someone's freedom is restricted in the adjudication of every free Speech case. The determination that remains is ‘whose freedom will be realized and whose will be curtailed, the decision of which ”reflects the choice of what factors and forces are to govern whether [an abridgement] has occurred.”“9 Legal decisions, while rendering ex post determinate solutions, are aimed at future conflicts, not past. But ex ante society is radically indeterminate and open, with social arrangements, including law, continuously being made and remade. According to institutional theory, ”radical indeterminacy signifies both a necessity of choice marked by inconsistency, as the unresolvable must somehow be given more or less temporary and partial solutions, and an arbitrariness, as those solutions, as functional as they may be, have no ultimate rationale or foundations but instead depend upon and reflect human choice.”so Human choice in the face of radical indeterminacy mandates that some valuational process is involved in the resolution of 1“'Medua, supra note 37 , at 46. 1“Id. at 47 . mSAMUELS, supra note 38, at 273. 34 legal that n constj accorc exist some tree fOrm legal issues.151 If one accepts the premise, for example, that not all government action that restricts Speech constitutes an abridgement of freedom of speech, then, according to institutional theory, a valuation process must exist to distinguish between equivalent Situations so that some are seen as abridgements while others are not. In the free speech arena, “this valuational process has led to the formulation of rules for resolving disputes. While it is typical to contrast a 'rules' approach with a ‘discretion' approach, this is, at the deep level, a false dichotomy." ‘52 The necessity of choice in the formulation and selection of legal rules and in the determination of how the facts of a given case fit the rule chosen is fundamentally a discretionary process.153 This discretionary process is evident in the must- carry issue. In 1985, when the issue first made its way to the D.C. Circuit Court of Appeals, the court applied the O’Brien standard to the facts in the case. The court, however, had ”serious doubts” as to whether its chosen standard was the appropriate rule to apply in the case.“ The court, nevertheless, chose O'Brien (a Standard 1“Medema, supra note 37, at 47. ISZId. 133See id. ”Quincy, 768 F.2d at 1448. 35 originally formulated to adjudicate cases of expressive conduct) because it believed that even under this intermediate scrutiny standard, must-carry violated the First Amendment.155 The recognition of the fact that the court engages in a discretionary process, institutionalists contend, leads to the realization that selective perception is operative in the formulation, selection, and application of legal rules. For example, since not all restrictions on speech constitute an abridgement of free speech rights, ”the chosen rule selectively elevates some interests to protected Status (rights) while other interest are left unprotected (nonrights)."”‘ In Turner I, five justices selected the O’Brien standard157 and four justices selected the strict scrutiny standard158 as the applicable First Amendment rule to be applied in the case. If the strict scrutiny Standard had been chosen by the majority, the outcome would have been reversed, and the rights of the cable operators would have been protected. Instead, the Court determined that the ”’Id. 156Medema, supra note 37, at 47. ”Turner 1, 512 U.S. at 662. Justice Kennedy wrote the opinion of the :ourt. Chief Justice Rehnquist and Justices Blackmun, Stevens, and :outer joined J. Kennedy in this part of the opinion (part III-A). 36 intete protect Institl choice Purely QITOI' Prote View one 1 file. this St. 63x it interests of the broadcasters were more worthy of protection than those of the cable operators. .nmtiundonalists say this illustrates the fact that the cmficecfi which interest should receive protection is purely normative and subjective and that ”there is no a priori reason why any one set of interests Should be protected over others. All of this is a function of one's View of the world, including ideology, reflecting the world one wants to see made and remade through law."‘59 In the application of a rule, selective perception is also at work. Especially important here, with regards to the must-carry issue and the application of the O’Brien Standard,160 is the definition of what constitutes: 1.) free expression, 2.) an important or substantial governmental interest, 3.) the suppression of free expression, and 4.) an incidental restriction on free expression; as well as the determination of: 5.) when a governmental interest is ”'Id. at 680-81 (O'Connor, J., dissenting). Justice O'Connor was joined in her selection of the strict scrutiny standard by Justices Scalia, Ginsburg, and Thomas. u“'Medema, supra note 37, at 47. ”°In United States v. O’Brien, the Court set forth a four-part test to determine when a government regulation that abridges symbolic speech is justified under the First Amendment. The Court said that a government regulation is justified if (1) it is within the constitutional power of :he government; (2) it furthers an important or substantial (3) the government interest is unrelated to free 'overnmental interest; and (4) the incidental restriction is no greater than is xpression; ssential to further that interest. O’Brien, 391 U.S. 367, 376-77 1968). 37 h... IE ex ex it related and when it is unrelated to suppression of free expression, and 6.) when an incidental restriction on free expression is no greater than is essential to further that interest. In addition, selective perception is inherent in the determination and interpretation of the specific governmental interests must-carry is designed to protect and in the juxtaposition of the O'Brien rule with the perceived facts of the case. For example, in the Turner cases, the Court noted that “must-carry was designed to serve ’three interrelated interests: 1.) preserving the benefits of free, over-the-air local broadcast television, 2.) promoting the widespread dissemination of information from a multiplicity of sources, and 3.) promoting fair competition in the market for television programming."161 These three interests were derived from a detailed summary of Congressional findings that included twenty—one separate justifications for the Cable Television Consumer ’rotection and Competition Act of 1992 along with a :atement of the Act's policy goals.162 The selection of ese three interests from a body of detailed findings, :titutionalists maintain, shows the selectivity inherent rner II, 520 U.S. at 189. b. L. No. 102—385, s 2, 106 Stat. 1460, 1460-64 (1992) (codified in tered sections of 47 U.S.C.). 38 in' of was UM The DI! Ob an in the resolution of free speech cases as the determination of whether the must-carry rules violated freedom of speech was based on whether these interests were related or unrelated to the suppression of free expression. The selectivity involved in choosing a specific rule, where many are possible, gives rise to a selective social order, where many are possible. This is accomplished by the obfuscation of loss and legitimization. Through the choice and application of legal rules, “[c]ertain interests become rights and the destruction of these interests becomes loss. At the same time, however, certain interests are deemed nonrights and the destruction of these interests nonlosses.”163 This selective perception is possible, according to Institutional theory, because the adoption of one rule over the other serves to legitimize the decision- making process. “Decisions are seen as in some sense correct or legitimate due to their grounding in a rule."“‘ Thus, acceptance and legitimacy for legal decisions flow from legal rules and, in the end, help to provide the sensation that the decision is anchored in “'high 1"Medema, supra note 37, at 48. 1“ Ida 39 principle’ rather than being the product of the whimsy of the moment."165 ISSId. CHAPTER TWO RESEARCH DESIGN Cable regulation and the must-carry issue have endured a long and contentious history marked by vast disagreements among the four elements of the federal government concerning policy objectives,166 the extent and scope of 7 governmental authority,16 and the constitutional framework 1“ In the final analysis, the applied to cable regulation. Supreme Court selected the O’Brien rule as the constitutional standard upon which the First Amendment challenge of mandatory carriage of broadcast channels would be adjudicated.“59 This standard was selected even though the O'Brien and Turner cases are not directly analogous. Consequently, the application of the O’Brien rule to the facts in Turner appears to be a deviation from the legal reasoning upon which the O’Brien test was formulated. The O'Brien rule grew out of a U.S. Supreme Court case that questioned the constitutionality of a federal statute ““See infra text accompanying notes 260-63, 284—86, 298-301, 344-60 390- 400, 410-12. 1‘7See infra text accompanying notes 264—68. 1“"See infra text accompanying notes 323-26, 332, 375-76. 1"Turner I, 512 U.S. 622, 661-52 (1994)- 41 prohibiting the knowing destruction of a draft card. The Supreme Court formulated the O'Brien test to adjudicate general regulatory statutes that were not intended to ”abridge Speech on its face“70 but which nonetheless incidentally limited expressive conduct in certain circumstancesf‘71 Such statutes are clearly “content-neutral" in that the government's purpose for enacting the Statute is not directed at or connected to the content of speech. Thus the categorization of the must-carry rule as content- neutral is “peculiar“72 to many scholars who believe that the provision is clearly a content-based regulation that favors certain speakers and certain programming over others and places impermissible burdens on the editorial discretion of cable operators by compelling them to carry certain messages.173 The application of the O’Brien rule to the facts in Turner was justified by virtue of the ”special characteristics"r" of the cable medium; namely, the ability of a ”cable operator, unlike speakers in other media, . . . 17°O'Brien, 391 U.S. 367, 375 (1953)- "Frd. at 376. 1”William E. Lee, Manipulating Legislative Facts: The Supreme Court and the First Amendment, 72 TUL. L. REV. 1261, 1308 (1998). 1”See infra note 376. "‘Turner I, 512 U.S. at 661. [to] si flick c cable t needed System because Speech transnu Progr pres S-i These 1 0f the Print. distri "a5 un [to] silence the voice of competing speakers with a mere flick of the switch.“75 The bottleneck characteristic of cable distribution provided the legal reasoning the Court needed to overcome arguments by the Turner Broadcasting System that the must-carry regulation was content-based176 because the purpose for enacting the rules was to “promote Speech of a favored content,“77 “compel cable operators to transmit speech,"r” favor broadcast programmers over cable programming,r” and "single out certain members of the press—here, cable operators—for disfavored treatment."”° These purposes would most likely have justified application of the strict scrutiny Standard if the medium targeted was print.”1 But given the bottleneck characteristic of cable distribution, the Court reasoned that heightened scrutiny was unwarranted.182 The bottleneck or monopoly rule is basically a reformulation of the O’Brien standard that allows courts to 1”Id. at 656 . 176See Lee, supra note 172, at 1308. Lee writes that “the nature of cable is key to the choice of intermediate scrutiny in Turner I." Id. ”7Turner I, 512 U.S. at 646. 17'1d. at 653. 1"Km. at 657. 1“Id. at 659. "1599 id. at 656, 659-61. "’See id. at 646-62. 43 —‘_-—‘V effecti cable 5 dysfunc the Con favored industrJ cable 1 outgrow influenr what exi IEflect. intereg Under1y_ Thea Separatl adjudicg applica. Standdn Conform convsnt: \ It: See id. in S . Be 10f. effectively weaken the degree of First Amendment protection cable systems receive to correct alleged market dysfunctions among communication media. Under this rule, the Court upheld a piece of legislation that clearly favored the economic and Speech interests of the broadcast industry over the economic and speech interests of the cable industry.183 Furthermore, this legislation was an outgrowth of a political process that was heavily influenced by the lobbying efforts of both industries.““ To what extent is the formulation of the bottleneck standard reflective of established legal standards or of the interests of those who prevailed in the case is the underlying subject of this study. Two distinct theoretical approaches postulate two separate answers. Conventionalism says that the adjudication process—of which rule formation and application are a part—is constrained by established legal standards185 and that constitutional interpretation should 186 conform to settled constitutional principles. Because conventionalists believe that constitutional law develops "’See id. at 645. "‘See infra text accompanying notes 289-300. "’See supra text accompanying notes 57-58. 95- "‘See supra text accompanying note 113- indeper standa: ll princir it is a rule 5? princit the ott legal h process mOSt at 0““ en: standa broadc Split 1 1ight proPO: the e' Subse the t inter independently of the-political process, the bottleneck standard Should arise from binding legal rules and principles found in prior case law. In other words, because it is an outgrowth of the O’Brien standard, the bottleneck rule should conform to the settled constitutional principles upon which O'Brien rests. Institutionalism, on the other hand, contends that the formulation of law and of legal rules is a function of the political/economic 7 and an expression of the values of those who are process18 most able to effectively use government to further their own ends.”8 According to Institutionalism, the bottleneck Standard is a reflection of the choices and values of the broadcast industry and of those jurists who prevailed in a Split decisionmaking process. To examine the genesis of the bottleneck standard in light of these two theoretical approaches, this study proposes a three-pronged approach. Prong one will examine the evolution of the 1992 must-carry provision and its subsequent legal challenge to determine the degree to which the formulation of the bottleneck standard reflects the interests of the broadcast lobby. 1"See supra text accompanying notes 120-123. 1”See supra text accompanying notes 34, 41. 45 PI the bot O’Brien provide O’Brie basis i develo( determ Standa law it heces COnSt eStal belt. dete inst knot law COn Ia+ \ as: Prong two will attempt to reconcile the development of the bottleneck rule with prior case law interpreting the O'Brien standard. An evaluation of prior case law will provide a basis for ascertaining the degree to which the O’Brien rule rests on settled principles of law. Once this basis is determined, it will be reconciled with the development of the bottleneck Standard in order to determine the extent to which the new constitutional standard conforms to or deviates from the body of settled law interpreting the O’Brien standard. Prong two is necessary to test the conventionalist notion that constitutional law is constrained by commonly accepted or established legal principles and the institutionalist belief that all law is made and remade to provide ex post determinate solutions. Such solutions, according to the institutionalists, do not carry with them any known or knowable legal standards but merely reflect the choice of lawmakers and jurists. Such choices, the institutionalists contend, are marked by inconsistency and ”have no ultimate rationale or foundations."189 The data gathered for prong two will also be used to assess the degree to which judicial discretion in the application of the O’Brien rule has led to a modified 1"’See supra text accompanying note 150. I readir manner factua variou standa of the basis subseq prong lUdici the it and It to thy estab COunt and t the I that reading of the O'Brien standard. An evaluation of the manner in which the standard has been applied to differing factual Situations will be assessed to determine how various jurists have interpreted and applied the O’Brien standard. This assessment contrasted with the application of the O’Brien rule in the 1968 O’Brien case will provide a basis for determining how judicial discretion has impacted subsequent readings of the O'Brien standard. This third prong is necessary to test the conventionalist notion that judicial discretion is only exercised in a weak sense190 and the institutionalist claim that legal decisions depend upon and reflect human choice.“” Judicial discretion, according to the conventionalists, is guided and directed by established legal principles.192 The institutionalists counter that the formulation and selection of legal rules and the determination of how the facts of given case fit the rule chosen is fundamentally a discretionary process 193 'that has no ultimate rationale or foundation. This prong is also important in that it will provide an understanding of the extent to which the judicial discretion of those jurists who have prevailed in a split or fractured 1”See supra text accompanying note 35. 191See supra text accompanying note 39. 192See supra text accompanying note 35- 1”See supra text accompanying notes 150-53. 47 decision-making process has led to increased regulation of free speech activities. The purpose of this Study is two-fold. On one level, this study seeks to provide a better understanding of how the bottleneck standard developed. And on a more general level, this research hopes to provide insight into how First Amendment law evolves and changes and how judicial discretion impacts that evolution and the regulation of speech. The method proposed to investigate these developments in First Amendment law is traditional legal research. Traditional legal research “involves an exhaustive examination of legal materials.”“" The legal materials to be examined in this study include: 1.) an expansive case law history of the O'Brien standard; 2.) a vast and extensive legislative record that includes more than 18,000 pages of evidence that Congress compiled over three years plus various Studies conducted by the FCC and broadcasting and cable groups; 3.) court briefs and filings from the various Turner court decisions; 4.) any other additional records or materials that provide an understanding of the genesis of the bottleneck standard. Through an extensive examination of the legal data 1"Donald M. Gillmor & Everette E. Dennis, Legal Research in Mass Conununication, in RESEARCH METHODS IN MASS COMMUNICATION 331, 332 (1989) . discus 1.) th standa the ex functi and as which in the extent subseqi this c regular Tc the co SerVic {Etrie COllec by we: discussed above, this study aims to discover the following: 1.) the extent to which the development of the bottleneck standard was constrained by established legal standards and the extent to which those established standards were a function of the various analogies used, definitions applied and assumptions employed by the jurist; 2.) the extent to which the interests of the broadcast lobby were reflected in the development of the bottleneck standard; 3.) and the extent to which the need for judicial discretion in subsequent applications of the O'Brien rule has modified this constitutional standard and led to increased regulation of Speech activities. To gather the proposed data, this study used LEXIS, the computer-assisted legal research service. The LEXIS service was supplemented with a traditional law library retrieval process. LEXIS was chosen as the primary data collection tool because it allows the researcher to search by word or phrase through its database, which includes full text opinions of all published federal and state cases as ‘well as briefs and records for U.S. Supreme Court cases,”5 federal and state legislation, and legislative histories.”6 1”Briefs and records for U.S. Supreme Court cases included in the LEXIS database begin with the October 1979 Term and, therefore, include the Turner cases. See J. MYRON JACOBSTEIN, ET AL. , FUNDAMENTALS OF LEGAL RESEARCH 457 (6“ ed. 1994). ”‘See id. at 530. 49 In add as a c is abl interp the nu charac the ou l that j bottle prior is imp the o' a Firs Struck absent Cable commOn thIOug Princi] ConVen1 princi} \ 15‘. luRaz ’ S l); 399 t6 In addition, LEXIS provides methods for using the database as a citator.”’7 Using LEXIS in this manner, the researcher is able to ascertain the subsequent judicial history and interpretation of the O'Brien rule, which was applied to the must-carry rules in light of the bottleneck Characteristic of cable distribution. It is important to the outcome of this study to determine the legal principle that justifies the O'Brien rule. For example, if the bottleneck rule was initially developed in Turner I and no prior case precedent exists that used the concept, then it is important to determine whether the underlying purpose of the O'Brien rule is served when O’Brien is used to overcome a First Amendment challenge that otherwise would have been Struck down as unconstitutional under Strict scrutiny absent the finding of the bottleneck characteristic of cable distribution. While ”the doctrine of precedent . . . commonly includes the understanding that laws developed through precedent are subject to amendment by the use of principles,"198 the amended rule, according to conventionalism, must conform to the authoritative Principle from which it was formulated.”9 mSee id. at 548. 1"'Raz, supra note 25, at 840. ”’See text accompanying supra notes 113-14. '1 qreate The LE that l Boweve challe which €Xpres Which lEgal eXpres Provic langu; Synthe that e The LEXIS database service provides access to a wealth of information more efficiently than in a law library setting and, therefore, allows the researcher to analyze a greater volume of data than would otherwise be possible. The LEXIS service, like this study, is built on the premise that law is constructed through a process of naming.”° However, recognizing the ambiguous nature of language, the challenge for this study was to consider all the ways in which the idea of the bottleneck standard may be expressed.201 This is particularly important for this study, which proposes to trace the development of an emerging legal rule. In areas of emerging law, consistent forms of expression or “buzz—words" may not exist.202 LEXIS, however, provides “ways of overcoming the imprecise nature of "203 language through “incorporated features that serve as "204 synthetic thesauri and associative retrieval protocols that allow the user to retrieve information on more complex 2°°See JACOBSTEIN, ET AL., supra note 195, at 536-44. 201An initial list of search words and phrases to be used within the framework of instructions to the LEXIS database service include: bottleneck monopoly power, bottleneck monopoly control, bottleneck control, and bottleneck. Words and phrases associated with the concept of the bottleneck standard may also be used and could include such terms as: anticompetitive, fair competition, economic harm, and economic health. 202See JACOBSTEIN, ET AL., supra note 195, at 544. ZOJl-d. 2041a. 51 issue an on ident aid t upon retri Once light study Stand. issues and to develop a search description with the help of an online legal thesaurus, which includes a phrase identification system.205 The LEXIS database service provides a powerful tool to aid the researcher in the retrieval of the legal materials upon which this study is based. Nevertheless, data retrieval is but one phase of the legal research process. Once the materials are gathered they must be analyzed in light of the two theoretical approaches that frame this study. In other words, the formulation of the bottleneck standard in the Turner decisions must be examined for evidence of conformity with 1.) established legal rules and settled constitutional principles found in related case law, 2.) the policy and legal arguments put forth by the broadcast industry supporting the enactment and constitutionality of the must-carry statute, and 3.) modified readings of the O'Brien rule found in related case law. In this manner, the study will be able to determine the extent to which the development of the bottleneck Standard was constrained by the application of established legal Standards and the extent to which the political process and judicial discretion impacted the formulation of this constitutional rule. In the end, if the analysis shows "’See id. at 542. that t legal theore predic conver standa the d; insti1 strom the de legal audit. develq modif. of ho' COnfo will Predi expec that the bottleneck rule was largely based on established legal standards, then it may be concluded that the theoretical approach of conventionalism is a better predictor of this adjudication process. However, if the converse is true and the formulation of the bottleneck standard is not based on established legal principles, then the data must be evaluated for evidence that supports the institutionalist perspective. Such evidence may include a strong correlation between the legal reasoning surrounding the development of the bottleneck rule and the policy and legal arguments put forth by the broadcast lobby. In addition, the data must be examined for evidence that the development of the bottleneck Standard conforms to some modified reading of the O’Brien precedent. A determination of how closely such a modification of the O’Brien standard conforms to or deviates from established legal principles will provide the means to conclude which theory is more predictive of the adjudication process. While this study expects to find that the formulation of the bottleneck standard resulted from elements of both theoretical approaches, the central question becomes which theory better explains the outcome of this constitutional challenge? And what does this finding say about the 53 evolut speeci evolution of First Amendment law and the regulation of free speech? The br IE CHAPTER THREE EVOLUTION OF CABLE REGULATION AND THE MUST-CARRY ISSUE The Regulation of Cable Television Cable television, which has grown alongside television broadcasting Since the 1940s, developed before a national regulatory policy was in place.206 In the early years, cable operators primarily transported local broadcast Signals into areas too remote to receive over-the-air reception or too small to support a local television station.207 The FCC declined jurisdiction over this medium until 1965. By then the industry had developed microwave facilities that could receive distant broadcast signals, which were then converted into an electronic impulse and delivered to subscribers over a coaxial cable.208 The growth of the industry in certain areas gave cable operators the ability to offer programming unavailable from the local television 209 broadcaster; This development alarmed broadcasters, who 2“See Daniel Brenner, Cable Television and the Freedom of Expression, DUKE L.J. 329, 329 (1988). 2""See Daniel J. Smith, Note, Stay the Course: A History of the FCC ’5 Response to Change in the Cable Industry, 13 J. L. & POLITICS 715, 725 (1997). "‘See JONATHAN W. EMORD, FREEDOM, TECHNOLOGY, AND THE FIRST AMENDMENT 252 (1991) . ”’Smith, supra note 207, at 726. 55 té int pro and; econ cable Suffe that . Potent too So. said: i believed that a nationwide cable system would eventually supplant local broadcast television.210 The FCC responded to broadcasters’ concerns, and, in 1965, adopted rules that required cable systems using microwave service to carry the signals of local television broadcasters and prohibited them from importing signals that duplicated local television programming.211 The FCC'S must-carry and nonduplication rules were intended to prevent cable’s entry in the television programming market from reducing local television’s audience share and, thereby, adversely impacting the economic viability of local broadcasting.212 Although the cable industry argued that local broadcasters had not suffered any widespread economic harm, the FCC contended that the "likelihood or probability of adverse impact upon potential and existing [local broadcast] service has become too substantial to be dismissed.“13 Regulation, the FCC said, was necessary to “safeguard the public from future 21°See EMORD, supra note 208, at 252. The number of cable systems grew from 550 in 1959 to 1,300 in 1965. The number of subscribers increased from about 1.5 million in 1959 to some 4.0 million in 1965. See 1965 Cable Rules, supra note 5, at 709. 211See 1965 Cable Rules, supra note 5, at 686. 212See id. at 702-03. 213Id. at 713 . th 0p. reg injury."”” The Commission’s goal was to integrate cable service into the national television structure in such a way as to promote maximum program Choice while protecting the local television station from financial harm.“5€m3 accomplish its objective, the Commission, in 1966, extended the must-carry and nonduplication rules to all cable operators that delivered at least one broadcast Signal, regardless of the means used to obtain the signal,216 and instituted a ban on the importation of distant signals into any of the top one hundred television markets unless the importation would not threaten existing UHF Stations.217 The importation ban was justified as a means of protecting struggling large market UHF stations that the FCC believed had a good chance of success. History has demonstrated, though, that cable carriage actually helped the inferior UHF Signal gain parity with the stronger VHF signal and Zl‘Ido 21“Amendment of Subpart L, Part 91, To Adopt Rules and Regulations To Govern the Grant of Authorizations in the Business Radio Service for Microwave Stations to Relay Television Signals to Community Antenna Systems, 2 F.C.C.2d 725, 746 (1966) [hereinafter 1966 Cable Rules]. ZICId. ’1’Id. at 782. The importation ban lasted until 1972 when the FCC granted cable systems a limited right to import distant signals into major markets. Amendment of Part 74, Subpart K, of the Commission’s Rules and Regulations Relative to Community Antenna Television Systans; and Inquiry Into the Development of Communications Technology and Services To Formulate Regulatory Policy and Rulemaking and/or Legislative Proposals, 36 F.C.C.2d 143, 164-65 (1972) [hereinafter 1972 Cable Rules]. 57 I de 99 ca. sys tel com; Cohm outt that the 1966 importation ban protected the interests of urban VHF Stations more than any other category of broadcast Station.218 In a 1968 decision upholding the Signal-importation ban, the U.S. Supreme Court reinforced the FCC’S powers to regulate cable television}:19 Encouraged by the Court’s decision, the FCC in 1969 imposed the fairness doctrine, equal time, and program origination requirements on all cable operators.”20 A year later, the FCC prohibited cable systems from cross-ownership in television networks, television stations, translator stations,221 and telephone companies that operated in the systemfs service area.”22 The Commission also restricted pay cable systems from outbidding broadcast stations for the rights to televise 21'See PATRICK R. PARSONS & ROBERT M. FRIEDEN, THE CABLE AND SATELLITE TELEVISION INDUSTRIES 43 (1997). 219United States v. Southwestern Cable Co., 329 U.S. 157 (1968). 220Amendment of Part 74, Subpart R, of the Commission’s Rules and Regulations Relative to Community Antenna Television Systems; and Inquiry Into the Development of Communications Technology and Services To Formulate Regulatory Policy and Rulemaking and/or Legislative Proposals, 20 F.C.C.2d 201, 219, 223-25 (1969) [hereinafter 1969 Cable Rules]. 121Amendment of Part 74, Subpart K, of the Commission’s Rules and Regulations Relative to Community Antenna Television Systems; and Inquiry Into the Development of Communications Technology and Services To Formulate Regulatory Policy and Rulemaking and/or Legislative Proposals, 23 F.C.C.2d 816, 823 (1970) [hereinafter 1970 Cable Rules]. ’“Applications of Telephone Companies for Section 214 Certificates for Channel Facilities Furnished to Affiliated Community Antenna Television Systems, 21 F.C.C.2d 307, 330 (1970). on ad 9V6 dSS dfll tele are tele‘ Purci movies, television series, and sporting events.223 In 1972, the FCC extended the nonduplication rules to cover syndicated as well as network programming and restricted the number of distant signals that a system may carry based on the Size of the market and its ability to absorb additional competition.”“ By 1972, FCC regulations “covered every aspect of cable operations.“25 The Commission justified the breath of its regulatory effort on the assumption that competition from cable television would drive viewers and advertisers away from local broadcast television, resulting in lower profits for the station and a reduction in the overall quantity of conventional television programming for local consumers unable to purchase cable.”6 Cable’s technological advances, however, helped it overcome the restrictive content regulations imposed on the broadcast media. In 1974, the first U.S. domestic satellite 223Amendment of Part 74, Subpart R, of the Commission’s Rules and Regulations Relative to Community Antenna Television Systems; and Inquiry Into the Development of Communications Technology and Services To Formulate Regulatory Policy and Rulemaking and/or Legislative Proposals, 23 F.C.C.2d 825, 830-31 (1970) [hereinafter 1970 Cable Rules], vacated, Home Box Office v. FCC, 567 F.2d 9 (D.C. Cir. 1977), cert. denied, 434 U.S. 829 (1977). 22‘See 1972 Cable Rules, supra note 217, at 165. 225Smith, supra note 207, at 734. ’"Inquiry Into the Economic Relationship Between Television Broadcasting and Cable Television, 65 F.C.C.2d 9, 9 (1977) [hereinafter 1977 Cable Economic Impact Inquiry]. 59 was 1 dish globa of th addit inter for t channT down 4 Cable Progra for t) Cable mOre t SPOIt betWee lUStif 32! was launched.”27 Others soon followed, and cable systems with dish antennas began importing Signals on a national and global scale.”28 Satellite technology sparked the emergence of the cable superstation and allowed cable operators to ,,229 In offer subscribers a “plethora of programming options. addition, the satellite-based system reduced the amount of interference and greatly improved picture quality.”° In Home Box Office v. FCC,231 the U.S. Court of Appeals for the District of Columbia Circuit relied on the expanded channel capacity a cable system could support to Strike down the FCC’S "pay cable" rules. These rules restricted cable companies from televising feature film and sports programs if a separate program or channel fee was Charged for this material, prohibited commercial advertising on pay cable channels, and limited cable companies from devoting more than 90 percent of their cablecast time to movies and sports programs.232 The court held that important differences between the nature of broadcast and cable television justified a distinction in the "’First Amendment standards 22"See SYDNEY W. HEAD ET AL., BROADCASTING IN AMERICA 60 (8th ed. 1998). ’"See EMORD, supra note 208, at 254. 22’Id. 23‘’See id. 231567 F.2d 9 (D.C. Cir. 1977), cert. denied, 434 U.S. 829 (1977). “’See id. at 19. um; rec cou cha; the trad {€111 O’Br. when Under in {1969; 234. 1d. Id. 235 applied to them..'"2‘33 The First Amendment analysis applied to the broadcast media "cannot be directly applied to cable television Since an essential precondition of that theory—physical interference and scarcity requiring an 'fl“ The court umpiring role for government—is absent. recognized that the cable technology available at this time could support up to 80 channels and that “in the future channel capacity may become unlimited.”35 In the absence of the scarcity rationale, the court viewed the FCC’S rules as a content regulation that needed to be squared with traditional free speech theory. The standard the court relied upon was the O’Brien test. In united States v. O’Brien,236 the Court set forth a four-part test to determine when expressive conduct merits First Amendment protection. Under O’Brien, a government regulation is justified if 1.) it is within the constitutional power of the government; 2.) it furthers an important or substantial governmental interest; 3.) the government interest is unrelated to free 233Id. at 43 (quoting Red Lion Broadcasting Co. v. FCC, 395 U.S. 367, 386 (1969)). ’“Id. at 44-45. mId. at 45. ‘”391 U.S. 367 (1968). 61 er th cor cle ser‘ purg cour t0 k; Siphc was it expression; and 4.) the incidental restriction is no greater than is essential to further that interest.237 The FCC argued that the pay cable rules were not intended to suppress free speech but to protect the "viewing rights of those not served by cable or too poor to pay for cable."238 However, the court found that the “sole effect of the rules is to prohibit the cablecaster from exhibiting . . . the artistic work of others," and therefore violated the First Amendment.”” Furthermore, the court said "[tJhe no-advertising and 90 percent rules clearly violate O’Brien’s . . . criterion. Not only do they serve no ’important or substantial interest,’ they serve no purpose which will withstand scrutiny on this record."*” The court found that the FCC had ”not put itself in a position to know" whether its assumption that cable systems would siphon off popular broadcast programming absent regulation was ”a real or merely a fanciful threat."2"1 Instead, the Court admonished the Commission for engaging in "Speculation and innuendo."“2 231See id. at 377. 2”Home Box Office, 567 F.2d at 48. “’Id. at 49. “91d. at 50. “‘Id. ZCZId. annc loca some incr pret QXpe IlOtE gror Cho; {Edi may whi] is . Immediately following the HBO decision, the FCC announced that it would study cable television’s impact on 2“ In a 1979 report on the economic local broadcasting. relationship of broadcasting and cable television, the Commission concluded that competition from cable did not threaten the economic viability of broadcasting or significantly disadvantage non-cable viewers.”“ "[WJhile some TV stations will undeniably face the prospect of increased competition as a result of cable," the FCC predicted, “few, if any, TV stations are likely to experience a reduction in real income."“5 The FCC further noted that some of its cable rules actually impeded the growth of cable television. Rules that restricted program choices for which consumers were willing to pay not only reduced the demand for cable television but "because of the diminished attractiveness of investment in the industry" may also have decreased the overall number of cable systems 'which were constructedum“ The future of cable, the FCC said, is ”very dependent upon the ability of cable systems 2“1977 Cable Economic Impact Inquiry, supra note 226, at 9. ’“Inquiry Into the Economic Relationship Between Television Broadcasting and Cable Television, 71 F.C.C.2d 632, 713-14 (1979) [hereinafter 1979 Economic Relationship Inquiry]. 2""l'd. at 713 . field. at 661 . 63 di of €X< to the pro PIO‘ The Cabl 14! operators to offer consumers additional programming choices and innovative services at attractive prices."”” The Commission estimated that cable’s penetration was unlikely to exceed 48 percent of the nation’s television 248 households. But even at penetration rates much higher than predicted, the Commission said ”[t]he effect of audience diversion on revenues . . . simply is not sufficient to offset the general growth in demand for TV advertising except in rare cases."*” Given these findings the FCC moved to eliminate the syndicated program exclusivity rules and 250 the limitations on distant Signal carriage. These 1 provisions were repealed the following year25 amid “furious protests from broadcasters."252 The Must-Carry Rules and the D.C. Court of Appeals The FCC’S 1979 inquiry reexamined nearly every type of cable regulation, but the must-carry rules were excluded 2”Id. at 662. “'Id. at 713. 269Id. ’“Cable Television Syndicated Program Exclusivity Rules, 71 F.C.C.2d 1004, 1054 (1979) [hereinafter 1979 Syndicated Exclusivity Rules]. 251See Cable Television Syndicated Program Exclusivity Rules and Inquiry into the Economic Relationship Between Broadcasting and Cable Television, 79 F.C.C.2d 663, 663 (1980) [hereinafter 1980 Syndicated Exclusivity Rules]. 252PARSONS a FRIEDEN, supra note 218, at 56. AP sa ca; gox Thi is Ame) 253 from reconsideration. Even Congress, when it passed the Cable Communications Act of 1984,2“ avoided the issue of 2” Instead review of the regulation fell broadcast carriage. to the judiciary, and in 1985, the D.C. Circuit Court of Appeals decided Quincy Cable TV, Inc., V; thL2“ The court said the must-carry rules transfer content control from cable operators to local broadcasters, who already have a government-granted delivery mechanism for their message.257 This intrusion into a cable operator’s editorial autonomy is deep and would constitute a clear violation of the First Amendment if analyzed under the strict scrutiny standard.258 259 Applying the O’Brien rationale, the court of appeals found that in the twenty years Since the must-carry rules 233The FCC also refused to review network nonduplication and the sport blackout rules. See 1979 Syndicated Exclusivity Rules, supra note 215, at 1006. 2“Pub. L. No. 98-549, 98 Stat. 2779 (codified in scattered sections of 47 U.S.C.) [hereinafter 1984 Cable Policy Act]. 2”See Smith, supra note 207, at 739 n.181. 2”768 F.2d 1434 (D.C. Cir. 1985) cert. denied, 476 U.S. 1169 (1986). 25’Id. at 1452-53. ’"See id. at 1453 (citing Miami Herald Publ’g Co. v. Tornillo, 418 U.S. 241 (1974)). Strict scrutiny is commonly applied in cases where the regulation at issue is content-based. See Police Dep't v. Mosley, 408 U.S. 92, 127 (1972). Strict scrutiny requires the government to show that the regulation serves a compelling interest and the means to accomplish that interest are the least destructive of First Amendment rights. See id. 2”In determining the appropriate standard of First Amendment review, the D.C. Circuit Court found, as it did in Heme Box Office v. FCC, that cable television warrants a more demanding standard than the one which the Court has applied to the broadcast media. However, the D.C. Court expressed doubts about the appropriateness of the O’Brien test, which 65 fa to 19 en; int sta had whet real fell to 1 alsc is c] burn. 11m. 1309’; COur. it {I exac‘ 1448 .Set 2&2 244' Id. were enacted, the FCC had “never seriously examined" the ”Speculative premises" upon which the rules were based.“° Although the FCC contended that the rules were necessary to preserve free, locally-oriented television, the Commission failed to demonstrate that cable posed an economic threat to local broadcast stations.261 Instead, evidence from its 1979 economic report showed that VHF licensees were enjoying an "abnormally high rate of return" on their investment, and "could anticipate a ’steady growth in . . . station revenues’ in the future.""52 The FCC, the court said, had again failed to “’put itself in a position to know’" whether the destruction of free, local television was "’a real or merely a fanciful threat.’"“”.As a result, the FCC fell short of demonstrating that the rules were necessary to further a substantial governmental interest. The court also said that the must-carry regulation was "’grossly' is commonly applied to content-neutral regulations that incidentally burden speech. The must-carry rules, the court said, coerce speech and limit an “operator’s otherwise broad discretion to select the programming it offers its subscribers." Quincy, 768 F.2d at 1452. The court, nevertheless, stopped short of applying strict scrutiny because it found that under O’Brien, the “rules so clearly fail" that a more exacting level of First Amendment scrutiny was unnecessary. Id. at 1448. 2“"Id. at 1442, 1457. "‘See id. at 1454-57. ’“Id. at 1456 (quoting 1979 Economic Relationship Inquiry, supra note 244, at 661). ””Id. at 1457 (quoting Home Box Office v. FCC, 567 F-Zd 9. 50 (1977))- Fl SY Opt mar can OPPC fail inter left ”adeq the 9 Carry overinclusive," protecting "each and every broadcaster regardless of the quantity of local service available in the community and irrespective of the number of local outlets already carried by the cable operator."““ The court found that the rules applied to each and every local broadcast station in an area even if the Station carries no local programming or the programming carried is duplicative of the viewing fare already transmitted by the cable 265 system. In some instances, the court noted, cable operators were obligated to carry more than twenty mandatory signals.266 The exhaustive nature of the regulation "saturated" Significant numbers of cable systems with must- carry Signals, depriving cable programmers of “any opportunity at all to sell their services.""” The FCC'S failure to establish a numerical baseline to support its interest of preserving free, community-oriented television left the court unable to determine whether the rules were ”adequately tailored to pass constitutional muster."“” In the end, the court determined that as drafted the must- carry rules violated the First Amendment. 2“Id. at 1460 (quoting Home Box Office, 567 F.2d at 50). 2”I'd. 2“Id. at 1460, n. 51. 2“Id. at 1445. 26'Id. at 1461 . 67 $118 the 111115 Cli Co 19 TIE The FCC declined to appeal the Quincy decision and 69 suspended its enforcement of mandatory carriage,2 arguing that there was no way to constitutionally reinstate the must-carry rules.”° Broadcasters then converged on Congress, claiming that the FCC had abrogated its duties.’71 Although Congress was reluctant to tackle the issue itself, many members of Congress urged the FCC to act.’72 By late fall of 1985, with most major broadcasting organizations asking for new must-carry rules, the FCC agreed to reconsider the issue.273 In August 1986, the Commission adopted a new, more limited set of rules after an industry compromise agreement between broadcast and cable interests fell through amid criticisms from noncommercial broadcasters, who charged industry leaders with excluding public television from the closed-door negotiation process.“‘ 2“Amendment of Part 76 of the Commission's Rules Concerning Carriage of Television Broadcast Signals by Cable Television Systems, 1 F.C.C.R. 864, 864 (1986), recon. denied, 2 F.C.C.R. 3593 (1987) [hereinafter 1986 Mandatory Signal Carriage Rules]. 270Cable Television Service; Suspension of Certain Rules, 50 Fed. Reg. 38,003 (1985). 271See The Deal Is Done on Must Carry, BROADCASTING, Mar. 3, 1986, at 34. “"1986 Mandatory Signal Carriage Rules, supra note 269, at 867. ZTJId. 27‘See The Deal Is Done on MUst Carry, supra note 271, at 33-34; Tracking 10 Years of Must-Carry Machinations, BROADCASTING, Nov. 13, 1989, at 37. al* 911‘; cat no swi tra anti ful. mus- bro Per Cha exe Cha With the adoption of the new regulation, the FCC altered its approach to mandatory carriage. No longer did the Commission argue that carriage was needed indefinitely to ensure the economic stability of local broadcasting.275 Instead, the FCC instituted a two-prong approach that sought to integrate an over-the-air antenna-based environment with cable technology. This approach required cable systems to offer to install A/B selector switches at no additional cost to subscribers.’” By simply flicking a switch, cable subscribers could select between programming transmitted via the cable system or over the air to an antenna. The FCC estimated that this new device would be fully operational in five years277 and adopted an interim must-carry policy to ensure viewer access to local broadcasting over the course of the five-year transition period. The transitional must-carry rules limited how many channels a cable carrier must carry and provided an exemption from the regulation for operators with twenty channels or fQWEIQTm Cable carriers with between twenty-one ’“See Mandatory Signal Carriage Rules, supra note 269, at 880. 276See id. at 886. 27"Id. ’"Id. at 888. Cable systems with 20 or less usable activated channels were required to carry one qualified noncommerical educational station or translator. If no educational station or translator was located in the cable community, then the system was exempt from the must-carry rules. See id. 69 an br mo ch p0 ml the Che iii dor Ste Che age as and twenty-Six channels were required to carry up to seven broadcast channels, while carriers with twenty-seven or more channels were told to devote up to 25 percent of their channel capacity to must-carry signals.’” In addition, the pool of potential must-carry channels was limited to those that could meet minimum viewership Standards and to those that were not affiliated with the same commercial network 2” The new rules also limited as a Channel already carried. the number of noncommercial stations that a cable system was required to carry. A cable system with fewer than fifty-four channels was required to devote at least one channel to a noncommercial station}81 For a system with fifty-four or more channels, the channel requirement doubled for each system to two noncommercial broadcast stations.282 Shortly after the new rules were released, they were challenged by several cable television operators, and once again the D.C. Court of Appeals struck down the regulation as “unjustified" and "unduly sweeping."233 The FCC’S "’See id. 2”See id. at 887-88. 2“See id. at 888. 2”See id. ’"Century Communications Corp. v. FCC, 835 F.2d 292, 297 (D.C. Cir. 1987), cert. denied, 482 U.S. 1032 (1988). 70 jt SU 10 US ta: 90) Fix the th. th. ev to 2h 3'5. in. 2!: judgment, the court said in Century Communications v. FCC, is based on “highly dubious assertions" that are "more speculative than reala"““ The court found no empirical support for the contention that cable companies would drop local broadcasters without mandatory carriage285 and that viewers needed five years to purchase and become adapt at using selector switches.“” In the end, the FCC had again failed to demonstrate that the rules advanced a substantial governmental interest and were narrow enough to satisfy the First Amendment concerns. As a result, the court held that the reimposition of the provisions violated the First Amendment.287 The court emphasized that it was not suggesting that broadcast carriage was unconstitutional per se, but that the government failed to provide any empirical evidence or sound reasoning that would support a decision to the contrary?88 "51d. at 300. mm. at 303. mm. at 301. 2"Id. at 293. "'Id. at 304 . 71 Te SC 1710. The Turner Decisions and the 1992 Cable Act Following the Century decision, the National Association of Broadcasters and the National Cable Television Association begin working on an industry solution to the carriage issue.“” The NCTA seemed willing to work out a compromise in order to relieve some of the political pressure from members of Congress and the broadcast industry who were calling for the reregulation of 290 the cable industry. Reregulation interests ranged from price caps on basic subscriber service to demands for a new must-carry statute to a requirement that cable companies make their programming available to competing technologies.””.Although the cable industry saw an agreement on carriage as a way to diminish the political friction between the two industries, the cable industry was unwilling to guarantee a VHF channel position for UHF Stations.”2 In July 1989, the two organizations reached a compromise on carriage and channel repositioning, but the deal collapsed when the Association of Independent "’See Tracking 10 Years of Must-Carry Machinations, supra note 274, at 38; Deregulation Reduced to Four-Letter Word at NAB, BROADCASTING, Apr. 11, 1988, at 35. 2”See Cable the First Forty Years, BROADCASTING, Nov. 21, 1988, at 45; The Big Chill on Capitol Hill, BROADCASTING, Apr. 17, 1989, at 29; and The Grace Under Pressure of Jim Mooney, BROADCASTING, May 22, 1989, at 39. mSee Danforth Throws the Book at Cable, BROADCASTING, Nov. 20, 1989, at 29; The Big Chill on Capitol Hill, supra note 255, at 27, 29. 72 Te ar thr an: the NOE and 198_ Sena mOn‘ PIOT SSE Television Stations rejected the agreement.293 The INTV argued that the channel repositioning provisions would permit cable operators to Shift UHF independents from their current cable channel position, many of which were in VHF slots, to their less desirable broadcast channel spot on the UHF band.”“ Although the NAB and NCTA vowed to continue the negotiations, views over Channel positioning hardened, and the likelihood of a compromise all but vanished as, by the year’s end, the NAB began calling for legislation that would ”force cable Operators to carry most local Signals and turn over 20 percent of their basic cable revenues as payment for retransmitting those Signals."2"5 In the meantime, Congress continued its overall analysis of the cable industry, holding five hearings in 1989 and Six more in 1990 and 1991.”” In January 1992, the Senate finally passed its version of 1992 Cable Act.297 Nine months later, House and Senate conferees approved the provision, sending the measure to President Bush, who 292See The Grace Under Pressure of Jim Mooney, supra note 290, at 38-39. 293See The Must-Carry Deal That Almost Was, BROADCASTING, July 17, 1989, at 27-28. ’“See id. at 27. ”’On the Brink of War, NAB Tells Cable: It’s Cash and Carry Time, BROADCASTING a CABLE, Dec. 4, 1989, at 35. ”‘See Fitzgerald, supra note 9, at 332. 2”See 138 CONG. REC. S760 (1992)- 73 vetoed the bill on October 3, 1992.298 President Bush believed the legislation would drive up industry costs, stalling the growth of cable and resulting in higher subscriber rates for consumers.”9 Congress disagreed and overrode the President’s veto on October 5, 1992, making the Cable Television Consumer Protection and Competition Act law.300 The Act, which amended the Communication Act of 1934, required cable systems to carry local television stations in an effort to promote increased competition in the cable television market.301 The 1992 requirements, like the must-carry rules struck down in Century, were proportional to the total number of channels available on the cable system,“” In general, a cable system with twelve or fewer channels was required to carry at least three broadcast channels.303 A system with more than twelve usable channels was required to devote at least one-third of its channel capacity to broadcast Signals.““.An operator with fewer than three hundred subscribers was exempt from the 2”'See 138 CONG. REC. $16666 (1992)- ”’See id. 300Pub. L. No. 102-385, 106 Stat. 1460, 1504 (1992) (codified in scattered sections of 47 U.S.C.). 3011,}, 55 2(a)(16), (b)(4)-(5), 106 Stat. at 1460, 1463. 302Id. 5 4(b)(1), 106 Stat. at 1471. 303See id. 5 4(b)(1)(A), 106 Stat. at 1471. ’“See id. 5 4(b)(1)(B), 106 Stat. at 1471. 74 St ch th pr Cd th‘ SE t1 provision, and all operators were free to chose among broadcasters when demand exceeded the supply of required channels.305 What distinguished the 1992 Act, however, were the steps Congress took to fend off a probable constitutional 3“ First, the Act provided for direct appeal to challenge. the U.S. Supreme Court from a federal district court. This provision allowed a constitutional challenge to mandatory carriage to bypass the D.C. Court of Appeals, which had twice previously declared such rules unconstitutional.307 Second, the Act provided a detailed summary of its findings that included twenty-one separate justifications for the Act, along with a Statement of the Act’s policy goals.308 Included among these findings were assertions that the cable industry had undue market power over consumers and video programmers and that the industry had become vertically integrated and highly concentrated with high barriers to entry.309 As a result of this market Structure, the Act concluded that cable operators "have the incentive 305See id. 5 4(b)(l)-(2), 106 Stat. at 1471. ”‘See Fitzgerald, supra note 9, at 333. 307See id.; 1992 Cable Act 5 23. 105 Stat. at 1500' 30“1992 Cable Act 5 2(a)(1)-(21), 106 Stat. at 1460-63. augee id, 5 2(a)(4)-(5), 106 Stat. at 1460. 75 r—-a U) m and ability to favor their affiliated programmers," which ”could make it more difficult for noncable-affiliated [broadcast] programmers to secure carriage on cable systems."’”.Absent mandatory carriage, Congress feared that this economic incentive would cause cable systems to ”delete, reposition, or not carry local broadcast signals.”11 Such action by the cable industry would “seriOusly jeopardize" the ”economic viability of free local broadcast television and its ability to originate quality local programming.”12 Finally, Congress also attempted to overcome the O’Brien test by providing Six separate findings devoted to ensuring the court that mandatory carriage furthered a substantial government interest. Among the interests listed in the Act were the following: 1.) ”promoting a diversity of views provided through multiple technology media," 2.) ”ensuring that cable subscribers have access to local noncommercial educational Stations," 3.) ensuring that ”all nonduplicative local public television services" were "available on cable systems," 4.) "providing a fair, efficient, and equitable distribution of broadcast 310Id. 5 2(a)(5), 106 Stat. at 1460. 311Id. 5 2(a)(16), 106 Stat. at 1462. 312Ide 76 services," 5.) ensuring the continuation of local origination of programming, and 6.) "promoting the continued availability of free television programming."313 Despite Congressional attempts to thwart a constitutional challenge to the 1992 must-carry provisions, the Turner Broadcasting System filed suit against the government the day Congress passed the Act.“‘ Turner Broadcasting System v. FCC began in federal district court in the District of Columbia with a three-judge panel granting summary judgment to the government.’15 The district court based its judgment on Congress’ power to regulate the economy and impose order on market dysfunction}16 The 1992 Cable Act, the court said, was simply an “industry-specific antitrust and fair trade practice regulatory legislation," which employed must-carry as a means ”to create competitive balance in the video industry as a whole and to redress the effects of cable operators' anticompetitive practices."317 The court rejected the argument that mandatory carriage constituted a content-based regulation that was subject to aura. s 2(a)(6)-(12), 106 Stat. at 1460—61. 31‘See Fitzgerald, supra note 9, at 334. ’“819 F.Supp. 32 (D.D.C. 1993). 3”Id. at 40. 317Ido Strict scrutiny.318 The court found that the "intent as well as the form" of the must-carry provisions were unrelated to 3” Instead the court the content of the message delivered. upheld the constitutionally of the act under the intermediate Standard of scrutiny set forth in O’Brien.”° Turner Broadcasting v. FCC was announced in 1994 by the Supreme Court.""21 The Court was asked to select a constitutional status for cable televisionfi“22 The FCC argued to the Court that the regulation of cable "should be analyzed under the same First Amendment standard that applies to regulation of broadcast television.”23 Although the Commission conceded that substantial technological differences existed between cable and broadcast, the FCC said the justification for the limited First Amendment protection broadcast receives is based in the “’market dysfunction’ that characterizes the broadcast market," and that "the cable market is beset by a Similar dysfunction."”‘ The Court rejected the FCC’S argument, contending that the 31'Id. at 42-43. ’"Id. at 40. 32°Id. at 45-47. 321512 U.S. 622 (1994). ”’Id. at 637. ’“Id. ”‘Id. at 639 . 78 "special physical characteristics of broadcast transmission, not the economic characteristics of the broadcast market, are what underlies [the Court’s] broadcast jurisprudence.”25 Furthermore, the Court asserted that dysfunction in the market "is not sufficient to shield a speech regulation from the First Amendment standards applicable to nonbroadcast media."326 The cable industry urged the Court to apply the print communication standard of strict scrutiny to the must-carry provisions. According to the appellants, the Act compelled cable operators to transmit certain speech,327 favored one set of speakers over another,328 and singled out cable operators for disfavored treatment."’:29 Although the Court found that "[c]able programmers and cable operators engage in and transmit speech, and they are entitled to the protection of the speech and press provisions of the First Amendment,”30 the Court did not agree "that the First Amendment mandates strict scrutiny for any speech regulation that applies to one medium . . . but not 325Id. at 640. 32‘Id. 327See id. at 653. ’"See id. at 657. ”’See id. at 659. 330Id. at 636. 79 others," especially when the differential treatment is justified by ”the bottleneck monopoly power exercised by '”” Instead, the Court maintained that the cable operators. O’Brien test was the "appropriate standard by which to evaluate the constitutionality" of the must-carry provisions,332 and that must-carry requirements would be sustained if it could meet the four-prong O’Brien test. However, the Court concluded that genuine issues of material fact remained regarding whether the economic health of local broadcasting was in jeopardy and in need of the protection afforded by mandatory carriage)"33 The government asserted that without the legislation significant numbers of broadcast stations would be refused carriage on cable systems and would, thus, either deteriorate to a substantial degree or fail altogether.”‘ The government’s assertion rested upon a 1988 FCC study Showing a 20 percent drop in local broadcast carriage.335 The Court found the study inconclusive for a number of reasons, including an absence of a time-frame within which the drops 331Id. at 660-61. ”’Id. at 662. ’“Id. at 667-68. 3“See id. at 666. 335See id. occurred, whether the drops were temporary or permanent, and whether financial difficulties resulted from the drops.“” Without additional evidence indicating that the dropped or repositioned broadcasters were in serious risk of financial difficulty, the Court could not determine 337 whether the Act passed the O’Brien test. AS a result, the Court vacated the summary judgment, and remanded the case to the District Court for further findings consistent with the opinion.338 On remand, the district court once again sustained the government’s motion for a summary judgment. The court based its decision on the more than 18,000 page record, which Congress compiled over the three-year period it studied the carriage issue.339 The record provided substantial evidence that mandatory carriage was necessary to protect broadcasters from economic harm. Specifically, the court found that cable companies were becoming more reliant on advertising dollars as a source of income and were, therefore, inclined to drop or reposition “their advertising competitors in the absence of regulations."“° ’“Id. at 667. 3371a. ’"Id. at 668. 339Turner Broad. Sys., Inc. v. FCC, 910 F.Supp. 734, 740 (D.D.C. 1995). 3“Id. at 741. 81 Secondly, the cable system industry, which had become increasingly vertically integrated into cable programming, had every reason to drop broadcast stations from its cable systems to promote the cable Stations in which it had an equity interest.“1 Finally, the court was troubled by the facts that cable systems had become virtual monopolies within the local communities they served and that this monopOly power gave the local cable operator ”’gatekeeper[] control over most (if not all) the television programming channeled into the subscriber’s home.’"i” The court feared that a decision striking down the Act would compel the cable industry to abuse its power.“3 Five years after Congress reinstated mandatory carriage, the Supreme Court handed down its second decision on the constitutionally of the Act. In Turner 11,“ the Court could not secure a clear majority for Congress’ contention that without mandatory carriage, the economic health of the broadcast industry was in serious jeopardy. Although a five-justice majority upheld the constitutionally of the Act, Justice Breyer refused to 3“See id. at 741-42. “’Id. at 740 (quoting Turner I, 512 U.S. 622, 623 (1994)). “’Id. at 740-42. 3“520 U.S. 180 (1997). endorse the principal opinion's rationale—that a real threat of economic harm to local television broadcasters justified the enactment of the must-carry provisions.“5 The principal opinion's economic conclusion was based on evidence supplied primarily by Congress regarding the 46 structure of the cable industry,3 monopoly power of local 7 cable systems,“' Strong cross-elasticity of demand between cable programming and broadcast programmingyi‘ numerical 9 superiority of cable programming," mutual dependence on and 350 competition for advertising support, past evidence of 51 adverse broadcast carriage decisions,3 and continued growth 352 in the cable market. The principal opinion viewed the cable industry as a mammoth monopoly that produced, distributed, and controlled access to a plethora of programming options. This view emerged from the opinion’s reliance on the economic analysis conducted by Congress as “’Id. at 183, 196 (PluralitY °PiDi°nl° ’“Id. at 197-98 (plurality opinion)- “7rd. at 197 (plurality opinion)- “91d. at zoo-01 (plurality opinion)- “trd. at 202 (plurality opinion)- ’“Id. at 200-01 (plurality opinion)- ’“Id. at 202-06 (plurality Opinion)- 3""Id. at 206 (plurality opinion). well as additional expert testimony and industry documents obtained on remand. Based on this evidence, the principal opinion concluded that the only broadcast Stations popular enough to counter the local cable system’s power and secure carriage on their own merit were the "handful" of local network-affiliated stations.“53 The opinion also agreed with an FCC-sponsored study that Showed a serious problem of noncarriage developed during the years following the Qunicy and century decisions.”“ The FCC’S Study, which Congress considered in its economic analysis, was further supported in the principal opinion by evidence developed on remand. This evidence showed that approximately 11 percent of local broadcasters were not carried on the typical cable system in 1989.355 According to the lower court evidence, the figure grew to between 19 and 31 percent of all local broadcast stations by 1992.356 Other evidence suggested that 47 percent of local independent commercial stations and 36 percent of noncommercial stations were not being carried by the 357 typical cable system in 1992. In the end, the economic 3”1d; at 202 (plurality opinionl~ ”‘Id. at 202-04 (plurality opinion). ’“Id. at 204 (plurality Opini°n)- ”‘See id. ”’See id. analysis on which the Court based its opinion rested on the assumption that there was a much greater economic incentive for a local cable system to limit access of its broadcast competitors to all or substantially all of the cable homes in the market area.358 By limiting access, a cable system could secure additional channels for its programming interests, increase its advertising revenue, and expand its business at the expense of the local broadcaster.“” The economic analysis, while not dispositive for the Court, concluded that mandatory carriage was necessary to prevent financial harm to the local broadcaster, and thus constituted a substantial governmental interest of which the Act was designed to address.“° Once the plurality accepted Congress’ contention that the must-carry rules were designed to prevent anticompetitive conduct by cable operators, the justices had little trouble concluding that the statute was content- neutral and, therefore, subject to review under O’Brien.361 362 The dissenters disagreed. They viewed the regulation as ’"Id. at 197, 200-01 (plurality Opini°n)- ’"See id. at 198, zoo-02 (plurality opinion). “91d. at 208-213. 3“Id. at 186. 3“Id. at 229 (O’Connor, J., dissenting). Justices Scalia, Thomas, and Ginsburg joined Justice O’Connor’s opinion. Id. 85 “heavily content-based"363 and subject to strict scrutiny review.”‘ Scholarly Analysis and the Turner Decisions Contention over the appropriateness of the O’Brien Standard, according to one scholar, stems, in part, from a split on the Court over the definition of ”content—based."“5 In the Court’s Turner decisions, the dissenting justices "define[d] content-based broadly to include not only viewpoint-based regulations, but also subject-matter and speaker-based regulations."“‘ The majority, on the other hand, maintained that the burdens mandatory carriage placed on a cable operator’s control of access to the cable system were not related to the particular message conveyed by the broadcast station carried, and, therefore, constituted a content-neutral effort by government to preserve local 367 over-the-air television programming. Justice Kennedy, 363Id. at 233. 36"Id. at 235. 3“‘See Erik Forde Ugland, Cable Television, New Technologies and the First Amendment After Turner Broadcasting System, Inc. v. F.C.C., 60 Mo. L. REV. 799, 829 (1995). 3“Id. at 829-30. See Jeff Gray, Note, Turner Broadcasting System, Inc. v. FCC: The Need for a New.Approach in First Amendment Jurisprudence of the Cable Industry, 29 U.S.F. L. REV. 999, 1035-36 (1995). 3"See Ugland, supra note 365, at 829-30. Kathryn Seagle Robbie, Notes and Comments, Turner Broadcasting System, Inc. v. FCC: The Supreme 86 writing for a five-member majority in Turner I,368 “adopted a burdens-and-benefits approach" that assessed whether the burdens placed upon the cable operator and the benefits bestowed upon the broadcaster as a result of mandatory carriage were triggered by the content these two media delivered.“” Finding that burdens were not triggered by the content, the Court then examined the legislative purpose and intent of the provisions to determine if it stemmed from content considerations.”° The intent of the provisions, the Court said, was to preserve the economic viability of local broadcasting}71 The fact that Congress acknowledged the importance of local news, public affairs, and educational programming, according to one scholar, was not determinative."2 Instead, the Court considered the acknowledgement ”'nothing more than the recognition that the services provided by broadcast television have some Court Establishes A Standard of Review for First Amendment Issues Involving Cable Litigation, 7 ST. THOMAS L. REV. 375, 400-02 (1995). 3"Chief Justice Rehnquist and Justices Stevens, Blackmun, and Souter joined Kennedy in his argument concerning the burdens and benefits of the must-carry legislation. Justice Blackmun retired in 1994 and was replaced by Justice Breyer in time for Turner II. ’“Clay Calvert, Free Speech and Content-Neutrality: Inconsistent Applications of an Increasingly Malleable Doctrine, 29 Mchoncs L. REV. 69, 81—82 (1997). ImTurner I, 512 0.8. 622, 644-47 (1994). See Calvert, supra note 369, at 84. 37“Turner I, 512 U.S. at 647. See Calvert, supra note at 369, at 85. 372Calvert, supra note at 369, at 85. intrinsic value and thus are worth preserving against the threats posed by cables"?73 The Turner II Court found the dominant purpose of the Act in its economic justifications. The fact that the legislation also sought to promote specific types of content was secondary in the Court's view and not controlling in the application of O’Brien.”‘ Justice O'Connor's dissenting opinion in Turner I applied a distinctly different legal standard to the question of legislative intent and purpose. She stated that “when a content-based justification appears on the statute's face, we cannot ignore it because another, "I” For Justice content-neutral justification is present. O'Connor, a content-neutral purpose will not trump or override a content-based purpose. Once a content-based intent is found, the legislation will be subjected to strict scrutiny review.376 3“Turner I, 512 U.S. at 648. ”“Turner I, 512 U.S. at 648, 652. For a discussion of the Turner decisions that supports the majority's application of O'Brien, see Robbie, supra note 367, at 309-402; Fitzgerald, supra note 9, at 350, 358. ”’Turner I, 512 U.S. at 680 (O'Connor, J., dissenting)- ’"See Turner II, 520 U.S. 180, 234-35 (1997). O'Connor found that the justification for the must-carry provisions revealed a content-based preference for broadcast programming, and as such, was at odds with the principal opinion's “premise that must-carry is a means of preserving 'access to free television programming—whatever its content'" Id. (quoting Turner I, 512 U.S. at 649 (O'Connor, J., dissenting) (emphasis added)). For a discussion of the Turner decisions that supports the contention that the provisions are a content-based regulation, see Henry Geller, Turner Broadcasting, The First Amendment, and the New Electronic Delivery Systems, 1 MICH. Tsmcom. TECH. L. REV. 1, *28-29 88 These two differing determinations of when one congressional interest overrides another shows the inherent subjectivity in the application of the O’Brien standard and suggests there are “serious problems" in the use of this 377 approach. Problems in the application of the content- neutrality doctrine stem from inconsistent analyses of the intent, purpose, and terms of the regulation in question and the actual operation and effect of the regulation on 378 particular topics or ideas. The intermediate scrutiny approach also tilts the analysis in favor of government 9 regulation?’ and weakening of First Amendment rights“” by (1994-95); Gary S. Lutzker, The 1992 Cable Act and the First Amendment: What Must, Must Not, and May Be Carried, 12 CARDOZO ARTS & Em. L.J. 467, 496-97 (1994); Ugland, supra note 365, at 829, 833; Laurence H. Winer, The Red Lion of Cable, and Beyond?—-Turner Broadcasting v. FCC, 15 CARDOZO ARTS & EN'r. L.J. 1, 39 (1997); James A. Bello, Comment, Turner Broadcasting System, Inc. v. FCC: The Supreme Court Positions Cable Television on the First Amendment Spectrum, 30 NEW ENG. L. REV. 695, 735 (1996); Jeff Gray, supra note 366, at 1034-35; Michael W. Maseth, Comment, The Erosion of First Amendment Protections of Speech and Press: The ”Must-Carry" Provisions of the 1992 Cable Act, 24 CAP. U. L. REV. 423, 438 (1995); Karl E. Robinson, Comment, Content is in the Eye of the Beholder: The Supreme Court Upholds the Constitutionality of the 1992 Cable Act’s ”Must-Carry" Provisions, 20 Iowa J. CORP. L. 691, 712-14 (1995); Scott A. Samuels, Casenote, Intermedia Discrimination in the Information Age: The Implications of Turner Broadcasting System, Inc. v. FCC, 3 GEO. MASON IND. L. REV. 403, 424-25 (1995); Holli K. Sands, Casenote, The Supreme Court Turns Its Back on the First Amendment, The 1992 Cable Act and the First Amendment: Turner Broadcasting System, Inc. v. FCC, 3 VILL. SPORTS & Em. L. Foam 295, 320-21 (1996). ’"See Calvert, supra note 369, at 93. See also, Jay D. Wexler, Defending the Middle Way: Intermediate Scrutiny as Judicial Minimalism, 66 Geo. WASH. L. Rev. 298, 301-03 (1998). 37"See Calvert, supra note 369, at 71. 3”See Keith Wehan, The O’Briening of Free Speech Methodology, 19 Ann. ST. L.J. 635, 655 (1987). ’“See id. at 645. 89 artificially lowering the level of scrutiny to a rational basis test.381 This occurs when a court defers to legislative findings and conclusions, failing to require government to prove, rather than merely speculate, how the regulation in question actually advances the asserted interests of the government . 3” In the Turner decisions, justices split over the degree of deference the Court should give to the findings of Congress.383 The Turner II plurality opinion reaffirmed the Thrner I dictum that the Court's “sole obligation" was to assure that Congress had “’drawn reasonable inferences '"38‘ Under the Turner II based on substantial evidence. plurality's approach, a higher degree of deference was given to the judgments of Congress than the Court normally gives to policy judgments made by administrative agencies.385 The Court reasoned that a greater degree of deference was due Congress because it is "'far better equipped than the 3“See id. at 641; Fitzgerald, supra note 9, at 348. 3"See Wehan, supra note 379, at 656-58; Fitzgerald supra note 9, at 348. ’"Disagreement over the level of deference the Court should give to the findings of Congress in cases involving the First Amendment is not unusual. As Professor Lee points out “the extent to which the Court believes that it should accept legislative facts varies dramatically" in cases involving free speech questions. Lee, supra note 172, at 1263- 64. The Court's treatment of legislative facts, Lee concludes, ”lacks a principled commitment to free speech." Id. at 1261. ’“Turner II, 520 0.8. 180, 195 (1997) (quoting Turner I, 512 U.S. 622, 666 (1994) (plurality opinion)). ”51d. at 195. judiciary to “amass and evaluate the vast amounts of [economic] data"'" upon which the regulation was based.386 The ”substantial deference" the Court showed Congress' findings was appropriate, Justice Stevens explained, even though the statute ”imposes burdens on communication."387 The high degree of deference given Congress' economic conclusions is especially troubling for First Amendment interests given the “obvious danger . . . that congressional findings might be passed as boilerplate, with ‘substantial evidence' cobbled together by proponents of the 1egislation."3” A court that is willing to defer to legislative facts without holding those facts open to independent judicial scrutiny may be sacrificing First Amendment interests to a legislative bargain supported by a set of manufactured findings.”9 ’"Id. at 195 (quoting Turner I, 512 U.S. at 665-66 (quoting Walters v. National Assn. of Radiation Survivors, 473 U.S. 305, 331, n.12 (1985))). 3"Id. at 225 (Stevens, J., concurring). 3"’J.I.B., Comment, Constitutional Substantial-Evidence Review? Lessons From the Supreme Court’s Turner Broadcasting Decisions, 97 Comm. L. REV. 1162, 1179 (1997). See also Note, Deference to Legislative Fact Determinations in First Amendment Cases After Turner Broadcasting, 111 inmv. L. Rsv. 2312, 2329 (1998). 3”See J.I.B., supra note 388, at 1179. Judicial review of legislative action is also necessary in First Amendment cases to prevent a “'legislative definition'" of freedom of speech . . . that chill[s] commentary about government affairs." Lee, supra note 172, at 1275. 91 This concern troubled the dissenters who found considerable evidence that sharply conflicted with Congress' economic argument.”° By its failure to closely scrutinize the congressional record, the dissent argued that the principal opinion advanced a ”highly dubious economic theory" at the expense of First Amendment freedoms.”1 This theory, according to the dissent, was based on the premise that the must-carry rules were a form of antitrust regulation that forestalled anticompetitive conduct that threatened to harm the structure of the local broadcasting system by Significantly reducing the number of broadcast stations available to noncable households.”2 Specifically, the dissent took issue with the fact that the principal opinion offered no explanation regarding the type of anticompetitive conduct in which cable operators engaged.”3 Instead, the economic theory advanced by the opinion assumed that most adverse carriage decisions were motivated by some indeterminate form of anticompetitive 3“Turner II, 520 U.S. at 247 (O'Connor, J., dissenting). O'Connor writes that the “accounts of harm on which the Court relies are sharply disputed." Id. Specifically, she cites increases in net revenues for stations claiming harm from carriage denials and problems with signal strength and quality that precluded carriage for stations claiming anticompetitive carriage denials. Id. 391Id. at 249. ”’Id. at 230-32 . 393Id. at 233. 92 behavior . 39‘ The dissent also took issue with opinion because it offered no evidence that examined the actual relationship between the carriage denials and viewership preferences or number of local broadcast stations carried 3” Justice O'Connor argued that the in a given market. question of whether cable poses a “significant" threat to local broadcasting depends on how many broadcast stations in a market will remain available to viewers absent must- carry legislation and how many “viewers actually watch the stations that are dropped or denied carriage."”‘ This type of information, She said, should have formed the basis of the principal opinion's economic conclusions.397 Instead, the opinion proceeded from the assumption that all broadcast programs nationwide are watched by noncable households and all adverse carriage decisions affect the rich mix of programming choices.”8 Finally, the dissent refused to accepted Congress' conjecture that ”incentives" to engage in predatory behavior stemmed from the fact that the largest cable systems also owned cable programming interests and that 3"‘See id. at 232. ’“Id. at 232-33. JSGId. 397Id. at 233. ”'See id. 93 local cable operators were allowed to sell advertising 3” The mere space in some of the cable programs they carried. existence of these facts, the dissent argued, does not unavoidably induce cable operators to engage in anticompetitive conduct, and it does not necessarily follow that the must-carry rules are a reasonable response to such incentives.“° The economic theory advanced by the principal opinion conformed with the Court's belief that the ”bottleneck monopoly power exercised by cable operators" justified the lower level of scrutiny applied to the must-carry 401 regulations. Under the Court's bottleneck or monopoly model, "government authority to regulate is justified by the absence of competition and the supposed ability of cable systems to work as 'bottlenecks' to diverse sources "402 of video programming. This approach has been criticized as flawed in several respects. First, it is based on a 399Id. at 237-39. ‘”Id. at 238-39. O'Connor said that if Congress was concerned that broadcasters favored too many affiliated programmers, it could simply adjust the number of channels on a cable system that can be occupied by affiliated programmers. Id. As for advertisement sales, O’Connor argued that because cable systems do not depend primarily upon a subscriber base for revenue, it is unlikely that a system would drop a widely viewed station in order to capture advertising revenues which account for between one and five percent of the total revenues of most large cable systems. Id. “”Turner II, 512 U.S. 622, 661 (1994)~ ‘”Ugland, supra note 365, at 815. 94 narrow assessment of competition within the cable industry and excludes market conditions in the information and entertainment industry as a whole by ”erroneously presum[ing] that the information provided via cable is unavailable through other means."“"3 Critics argue that ”'there is simply no single predominant voice'" in any given media market“‘ and that cable systems are facing ever increasing competition from direct broadcast satellite and video dial-tone systems.‘05 In addition, critics argue that the bottleneck model mistakenly assumes that the existence of only one cable system in a given city is the result of high barriers to entry in the cable market and, therefore, constitutes a condition that justifies government intervention.“”‘While entry costs are substantial, many existing cable systems operate as monopolies in their given market because the local franchising authority has granted them an exclusive right to do so. High barriers to entry and the absence of same-medium competition also exist in other nonregulated “31d. at 822-23. “‘Id. at 823 (quoting EMORD, supra note 208, at 287. ‘°’See, e.g., id. at 823. “”399, eogo I id. at 823-240 95 media industries, including the newspaper industry.‘07 And while the absence of same-medium competition may justify the application of antitrust law, “it certainly does not sanction interference with the editorial function of cable system operators.“08 Although the principal opinion justified its application of O'Brien on the bottleneck theory, Justice Breyer based his argument on the instrumentalist model of First Amendment adjudication. This approach argues that ”legislatures ought to be able to regulate Speech in order to promote 'democratic deliberation’ and 'political equality.'"“” Following this line of thought, Justice Breyer upheld the must-carry legislation based not on the government's anticompetitive analysis but on the basis of its interest in protecting free, over-the-air broadcast television and in “promoting the widespread dissemination mSee id. at 824. ‘“Id. at 823. Some scholars have suggested that antitrust law should be utilized when an anticompetitive concern arises among media industries. By relying on the Sherman and Clayton Antitrust Acts, these scholars say that monopolization and other restraints of trade can be evaluated without posing a threat to First Amendment freedoms. See Nichelle Frelix, Note, Turner Broadcasting v. FCC: Medern Communications Developnent and the Evolving First Amendment, 16 WHI'I'I'IER L. REV. 685, 731 (1995); Samuels, supra note 376, at 430; ‘”Andre R. Barry, Recent Development: Balancing.Away the Freedom of Speech: Turner Broadcasting System v. FCC, 21 HARV. J.L. & PUBL. POL'Y 272, 281 (1997). Under this model, government may not restrict speech on the basis of viewpoint, but may regulate the electronic media to promote, in a sufficiently neutral way, political, educational, and public-affairs programming, and ensure diversity of viewpoints. See Cass R. Sunstein, The First Amendment in Cyberspace, 104 YALE L.J. 1757, 1762 (1995). ' of information from a multiplicity of sources.”“0 “Conceding that must-carry 'extracts a serious First Amendment price' by interfering with the programming decisions of cable operators and by preventing cable viewers from watching ‘what they want to see,"“” Justice Breyer argued that the ”First Amendment authorizes the government not only to promote the dissemination of different points of view, but also to channel them in a way that promotes 'public discussion' and 'informed deliberation.'"“” At least one critic argues that this interpretation of the First Amendment in conjunction with the deference Turner II gave to Congress in its identification of the interests furthered by the legislation “would grant [C]ongreSS dangerous and unwarranted latitude in determining the parameters of public discourse.“13 Others, however, welcome Breyer's approach. They say it recognizes the First Amendment value in assuring public access to a wide variety of information sources.‘“ This approach works by balancing a whole host of access “‘Turner II, 520 U.S. 130, 226 (1997) (Breyer, J., concurring). 011d. at 225 (Breyer, J., concurring). mId. at 227 (Breyer, J., concurring). ‘nBarry, supra note 409, at 287. interests against each other to determine the relative strength of each competing interestm'Therefore, instead of weighing government's interest in regulation against traditional free speech principles which severely restrict government interference in the speech marketplace, this approach weighed the First Amendment costs to the cable operator, the cable programmer, the over-the-air programmer, and the viewer to determine the extent of the mandatory carriage burden on each interest.“5 In the end, according to one observer, Breyer concluded that “the burden must-carry imposes on the cable system operator, potential cable programmers, and cable viewers is insubstantial when compared to the severe burden upon the over-the-air viewer."“‘ Underlying Breyer's approach is the idea that “government may regulate (not merely subsidize) new speech sources to ensure access for viewers who would otherwise be without free programming.""17 This idea was accepted by a majority of justices on the Turner Court. The Court's emphasis on the importance of viewer access to free mSee Jerome A. Barron, The Electronic Media and the Flight from First Amendment Doctrine: Justice Breyer’s New.Balancing.Approach, 31 U. Mich. J.L. Ref. 817, 817 (1998); Sunstein, supra note 409, at 1774. ‘”See Barron, supra note 414, at 822, 829-30. “‘Id. at 830 . mSunstein, supra note 409, at 1774. 98 programming coincides, in part, with the goals of the instrumentalist model.“” The Court, nevertheless, deviated from those goals with its insistence that any regulation that seeks to safeguard viewer access must accomplish its objectives on a content-neutral basis. The Court's presumption against the constitutionality of content discrimination conforms with the objectives of the marketplace or print model of First Amendment adjudication, and, as a result, generates confusion as to whether and how government may promote instrumentalist aspirations.“9 In Turner I, the cable industry argued that the must- carry rules should be measured against the print model. The print model rests on the ”presumption that regulations that interfere with either the content or the autonomy of the press are unconstitutional, or at least subject to "420 heightened scrutiny. Under this approach, traditional First Amendment doctrines that protect speech based on its 421 content ‘would be applied without regard to the medium of ‘“See id. at 1774; Barron, supra note 414, at 884. ‘"See Sunstein, supra note 409, at 1774-75. ‘ngland, supra note 365, at 818. Justice O'Connor's dissenting opinion was based on the marketplace theory or print model of First Amendment adjudication. See supra text accompanying notes 366, 375-76. ““See Note, The Message in the Medium the First Amendment on the Information Superhighway, 107 HARV. L. REV. 1062, 1069 (1994). Because of the content involved, commercial speech, obscenity, child pornography, and defamatory speech receive either limited or no First 99 transmission.“2 This approach would bring an end to the continual reassessment of First Amendment theory that occurs with the emergence of each new communication medium, and would allow the law to adapt more quickly to new factual developments.”3 One supporter of this perspective believes that the print model provides the only stable method of analyzing new media under the First Amendment,“‘ while others contend that the Court's refusal in Turner I to apply strict scrutiny to a regulation viewed as content- based has set a ”dangerous precedent" for the degree of First Amendment protection emerging media technologies will receive.“5 Others, however, argue that marketplace competition will eventually displace the Court's concern for the growing monopoly powers of cable and render the carriage 426 issue moot. Recent developments in new technology coupled with changes in law have altered the competitive landscape Amendment protection, regardless of the method of dissemination. See id. ‘“See Corn-Revere, supra note 9, at 254. ‘“See id. ‘“See id. at 253. ‘”See Ugland, supra note 365, at 838; Nichelle Frelix, supra note 408, at 732; Samuels, supra note 376, at 433; Sands, supra note 376, at 323. ‘"See Ronald W. Adelman, Turner Broadcasting and the Bottleneck Analogy: Are Cable Television Operators Gatekeepers of Speech?, 49 SMU L. REV. 1549, 1558—59 (1996); Geller, supra note 376, at *30-31; Bello, supra note 376, at 744; Gray, supra note 366, at 1037-38. 100 for cable operators. The rise of digital satellite systems and the Internet, as well as FCC approved entry of regional telephone companies into the video market has largely eroded the gatekeeper status of the cable operator, and undermined the Court's justifications for applying ‘” In time, one observer notes, mandatory carriage policy. cable will become a much more open, indiscriminate medium as the abundance of broadband delivery systems with ever increasing capacities flourish.‘28 Summary Scholarly analysis of the Turner decisions and the must-carry issue falls within the traditional legal research pattern of clarification, critique, and reform, where researchers, using court opinions and dissents, legislative histories, constitutional interpretation, and legal commentaries, explain how the court should rule, or how it did rule and how it should have ruled, or how regulatory regimes should work.“” Collectively, this research shows that the selection, application, and advocation of Specific tests, rules, principles, and the mSee Adelman, supra note 426, at 1558-59. “'See Geller, supra note 376, at *30-31. “’See PAUL W. KAHN, THE CULTURAL STUDY OF Luv 1 (1999); Gillmor & Dennis, supra note 194, at 334-35. 101 like are open to varying interpretations and that little agreement exists among the legal community as to the ”correct" reading of the law. A breakdown of research analyzed also illustrates this point. For example, a majority of the scholars reviewed disagreed with the Turner Court's selection and application of the O’Brien standard.”° However, only a few observers agreed on exactly why the Court's reasoning was flawed‘31 and how the Court's ruling 'will impact future cases.‘32 The fact that there is disagreement at the level of judicial resolution reflects the fact that there is also wide disagreement among scholars and Supreme Court justices at the theoretical ‘”See supra note 376. These scholars believe that the must-carry rules are a content-based regulation that favors certain speakers and certain programming and places impermissible burdens on the editorial discretion of cable operators by compelling them to carry certain messages, and as such the O’Brien test with its content-neutral requirement is the wrong standard to apply to this policy. See id. mSee supra text accompanying notes 377-89, 402-408. Some scholars found that the intermediate scrutiny requirement was circumvented by the considerable amount of deference the Court gave the factual determinations underlying the legislation. See supra note 382-89 and accompanying text. Other observers believe that the standards, terms, and criteria used for determining whether a regulation on speech is content-neutral or content-based are so malleable and amorphous that they jeopardize the functional validity of the categories. See supra note 377-81 and accompanying text. One critic points to the flawed economic analysis upon which the bottleneck standard rests. See supra note 402-408 and accompanying text. ‘”See supra text accompanying notes 425-28. Some scholars warn that the Court's ruling will lessen the degree of First Amendment protection emerging media receive. See supra note 425 and accompanying text. But others believe advances in technology will increase competition and render the Court's concerns moot. See supra notes 426-28 and accompanying text. 102 level.“” Within the realm of First Amendment law, universal agreement among the legal community as to the purpose and value of freedom of speech and press simply does not exist.“‘ Although this study is not concerned with what constitutes the appropriate theoretical model, it is concerned with assessing the degree to which the political process, established legal doctrine and judicial discretion affected the formulation of First Amendment law. The must- carry issue was chosen for this study because it resulted ‘”See supra text accompanying notes 409-25. The Turner Court seemed to embrace two separate theoretical models-the instrumentalist theory and marketplace theory. See supra text accompanying notes 417-19. The dissent based its reasoning on the marketplace theory or print model of First Amendment adjudication. See supra text accompanying notes 420-22. Justice Breyer grounded his concurrence in the instrumentalist theory. See supra text accompanying notes 409-12, 416. The views of legal scholars, like their judicial counterparts, vary. See supra text accompanying notes 413-15, 423-25. ‘“See C. Edwin Baker, Scope of the First Amendment Freedom of Speech, 25 UCLA L. REV. 964, 966 (1978) (contending that speech is protected ”not as a means to a collective good but because of the value of speech conduct to the individual"); Vincent Blasi, The Checking value in First Amendment Theory, 3 Au. 8. roman Res. J. 523, 527 (1977) (suggesting that the function of free speech and free press is to serve as checking power against the abuse of public officials); Thomas I. Emerson, Toward a General Theory of the First Amendment, 72 YALE L.J. 877, 878-87 (1963) (arguing that the value of free expression lies in its ability to assure individual self-fulfillment; advance knowledge and discovery of truth; provide for participation in decision-making through a process of open discussion; and achieve a more adaptable, cohesive, and stable communitY); Donald E. Lively, The First Amendment at Its Third Century: Reckoning with the Ravages of Time, 18 HASTINGS CONST. L.Q. 259, 264-65 (1991) (suggesting that free speech law has become a function of jurisprudentially selected ideals and that the Court has ascribed the “highest value and afforded utmost constitutional attention" to political expression); Martin H. Redish, The value of Free Speech, 130 U. PA. L. REV. 591, 593 (1982) (arguing that the true value of freedom of speech is individual self-realization); Kathleen M. Sullivan, Free Speech and Uhfree Markets, 42 UCLA L. REV. 949, 950, 963 (1995) (arguing that “speech is valuable independent of people's willingness to pay for it"). 103 in the development of a First Amendment standard based on economic considerations, specifically anti-competition in the television programming market and the potential market 435 failure of local broadcasting. The Standard produced provides less protection for cable television than the First Amendment standard that is applied to newspapers and other printed materials. And its application to the facts in the Turner cases allowed a fractured Court to uphold a regulation strongly supported and influenced by the lobbying efforts of the broadcast industry. In addition, the fact that the adjudication of the must-carry issue produced a fractured Supreme Court opinion with no clear majority for any single foundational analysis of First Amendment law gives credence to the position that the analysis of First Amendment law is a function of the analogies used, definitions applied and assumptions employed by the jurists. This seems to be especially true in the Turner case, where the courts were adjudicating an issue involving a communication technology for which no ‘”The author is distinguishing between the Court's application of an economic analysis in the Turner decisions and past cases that were adjudicated under generally applicable laws, such as antitrust law, that required an economic analysis in order to reach a conclusion in law. In the Turner decisions, the analysis was used to justify the application of an intermediate scrutiny standard to a regulation that implicated the First Amendment. In Associated Press v. united States, for example, antitrust law was applied to a restraint of trade action against the Associated Press notwithstanding the fact that the press 104 clear constitutional precedent existed. In the Turner case, the justices looked to harder-to-justify analogies for guidance in the adjudication process. These analogies were open to varying interpretations and as a result the split opinions in the Turner decisions may have been prone to individual judicial discretion and influence from outside parties and the political process. Because of its varying constitutional analyses and its economic/political Significance, the Turner decisions provide a good case to ascertain the extent to which the development of the bottleneck standard was constrained by the application of established legal standards and the extent to which the political process and judicial discretion impacted the formulation of this constitutional rule. organization engaged in First Amendment activities. See Associated Press v. United States, 326 U.S. 1, 20 (1945). 105 CHAPTER FOUR THE POLITICAL PROCESS AND THE BOTTLENECK ARGUMENT Institutional law and economics views rights, such as the constitutional right to freedom of speech, as an economic asset. An individual or group that has secured the ”right to speak" through conflict resolution has gained an element of economic power relative to the power of others who have not secured the same right. According to institutional theory, the economic power gained through the assignment of a right can be used to restrict the economic opportunities and choices of others. This idea forms the basic premise of the broadcast industry's argument for must-carry legislation. In testimony before Congress, the National Association of Broadcasters and the Association of Independent Television Stations argued that the cable industry had been given “distinct legal and regulatory advantages" over 436 broadcast television. In particular, the ”successful campaign of First Amendment litigation by the cable ‘“Competitive Issues in the Cable Television Industry: Hearings Befbre the Subcommittee on Antitrust, Mbnopolies, and Business Rights, Senate Judiciary Committee, 100th Cong. 535 (1988) (statement of Gary R. Chapman, Senior Vice President of Broadcasting, Freedom Newspapers, Inc.). See Must-Carry: Hearings Before the Subcommittee on Communications, Senate Commerce, Science, and Transportation Committee, 101“ Cong. 36, 42 (1989) (statement of Edward O. Fritts, President and Chief Executive Officer, National Association of Broadcasters). 106 industry"“" had given cable operators the “the upper hand in the marketplace“38 and fostered a climate of anti- competitive behavior in the distribution of television programmingx“” “Within the context of must-carry litigation," the broadcast lobby argued, the cable industry had been able to ”convince the lower courts to treat it"“° as ”the electronic equivalent of newspapers, . . . deserving of superior First Amendment protections."’“1 The cable industry's ability to effectively secure First Amendment protection against regulatory attempts to aid local broadcasters by imposing mandatory carriage rules permitted cable operators to discriminate against local ‘”Oversight of Cable TV: Hearings Before the Subcommittee on Communications, Senate Commerce, Science, and Transportation Committee, 101” Cong. 385 (1989) (statement of Preston Padden, President, Association of Independent Television Stations, Inc.). ‘”Mhst-Carry: Hearings Before the Subcommittee on Communications, Senate Commerce, Science, and Transportation Committee, 101" Cong. 37 (1989) (statement of Edward O. Fritts, President and Chief Executive Officer, National Association of Broadcasters). ‘”See id. at 38-39; Oversight of Cable TV: Hearings Before the Subcommittee on Communications, Senate Commerce, Science, and Transportation Committee, 101't Cong. 384-85 (1989) (statement of Preston Padden, President, Association of Independent Television Stations, Inc.); Cable Television: Hearings Befbre the Subcommittee on Telecommunications and Finance, House Energy and Commerce Committee, 100ul Cong. 558-60 (1988) (statement of Edward O. Fritts, President and Chief Executive Officer, National Association of Broadcasters). ““Must-Carry: Hearings BefOre the Subcommittee on Communications, Senate Commerce, Science, and Transportation Committee, 101“ Cong. 37 (1989) (statement of Edward O. Fritts, President and Chief Executive Officer, National Association of Broadcasters). ““Cable Television: Hearings Before the Subcommittee on Telecommunications and Finance, House Energy and Commerce Committee, 100“ Cong. 559-60 (1988) (statement of Edward O. Fritts, President and Chief Executive Officer, National Association of Broadcasters). 107 broadcast speakers while favoring programming services in which the cable company has an equity interest.“2 Reinstatement of some form of must-carry was needed, lobbyists said, to level the competitive playing field“3auui preserve an “'open gate' between local stations and their viewers."*“ From the perspective of the broadcasting industry, the “most significant problem" local broadcast faced was cable's gatekeeper or bottleneck status.“5 The bottleneck status was made especially damaging to the financial stability of the local broadcast industry by virtue of the First Amendment battles that the cable industry had recently won.“‘ In the resolution of prior regulatory conflicts with the FCC, the cable industry secured additional constitutional protection and was now able to use that protection in conjunction with its ‘“See Oversight of Cable TV: Hearings BefOre the Subcommittee on Communications, Senate Commerce, Science, and Transportation Committee, 101't Cong. 389-91 (1989) (statement of Preston Padden, President, Association of Independent Television Stations, Inc.). ‘“See Must-Carry: Hearings Before the Subcommittee on Communications, Science, and Transportation Committee, 101“'Cong. 45 (1989) (statement of Edward O. Fritts, President and Chief Executive Officer, National Association of Broadcasters). “‘Id. at 38. “”Competitive Problems in the Cable Television Industry: Hearings Before the Subcommittee on Antitrust, Mbnopolies, and Business Rights, Senate Judiciary Committee, 101" Cong. 308 (1989) (statement of Edward O. Fritts, President and Chief Executive Officer, National Association of Broadcasters). ‘“See supra note 6. 108 bottleneck control to effectively restrict the economic opportunities of local broadcasters.“7 To combat cable's competitive advantage in the marketplace, the broadcast lobby urged Congress to enact a form of must-carry that could withstand a constitutional challenge by the cable industry. The broadcast lobby made their case for the enactment of mandatory carriage by emphasizing cable's power and incentive to negatively impact the “opportunity set" of the local broadcaster without the broadcaster's consent.“° Absent must-carry, the broadcast industry argued, cable “has unrestricted discretion over what local stations" to carry and where those stations are placed within the lineup of cable channels.“9 This discretion is furthered by the ability of the local cable operator to use its compulsory copyright license to retransmit broadcast signals without the consent of the local broadcaster.“so Thus, according to ‘"The broadcast lobby argued that the loss of the must-carry rules in previous litigation allowed the cable operator to “act as a virtual gatekeeper to the homes of America. See Must-Carry: Hearings Before the Subcommittee on Communications, Science, and Transportation Committee, 101" Cong. 36 (1989) (statement of Edward O. Fritts, President and Chief Executive Officer, National Association of Broadcasters). ‘“See supra text accompanying notes 133-34. “”Must-Carry: Hearings Before the Subcommittee on Communications, Science, and Transportation Committee, 101"'Cong. 36 (1989) (statement of Edward O. Fritts, President and Chief Executive Officer, National Association of Broadcasters). ‘”Id. The compulsory license was granted to the local cable operator by the Copyright Act of 1976. See id. at 42. 109 the broadcast industry, the legal and regulatory rights given to the cable industry by the government defined not only the scope of choices open to the local cable operator and the local broadcaster but also the degree to which the local broadcaster was exposed to the choices of the local cable operator.‘51 Although the broadcast industry did not offer a detailed strategy for overcoming past judicial decisions that struck down mandatory carriage, their lobbyists believed that it was possible to fashion a constitutionally ‘” The National Association of acceptable must-carry policy. Broadcasters contended that the constitutionality of a newly developed must-carry policy would turn on the provision's ability to be characterized as content- neutral.‘$3 To avoid a designation of content-based and constitutional review under strict scrutiny, “the qualifications for receiving must-carry status," the NAB argued, must not require “subjective judgments regarding ‘”See supra note 134. ‘”Cable Television: Hearings.Befbre the Subcommittee on Telecommunications and Finance, House Energy and Commerce Committee, 100“ Cong. 559-60 (1988) (statement of Edward O. Fritts, President and Chief Executive Officer, National Association of Broadcasters). ‘”Cable Television.Regulation: Hearings BefOre the Subcommittee on Telecommunications and Finance, House Energy and Commerce Committee, 102“ Cong. 769 (1991) (statement of Edward O. Fritts, President and Chief Executive Officer, National Association of Broadcasters). 110 the broadcaster's programming."““ The NAB feared that a policy that based mandatory carriage on the type of programming offered by a broadcast station would be labeled as content-based by the courts.“5 Therefore, they rejected the ideas that low-power television stations that provided Significant amounts of local programming should be included among the stations covered by a must-carry policy and that home shopping channels should be excluded from coverage under such a provision.‘56 The Association for Independent Television Stations, on the other hand, contended that the exclusion of home Shopping channels from mandatory carriage would strengthen ‘” To survive a First Amendment the constitutional argument. challenge, the INTV argued, “any must-carry provisions adopted by Congress must be precisely drawn to further a substantial government interest with the narrowest necessary effect on speech."“” The INTV feared that the courts would view a must-carry policy that protected “‘Id. 4551-d ‘“Id. at 769-70. mSee Cable TV Consumer Protection Act of 1991: Hearings Before the Subcommittee on Communications, Senate Commerce, Science, and Transportation Committee, 102‘“d Cong. 526, 529 (1991) (statement of James Hedlund, President, Association of Independent Television Stations, Inc.). ‘”Id. at 527. 111 stations that did not engage in local programming as broader than necessary to preserve the expressed purpose of mandatory carriage.“59 Mandatory carriage was needed, the INTV said, to protect a local system of broadcasting, promote diversity of programming and foster competition among programmers.“so In the end, Congress accepted the INTV's argument and excluded from mandatory carriage commercial television stations that were ”predominantly utilized for the transmission of sales presentations or program length commercials"“51 and low power stations that did not engage in local programming.‘62 In their discussions before Congress, the INTV likened must-carry and channel positioning policy to anti-trust law 463 They held that it was ”simply inconsistent with the entire thrust of [U.S.] anti-trust laws to permit cable operators, who enjoy monopoly power and control 'essential facilities,’ to use that control and those facilities to compete unfairly against local stations in the programming ‘”See id. at 527-28. ‘“See id. at 525. ‘“1992 Cable Act 5 4(9)<1), 106 Stat- at 1475~ ;“1d. at s 4(h)(2)(B), 106 Stat. at 1477. ‘”Must-Carry: Hearings Before the Subcommittee on Communications, Science, and Transportation Committee, 101“ Cong. 76 (1989) (statement of Preston Padden, President, Association of Independent Television Stations, Inc.). and advertising marketplace."“‘ The INTV'S argument is premised on an area of anti-trust law that imposes on “firms controlling an essential facility the obligation to make the facility available" to competitors on a non- 5 Under the so-called essential discriminatory basis.‘6 facilities or bottleneck doctrine, the refusal to deal with one's competitors may be unlawful if 1.) a monopolist controls of an essential facility; 2.) a competitor is unable "practically or reasonably to duplicate the essential facility;" 3.) a monopolist denies the “use of the facilty to a competitor;" and 4.) the use of the ‘“ Denial of use is lawful under the facility is feasible. essential facilities doctrine if it is based on technological or economical reasons, such as limited space or a competitor's financial unsoundness, or the competitor requests preferential access, such as a specific channel position.“7 While the INTV never specifically charged a cable system with a violation of the essential facilities doctrine, the broadcast lobbyist based its argument in support of the 1992 Cable Act on the premise that the Act “‘Id. ‘”Mc1 v. ATaT, 708 F.2d 1081, 1132 (7“ Cir. 1983)- ‘“Id. at 1132-33. mSee id. at 1133. 113 “targeted classic anti-competitive practices that are contrary to general anti-trust principles."“58 “The must- carry provisions," the INTV said, “address the same anti- trust concerns" and represent the same remedy that the U.S. Supreme “Court and other courts have repeatedly acknowledged whenever monopolists use their essential facilities to harm their direct competitors."“9 The INTV viewed the 1992 Cable Act as nothing more than a rule crafted by Congress that applies anti-trust principles to the cable industry and, therefore, is not subject to strict scrutiny review'.‘70 Strict scrutiny did not apply because “all 'speakerS'—even newspapers," the INTV said, “are subject to regulation designed to protect competition."‘” Under the INTV'S constitutional analysis of the must-carry issue, a regulation that is "designed to prevent anti-competitive conduct" is a content-neutral conduct provision that does not trigger any heightened scrutiny or narrow tailoring requirement even if that ‘”Brief for the Association of Independent Television Stations, Inc. at *4, Turner Broadcasting System v. FCC, 512 U.S. 622 (1994) (No. 93-44) LEXIS 1993 U.S. Briefs 44. “’Id. at *7 . ‘"See id. at *9. 4711a. 114 regulation favors certain classes of speakers over others.‘7 “Competitive regulation affecting monopoly abuse by information providers," the INTV said, ”has a differential effect. This is so because it targets the source of monopoly abuse and seeks to benefit the entities subject to that abuse.“73 Although the must-carry provisions benefit local broadcast stations, the INTV explained, “they do so precisely because that class of 'speakers' competes with cable monopolies for local advertising revenues and thus is subject to monopoly abuse. This 'incidental effect on some speakers' reflects Congress' careful tailoring of measures designed to advance competition, rather than impermissible discrimination that triggers heightened First Amendment scrutiny.""‘ The U.S. Supreme Court rejected the INTV'S argument.‘75 The Court said that while lawsuits against members of the press brought under the Sherman Antitrust Act have not been subjected to heightened scrutiny under the First Amendment, laws, such as the must-carry provision, that “single out the press, or certain elements thereof, for special mSee id. at *9-11. "31d. at *10. "‘Id. ‘nThe FCC made a similar argument in its brief. See Brief for the Federal Appellees at *6, Turner Broadcasting System v. FCC, 512 U.S. 622 (1994) (No. 93-44) LEXIS 1993 U.S. Briefs 44. 115 2 treatment . . . are always subject to at least some degree of heightened First Amendment scrutiny."‘” The Court continued that strict scrutiny was “unwarranted when the differential treatment is ‘justified by some special characteristic of' the particular medium being regulated.“77 Because the must-carry rules are justified by cable's ”bottleneck monopoly power," the Court said, the O'Brien rule was the appropriate standard of review."° The Court's analysis of speaker-based regulations conforms to the argument that the NAB set forth in their Supreme Court brief. The NAB noted that Strict scrutiny is warranted only when there is reason to suspect that “the legislature intended to suppress particular ideas" by enacting a media-specific statute.‘” Such suspicion is not aroused with the must-carry provisions because the differential treatment is justified by “non-content-related distinctions” between the broadcasting and cable ‘"Turner I, 512 U.S. at 640. mId. at 660-61 (quoting Arkansas Writers' Project v. Ragland, 481 U.S. 221, 228-229 (1987); Minneapolis Star & Tribune Co. v. Minnesota Comm'r of Revenue, 460 U.S. 575, 585 (1983)). Technological characteristics of mass media was an important element of assessing First Amendment standards. See Home Box Office v. FCC, 567 F.2d 9, 43 (D.C. Cir. 1977). ‘"Turner I, 512 U.S. at 661-62. ‘”Brief for the National Association of Broadcasters at *12, Turner Broadcasting System v. FCC, 512 U.S. 622 (1994) (No. 93-44) LEXIS 1993 U.S. Briefs 44. 116 480 industries. Must-carry, the NAB said, “specially targets a host of familiar anti-competitive incentives, opportunities and effects inherent in any bottleneck monopolist's control of essential facilities and aims to prevent predictable '”“ As such, the must- exploitation of those opportunities. carry rules are “'justified without reference to the content of the regulated speech,'"“32 and, therefore, ”'O’Brien's relatively lenient standard' applies.“83 The Court also followed the NAB's argument with regards to the question of whether the must-carry rules trigger strict scrutiny because they restrict editorial control and compel or force the cable operator to engage in Speech. The NAB, like the Court, argued that the degree of First Amendment protection from government interference with editorial discretion is determined by the purpose for the interference.““ Restrictions on editorial control receive strict scrutiny review, the NAB and Court concluded, only when such regulations are based on the viewpoints of selected speakers.”5 ”[W]hen government “°Id. “‘Id. at *8. “’Id. (quoting Renton v. Playtime Theatres, 475 U.S. 41, 48 (1986)). “’Id. at *7 (quoting Texas v. Johnson, 491 U.S. 397, 407 (1989)). “‘Id. at *10. See Turner I, 512 U.S. at 653-55. “’See id. 117 compels the recitation of an official 'orthodoxy'" or mandates “speech in order to counterbalance or correct the content of what the burdened speaker has to say," strict scrutiny applies.“° By contrast, the must-carry provisions, according to the NAB and the Court, are “not activated by any particular message spoken by cable operators and thus exact no content-based penalty.“87 Both the NAB and the Court agreed that even if the right of editorial control that exists for the traditional press is more far-reaching than a right determined solely by viewpoint-based considerations, that that right should not extend to cable operators.‘88 Any asserted analogy of a cable system to the traditional press, the NAB and the Court said, “ignores the important technological difference between newspapers and cable television."“” Unlike editors of newspapers, cable operators exercise a ”bottleneck" monopoly control over their competitors.“” According to the ‘“Brief for the National Association of Broadcasters at *10, Turner Broadcasting System v. FCC, 512 U.S. 622 (1994) (No. 93-44) LEXIS 1993 U.S. Briefs 44. ‘"Turner I, 512 U.S. at 655. See id. at *10. ‘”See Brief for the National Association of Broadcasters at *11, Turner Broadcasting System v. FCC, 512 U.S. 622 (1994) (No. 93-44) LEXIS 1993 U.S. Briefs 44; Turner I, 512 U.S. at 656-57. ‘”Turner I, 512 U.S. at 656. See Brief for the National Association of Broadcasters at *11, Turner Broadcasting System v. FCC, 512 U.S. 622 (1994) (No. 93-44) LEXIS 1993 U.S. Briefs 44. "°See id. 118 NAB and the Court, the bottleneck power possessed by cable operators is largely economic power, and the potential for its abuse, they said, cannot be overlooked or disabled by the First Amendment's protection for editorial discretion.‘91 The First Amendment, they concluded, does not yield an interpretation of editorial discretion that permits cable operators to use their bottleneck control to “silence the voice of competing speakers.”“” And as such, the government is not impeded by the First Amendment “from taking steps to ensure that private interests [do] not restrict, through [the] physical control of a critical pathway of communication, the free flow of information and ideas.“93 Based on cable’s bottleneck status, the NAB and the Court concluded that strict scrutiny review does not apply to the must-carry legislation. Instead, the degree of protection from government intrusion into the editorial control of the cable operator in the form of mandatory carriage is lowered to an intermediate scrutiny level.“‘ ‘”See Turner I, 512 U.S. at 656-57; Brief for the National Association of Broadcasters at *11, Turner Broadcasting System v. FCC, 512 U.S. 622 (1994) (No. 93-44) LEXIS 1993 U.S. Briefs 44. ‘”Turner I, 512 U.S. at 656. See Brief for the National Association of Broadcasters at *11, Turner Broadcasting System v. FCC, 512 U.S. 622 ‘”Turner I, 512 U.S. at 657. ‘”See Turner I, 512 U.S. at 657, 662; Brief for the National Association of Broadcasters at *11, Turner Broadcasting System v. FCC, 512 U.S. 622 (1994) (No. 93-44) LEXIS 1993 U.S. Briefs 44. 119 The argument put forth by the NAB and accepted by the U.S. Supreme Court dismantled the cable industry's legal challenge of the must-carry rules with a two-pronged approached. First, the NAB effectively argued that the must-carry provisions were content-neutral and thus reviewable under the O’Brien rule. Content-neutrality was defined by the NAB as it was in Renton v. Playtime Theatres.‘95 The must-carry legislation was content-neutral, the NAB said, because it could be “'justified without reference to the content of the regulated speech.'"“‘ Therefore, the fact that the rules refer to particular speech and speakers does not make them “automatically "497 content-based. Instead, it is government's purpose for enacting the legislation that is “always" “controlling" in ”determining the appropriate level of scrutiny."“’8 Government's purpose, the NAB argued, was to preserve “healthy competition in the marketplace for video "499 programming. The fact that Congress described local ‘”475 U.S. 41 (1986). See infra text accompanying notes 637-49 for an explanation of how the U.S. Supreme Court defined content-neutrality in Renton. ‘“Brief for the National Association of Broadcasters at *8, Turner Broadcasting System v. FCC, 512 U.S. 622 (1994) (No. 93-44) LEXIS 1993 U.S. Briefs 44 (quoting Renton, 475 U.S. at 48). ""Id. at *7 . ‘”Id. at *8. ‘99Id. 120 broadcasting as ”an important source of local news and "m” reflected nothing more than public affairs programming the “value" of free broadcast television and did not raise content-based concerns.501 Content-based concerns, the NAB said, arise when government compels or suppresses particular speech or differentiates among speakers based on the viewpoints expressed.“” The must-carry provisions, by contrast, do not regulate speech based on the viewpoint of its message and thus do not implicate strict scrutiny review.503 The NAB coupled this argument with the idea that whatever “special right" to strict scrutiny review survived their content-based/content-neutral reasoning, that that right was supplanted by the bottleneck characteristic of 504 the cable industry; The bottleneck argument was integral to overcoming past judicial acceptance of the idea that the cable industry was “the electronic equivalent of 5001992 Cable Act 5 2(a)(11), 106 Stat. at 1461. 501Brief for the National Association of Broadcasters at *9, Turner Broadcasting System v. FCC, 512 U.S. 622 (1994) (No. 93-44) LEXIS 1993 U.S. Briefs 44. See also Turner I, 512 U.S. at 648. ’“See Brief for the National Association of Broadcasters at *9-11, Turner Broadcasting System v. FCC, 512 U.S. 622 (1994) (No. 93-44) LEXIS 1993 U.S. Briefs 44. See also Turner I, 512 U.S. at 647, 655-658. 503Id. ’“See Brief for the National Association of Broadcasters at *11-13, Turner Broadcasting System v. FCC, 512 U.S. 622 (1994) (No. 93-44) LEXIS 1993 U.S. Briefs 44. See also Turner I, 512 U.S. at 660-61. 121 newspapers." With the U.S. Supreme Court's acceptance of the NAB's two-prong constitutional argument regarding the must-carry provisions, the cable industry would now be assessed for First Amendment purposes by the bottleneck standard—a standard the Court and the broadcast lobby believed was suited to the special problems the cable medium presented.505 This standard would no longer give the cable industry the ”upper hand in the marketplace." The legal and regulatory advantage had shifted with the development of the bottleneck standard and that shift reflected the values of the broadcast lobby. In the Turner cases, the Court relied heavily on the arguments put forth by the NAB. In this manner, the adjudication process was not completely independent of political influences. Instead, it reflected the ideas and values of those who had much to gain by a particular interpretation of First Amendment guarantees and a particular formulation of an established legal standard. This study shows that the legal reasoning employed by the Court in its formulation of the bottleneck standard closely followed the legal argument put forth by the NAB in their Supreme Court brief. The Court accepted the broadcaster's ’“See Turner I, 512 U.S. at 657; Brief for the National Association of Broadcasters at *7-8, Turner Broadcasting System v. FCC, 512 U.S. 622 (1994) (No. 93-44) LEXIS 1993 U.S. Briefs 44. 122 idea that whatever traditional free speech protection survived a viewpoint-based/viewpoint-neutral analysis, such protection Should not be extended to the cable industry. The cable industry should not receive full First Amendment protection, the NAB argued and the Court agreed, because of its ability to exercise bottleneck monopoly power.506 The NAB based their argument on the idea that the assignment of free speech rights can in certain circumstances impact competition in the economic marketplace. And when competition is threatened, a measure of free speech protection must be curtailed to ensure a level playing field among rival economic interests. This idea, which departs from traditional First Amendment law in that it permits government to restrict free expression in the name of economic regulation, formed the underlying principle of the bottleneck standard. It was also the central premise in the broadcast industry's argument before Congress, for broadcasters argued that the cable industry had secured too great of First Amendment rights, which in turn gave cable operators an undue marketplace advantage. A restriction on those rights in the form of the must-carry legislation was needed, the lobbyists said, to circumvent ’“See Brief for the National Association of Broadcasters at *11, Turner Broadcasting System v. FCC, 512 U.S. 622 (1994) (No. 93-44) LEXIS 1993 U.S. Briefs 44. See also Turner I, 512 U.S. at 660-61. 123 cable's bottleneck control over the video programming market. The broadcast lobby'S argument before Congress supports institutionalism's idea that the assignment of rights, even First Amendment rights, confers a greater economic advantage on the individual or group that secured the right than on those who did not. Rights, the insitutionalists argue, are assigned through a process of conflict resolution where government chooses whose interest will be realized and who will be able to use government for 5“ Legal conflict resolution, according to the what ends. institutionalists, becomes a subjective process that mandates the introduction of value judgments in choosing between competing interests. The ideas of the institutionalists are somewhat supported by the findings of this study. This study shows that the NAB was successful in furthering its own interests and incorporating within law its own values and ideas, for the bottleneck standard, itself, reflects the NAB's interpretation of the First Amendment. This finding, then, conforms to the institutionalist belief that judicial outcomes reflect the values of those who are most able to use government to 507See supra text accompanying note 131. 124 5” and tends to contradict the further their own ends conventionalist argument that constitutional interpretation is a judicial exercise that is completely independent of the political process. Conventionalists, however, would maintain that the correlation between the NAB'S argument and the Court’s opinion proves nothing more than that the NAB and the Court hold similar interpretations of the First Amendment. Both interpretations are objective, conventionalists would maintain, as long as both conform to established legal standards and are grounded in settled constitutional principles. The problem with this argument is that within the realm of First Amendment law, no universally accepted First Amendment principle exists. Instead, constitutional interpretation depends upon and reflects the analogies used, definitions applied and assumptions employed. This discretionary process is reflected in this study in the selection and interpretation of the legal rule and in the determination of how the facts of the given case fit the rule chosen. The Court's interpretation and application of the O’Brien rule was a matter of discretion. Its decision to adopt or follow the NAB's argument regarding the bottleneck characteristic and its bearing on the O'Brien so“See supra text accompanying note 41. 125 standard was a matter of discretion, as no established precedent supported the Court’s action. The problem with the constitutional interpretation process in the Turner case is that it can lead to similar behavior in other cases. In fact, the U.S. Supreme Court’s action in Turner was supported by a set of judicial opinions, including plurality decisions, that have adopted a revisionist reading of the intermediate scrutiny Standard. This revisionist reading reflects the differing values and choices of members of the judiciary. It also reflects the indeterminate quality of law and has resulted in a splintering of established precedent defining the O’Brien standard. CHAPTER FIVE O’BRIEN: AN EVOLUTIONARY RULE The O’Brien standard was developed to adjudicate cases where ”’speech’ and ’nonspeech’ elements are combined in the same course of conduct”509 and where an important or sufficient governmental interest exists in regulating the 5” At the core of the O’Brien standard is nonspeech element. the understanding that the nonexpressive conduct regulated by government has a purpose and meaning independent of any potential for speech.“1 And it is that purpose and meaning that the regulation targets.512 Speech is incidentally abridged only when the prohibited conduct is employed in such a manner as to communicate a message.513 The speech function thus becomes an unintended target of the regulation.“‘ Directly analogous to the O’Brien precedent is a group of recent cases involving the constitutionality of the “”O’Brien, 391 U.S. at 376. SIOId. 511See Id. at 375, 378-81. See also, Donnelly & Sons v. Campbell, 639 F.2d 6, 16 (1“ Cir. 1980) (explaining that billboards are unlike draft cards in that they do not ”have a purpose and meaning independent of any potential for speech by the holder"). 512See O’Brien, 391 U.S. at 381-82. 513See Id. at 382. 51‘See Id. 127 Freedom of Access to Clinic Entrances Act (FACE).515 Congress enacted FACE in 1994 to “ensur[e] access to lawful health services and protect[] the constitutional right of women seeking abortions and other pregnancy-related treatment."”° With the enactment of FACE, government prohibited three types of conduct: use of ”force," ”threat of force," and “physical obstruction.”17 Like the destruction of draft cards in the O’Brien case, the activities prohibited by FACE have a purpose and meaning independent of any potential for Speech. The prohibition, therefore, is clearly unrelated to the suppression of expression. A person violates FACE regardless of whether the proscribed conduct was employed to communicate a message. Instead, the regulation simply forbids any person from engaging in conduct the government has a legitimate right to prohibit. The use of ”force, the ”threat of force," or ”physical obstruction" are activities that when employed to ”intentionally injure[], intimidate[] or interfere[] . . . 'with any person . . . obtaining or providing reproductive ”‘See U.S. v. Gregg. 226 F.3d 253 (3“ Cir. 2000), U.S. v. Weslin, et al., 156 F.3d 292 (2“‘Cir. 1998), Planned Parenthood v. Walton, 949 F. Supp. 290 (E.D. Pa. 1996), Terry, et al. v. Reno, 101 F.3d 1412 (D.C. Cir. 1996), American Life League v. Reno, 47 F.3d 642 (4“ Cir. 1995). 516Terry, 101 F.3d at 1419. See Gregg, 226 F.3d at 267, Weslin, 156 F.3d at 297-98, Walton, 949 F. Supp. at 293, American Life League, 47 F.3d at 651. ”TFreedom of Access to Clinic Entrances Act, 18 U.S.C. s 248 (1994). 128 health services"518 are fully within government’s power to restrict and target the nonspeech element of proscribable conduct. Courts that reviewed a constitutional challenge to the Clinic Access Act applied the four-prong O’Brien test to the facts at handJS” The important Similarities between FACE and the prohibition against draft card destruction warranted the application of the O’Brien standard to assertions that the Clinic Access Act violated the free speech rights of anti-abortion protestersf“20 The O’Brien precedent was followed in each of these cases, and the Act, which passed the four-prong test, was upheld as constitutional.521 While the FACE legislation is directly analogous to the O’Brien precedent, the must-carry statute is not“22 With the must-carry rule, Congress is not prohibiting nonexpressive anti-competitive conduct}:23 Instead, it is mandating a favored status within the cable system for SlBId. 519Terry, 101 F.3d at 1418-20, Gregg, 226 F.3d at 267-68, Weslin, 156 F.3d at 297-98, Walton, 949 F. Supp. at 293, American Life League, 47 F.3d at 651-52. 52°See Terry, 101 F.3d at 1419. 521See supra note 519. 522See infra text accompanying notes 605-09: 559-50- 523See infra text accompanying notes 606-08. 129 local broadcasters and the messages they communicate.““ The speech function is thus not an unintended target of the regulation but the primary focus of the application of the statute.5‘25 Likewise, the speech restriction, which results, is not an incidental byproduct of a legitimate governmental prohibition on nonexpressive anti-competitive conductf“26 It does not result, as it did in O’Brien, because the proscribed conduct was employed in such a manner as to communicate a message that the regulation was in no way 527 trying to target. Instead, the restriction on Speech occurs as a direct consequence of the regulation, and the regulation itself has no application independent of any potential for speech.528 The fact that the must-carry legislation is not directly analogous to the O’Brien precedent does not necessarily signal that the Court was unconstrained by established legal standards and constitutional interpretations in its Turner decisions. Judgments are considered correct when judges act only on reasons provided ’“See infra text accompanying notes 609, 650-56. 523See infra text accompanying notes 650-60. ’"See infra text accompanying notes 593-95- 5""See id. ”'See infra text accompanying notes 606-09, 650-56. 130 9 by law and not on extra-legal reasons“2 and when legal reasoning can be harmonized with the background justifications and purpose that a legal rule should serve.”° Varying applications of law or the formulation of new rules must be grounded in settled principles that evolve and are binding only if they have considerable authoritative support in a line of judgmentsf“31 The determination of whether the application of the O’Brien rule to the facts in Turner can be harmonized with the rule's purpose and justification requires an examination of the line of judgments arising from the O’Brien case. In Turner I, the Court justified its application of the O’Brien standard by virtue of the bottleneck characteristic of the cable medium.532 The question that remains is whether the Court’s reasoning in those decisions ensures a coherence of purpose with the line of judgments arising from the O’Brien case. Central to the purpose of the O’Brien rule is the principle that ”First Amendment rights are not confined to verbal expression" but encompass ”appropriate types of 52“See supra text accompanying note 77- ’”See supra text accompanying note 87-88. 331See supra text accompanying note 111-14- 532512 U.S. at 660-62. 131 action."533 Thus the distinction between “speech" and ”conduct that has expressive components is fundamental."”‘ O’Brien applies only to the latter and only in a limited way.535 The O’Brien Court warned that it would not permit a limitless variety of conduct to be labeled as speech.“36 but left it to subsequent judgments to discern when an activity becomes sufficiently imbued with speech as to trigger the application of the O’Brien rule. From its inception, the purpose of the O’Brien rule was to elevate the scrutiny certain government regulations 537 receive. Regulations that punish conduct used to communicate a message are held to an intermediate level of 538 scrutiny under O’Brien. This heightened level is justified“” given the ”well settled" principle that ”freedom ””Eisenstadt v. Baird, 405 U.S. 438, 459 (1972) (Douglas, J., concurring)(citing Brown v. Louisiana, 383 U.S. 131, 141-42 ()). See Texas v. Johnson, 491 U.S. 397, 404 (1989); Spence v. Washington, 418 U.S. 405, 409-10 (1974); O’Brien, 391 U.S. at 376. ’“U.S. v. Weslin, 156 F.3d 292, 297 (2“ Cir. 1998). See O’Brien, 391 U.S. at 376-77. s”See O’Brien, 391 U.S. at 376-77. 536Id. at 376. 5"See id. at 376-77. 53IId 5”“In most cases, the government may regulate conduct without regard to the First Amendment because most conduct carries no expressive meaning of First Amendment significance." Schultz v. City of Cumberland, 228 F.3d 831, 841 (7“ Cir. 2000). In such incidences, courts review the appropriateness of government’s action under rational basis scrutiny. See Barnes v. Glen Theatre, 501 U.S. 560, 580 (1991) (Scalia, J., concurring). In O’Brien, the Court “recognized the symbolic conduct of 132 of speech extends beyond traditional verbal and written communication" to include forms of expressive conduct such as symbolic speech,*“ Once conduct is recognized as possessing First Amendment protection,*“ government actions restricting it are suspect under the constitutional principle that distrusts government intervention in the marketplace of ideas.“2 Government actions are distrusted in regards to regulation of speech activities because government has a strong incentive and possesses the power to censor particular viewpoints and messages.“3 A marketplace where the free flow of information has been effectively controlled by government is a marketplace in which truth will never prevail and where the central draft-card burning as First Amendment expression" and ”applied intermediate scrutiny." Schultz, 228 F.3d at 841. See O’Brien 381, U.S. at 376-77. s“’Hernandex v. Fredericksburg-Rappahannock, 800 F. Supp. 1344, 1349 (E.D. Va. 1992) (citing, e.g., Texas v. Johnson, 491 U.S. at 404; Schacht v. United States, 398 U.S. 58, (1970); Tinker v. Des Moines Indep. Community School Dist., 393 U.S. 503 (1960)). ’“In order for conduct to be “sufficiently imbued with elements of communication to fall within the scope of the First Amendment," “[a]n intent to convey a particularized message" needs to be present and “in the surrounding circumstances the likelihood [must be] great that the message would be understood by those who viewed it." Spence, 418 U.S. at 410-11. ’“See, e.ga, Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, J., dissenting). 5‘3Id. 133 purpose of the constitutional guarantee of freedom of speech will never be realized.“‘ While the O’Brien Court recognized that some measure of heightened First Amendment protection was required for symbolic speech, the Court refused to elevate the scrutiny government regulation of expressive conduct receives to the most exacting level.’“ That level, known as strict scrutiny, is reserved for potential abridgements of ”pure speech."“‘ Through its adoption of an intermediate scrutiny test, the U.S. Supreme Court sent a Signal to the lower courts that “the First Amendment tolerates greater governmental interference with expressive conduct" than with pure speech.“7 The idea that such interference is tolerated under the First Amendment?“ has fueled an evolution of the O’Brien 544Id. 5“See O’Brien, 381 U.S. at 376-77. ’“See Tinker, 393 U.S. at 505. See also, Buckley v. Valeo, 424 U.S. 1, 64-65 (1976) (explaining that the government must survive exacting scrutiny when a “conduct" statute significantly encroaches on First Amendment rights); Elrod v. Burns, 427 U.S. 347, 363, n.17 (1976) (explaining that when speech per se is restricted by a regulation O’Brien does not apply); Goguen v. Smith, 471 F.2d 88, 99-100 (1972) (discussing at what point conduct becomes akin to pure speech and noting that when conduct akin to pure speech is at issue “Tinker," not “O’Brien," applies). ’"Schultz, 228 F.3d at 841. "The government generally has a freer hand in restricting expressive conduct than it has in restricting the written or spoken word." Johnson, 491 U.S. at 406 (citing O’Brien, 391 U.S. at 376-77; Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293 (1984); Dallas v. Stanglin, 490 U.S. 19, 25 (1989)). 5481-d. 134 precedent. In the line of judgments arising from the decision, courts have applied the intermediate scrutiny standard to a host of factual situations far afield from 549 the one in the O’Brien case. The altered applications of the O’Brien rule has blurred the distinction between the 550 and speech and nonspeech elements of expressive conduct diluted the requirement that the government restriction must be aimed solely at the nonspeech element to justify an incidental abridgement of the speech element.551 Moreover, judicial opinions have varied in the degree to which governmental action is questioned and scrutinized under the O’Brien rule.552 Decisions in which governmental action is left largely unquestioned have diminished the rule’s central purpose of providing a heightened level of scrutiny to restrictions on expressive conduct.553 And lastly, the U.S. Supreme Court has largely eroded the rule’s distinctiveness through fused applications of the O’Brien standard and the test for time, place and manner ’“See infra text accompanying notes 560-501- 550See infra text accompanying notes 576-91. 551898 552See 5“See infra infra infra text text text accompanying accompanying accompanying notes notes notes 592-601. 697-726. 710-26. 135 restrictions.”‘ The fusion of these two separate legal standards has not only added to the diminution of O’Brien’s central purpose but has also helped to create a First Amendment standard where government is given increasing power to regulate speech activities once the interest it seeks to promote is deemed “content-neutral" by the court.555 Content-neutrality, however, is by no means a settled legal concept, as courts differ on what constitutes ”content" in terms of in First Amendment law.”‘ Applying the O’Brien Rule to the Facts In the line of cases following the O’Brien decision, courts were faced with the question of when the O’Brien rule should be applied to a set of facts. The U.S. Supreme Court as well as various lower courts have rejected the rule's application in factual situations where 1.) there is little or no expressive component to the conduct;557 2.) no ’“See infra text accompanying notes 616-91. The time, place and manner test is an intermediate scrutiny standard designed to adjudicate government restrictions on the time, place or manner of a speech activity in an open public forum. See infra text accompanying notes 622-28. 555See infra text accompanying note 678-91. ’“See infra text accompanying notes 679-91. 557See Federal Trade Commission v. Superior Court Trial Lawyers, 493 U.S. 411, 430-32 (1990) (boycott by group of attorneys who regularly accepted court appointments to represent indigent defendants); Arcara v. Cloud Books, 478 U.S. 697, 702 (1986) (prostitution and other illicit sexual activities occurring on the premises of an adult bookstore); Williams v. Hathaway, 400 F. Supp. 122, 126 (D. Mass. 1975) 136 nonspeech element exists in conjunction with the expressive activity558 and 3.) the regulation in question is related to the suppression of free expression.559 The nonspeech conduct subjected to regulation must manifest an element of protected expression to fall within the ambit of the O’Brien standard.“so Conduct that does not 5“ will not contain a sufficient expressive component implicate the First Amendment and will, therefore, not trigger the application of the O’Brien rule.“” Similarly, the expressive activity restricted by government must occur in conjunction with an independent nonspeech element to (nude sun bathing on semi-isolated stretch of federal beach land); American Baptist Churches v. Meese, 712 F. Supp. 756, 764 (N.D. Ca. 1989) (harboring illegal aliens); O'Connor v. City and County of Denver, 894 F.2d 1210, 1219-20 (10“ Cir. 1990) (public sex acts occuring on the premises of an adult movie theatre); Hernandez, 800 F. Supp. 1344, 1351 (E.D. Va. 1992) (wearing of mask in KKK rally). ’“See Spence, 418 U.S. at 410-11; Elrod, 427 U.S. at 363 n.17; Buckley, 424 U.S. at 16; Eisenstadt, 405 U.S. at 459-60; Donnelly, 639 F.2d at 16; Anderson v. Vaughan, 327 F. Supp. 101, 103 (D. Conn. 1971); Gaudiya Vaishnava Society v. City of San Francisco, 952 F.2d 1059, 1065 (9“ Cir. 1991); Chalifoux v. New Caney Independent School Dist., 976 F. Supp. 659, 666 (8.0. Tx. 1997). See also Goguen, 471 F.2d at 100 n.18 (The court, here, applied O’Brien even though the conduct at issue was “closely akin to ’pure speech. '" The court reasoned that if the statute cannot meet the O’Brien standard, “it is a fortiori unconstituional if viewed as affecting pure speech.") $59See Johnson, 491 U.S. at 407; Consolidated Edison v. Public Service Commission of New York, 447 U.S. 530, 540 n.9 (1980); Simon & Schuster v. Fischetti, 916 F.2d 777, 781 (2‘Dd Cir. 1990); U. S. v. Eichman, 731 F. Supp. 1123, 1130 (D.C. Cir. 1990); U.S. v. Haggerty, 731 F. Supp. 415, 419-20 (W.D. Wash. 1990); Schulz, 228 F.3d at 844; Collin v. Smith, 578 F.2d 1197, 1209 (7“11 Cir. 1978). ’“See Arcara, 478 U.S. at 705, 707 n.3. 5“See supra note 557. ’“See, e.g., Arcara, 478 U.S. at 702-03; O’Brien, 391 U.S. at 376. 137 fall within the O’Brien rule.“53 Some forms of communication made possible, for example, by carrying or displaying a 64 flag,5 wearing a rosary,“” giving and spending money in 66 political contests,5 and becoming a member of a partisan organization567 are more akin to pure speech than a speech- plus-conduct message. These forms of communication convey an “unmistakable message"5‘58 and do not involve conduct that 569 has a nonspeech purpose or meaning. By contrast, the conduct regulated in O’Brien had a purpose and meaning independent of the speech activity.”° However, where pure speech or expressive activity akin to pure speech is involved ”no conduct element exists for government to prohibit.”71 Thus, regulations that target an expressive activity that has no nonspeech element do not fit within the purpose of the O’Brien precedent. 563See Elrod, 427 U.S. at 363 n.17; Buckley, 424 U.S. at 16. 5“See Spence, 418 U.S. at 410-11; Anderson, 327 F. Supp. at 103; Goguen, 471 F.Zd at 98-100. 56sSee Chalifoux, 976 F. Supp. at 666- 5“See Buckley, 424 U.S. at 16. 5"See Elrod, 427 U.S. at 363 n.17. ’“Spence, 418 U.S. at 410. ’“See Id. at 411; Eisenstadt, 405 U.S. at 459-60; Elrod, 427 U.S. at 363 n.17; Buckley, 424 U.S. at 16. ’"See O’Brien, 391 U.S. at 375, 378-82. ’“Chalifoux, 976 F. Supp. at 666. 138 Finally, the aim of government’s restriction must be related to the nonspeech purpose or meaning of the proscribed conduct.572 Therefore, the “alleged governmental interest in the regulating conduct" may not arise ”because the communication integral to conduct is thought to be harmful.”73 Statutes that forbid the desecration of U.S. flags to preserve national unity are an example of regulations that punish conduct based on the belief that the communicative aspects of the conduct are harmfulis" The O'Brien precedent will not apply in such circumstances because the government’s interest in the regulation of conduct is related to the suppression of free expression.575 The ability to differentiate between the speech activity and the nonspeech conduct is fundamental to the 576 application of the O’Brien standard. Factual Situations in which either an expressive component or an independent nonspeech element is undiscernable are clearly outside the 577 reach of the O’Brien rule. While the former fails to 572See, O’Brien, 391 U.S. at 375, 378-82; Johnson, 491 U.S. at 407; Buckley, 424 U.S. at 17. 5"O’Brien, 391 U.S. at 382. ’"See Johnson, 491 U.S. at 410-11; Spence, 418 U.S. at 412-15; Eichman 731 F. Supp. at 1130; Haggerty, 731 F. Supp. at 419-20; Cline v. Rockingham County, 367 F. Supp. 1146, 1151 (D. N.H. 1973). ’"See, e.g., Johnson, 491 U.S. at 410. ’"See Eisenstadt, 405 U.S. at 458. EmSee supra text accompanying notes 557-58. 139 implicate the First Amendment, the latter provides no justification for lowering the level of scrutiny government 5" Nevertheless, the regulation of expression receives. O’Brien precedent has been applied to factual situations in which the ability to recognize and distinguish between the speech and nonspeech element is clouded. This is especially true in a host of recent cases regulating public nudity in relation to erotic nude dancingu‘”.Although the U.S. Supreme Court has yet to form a majority opinion regarding the regulation of nude erotic dancing, plurality opinions in Barnes v. Glen Theatre580 and City of Erie v. Kandyland581 provide an understanding of the application of the O’Brien 5781d. 579See City of Erie v. Kandyland, 529 U.S. 277 (2000); Barnes v. Glen Theatre, 501 U.S. 560 (1991); D'Angio v. Borough of Nescopeck, 34 F. Supp.2d 256 (M.D. Pa. 1999); J a B Entertainment v. City of Jackson, 152 F.3d 362 (5th Cir 1998); Chase v. Davelaar, 645 F.2d 735 (9“‘Cir. 1981); La Rue v. California, 326 F. Supp. 348 (C.D. Ca. 1971); Sammy’s of Mobile v. City of Mobile, 140 F.3d 993 (11“ Cir. 1998); Krueger v. City of Pensacola, 759 F.2d 851 (11“ Cir. 1985); Grand Faloon Tavern v. Wicker, 670 F.2d 943 (11“ Cir. 1982); Gatena v. County of Orange, 80 F. Supp.2d 1331 (M.D. Fla. 1999); Toy Box, Inc. v. Bay County, 989 F. Supp. 1183 (N.D. Fla. 1997); Cafe 207, Inc., v. St. Johns County, 856 F. Supp. 641 (M.D. Fla. 1994); Jorgenson v. County of Volusia, 625 F. Supp. 1543 (M.D. Fla. 1986). 5""501 U.S. 560 (1991). ’“529 U.S. 277 (2000). Kandyland was decided several years after the Turner decisions were handed down and therefore had no impact on the development of the bottleneck standard. The plurality opinion in Kandyland is used in this study to help establish that a modified reading of the O’Brien standard has taken place. It is this modified or revised reading of the O’Brien standard, this paper argues, that has contributed to the development of the bottleneck standard. 140 standard to factual situations involving public indecency ordinances. In Kandyland, a majority of the Court agreed that ”government restrictions on public nudity . . . should be evaluated under the framework set forth in O’Brien."582 O’Brien was selected as the standard of review even though the public nudity restriction was not directly analogous to the regulation in the O’Brien case.583 In Kandyland as well as Barnes, the restriction at issue banned an entire category or form of expressive activity—nude erotic dancing“dehile permitting, in certain circumstances, other 585 types of nudity and nude theatrical performance. In 5821d. at 289, 310. 5”See id. at 326. 5"‘While “current constitutional doctrine treats obscene speech as a unique category of expression receiving absolutely no constitutional protection," obscenity is “limited to genuinely ’hard-care’ pornographic expression." RODNEY SMOLLA, FREE SPEECH IN AN OPEN SOCIETY 324-25 (1992). Thus ”relatively little speech falls within the category" of obsenity as it is presently defined. Id. at 325. See Miller v. California, 412 U.S. 15 (1973). Erotic nude dancing of the type at issue in Kandyland and Barnes, the U.S. Supreme Court said, “is expressive conduct" that falls within the “outer ambit of the First Amendment’s protection." Kandyland, 529 U.S. at 289. See Barnes, 501 U.S. at 565-66. 5"“Both the ordinance at issue in Kandyland and the statute at issue in Barnes on their face are general prohibitions on public nudity. Kandyland, 529 U.S. at 290; Barnes, 501 U.S. at 566. However, in Kandyland, the Erie City Council permitted a theatrical production of Equus to proceed without prosecution despite the nudity involved in the performance. Kandyland, 529 U.S. at 327-28 (Stevens, J., dissenting). The Erie ordinance also permits public nudity in the case of any Child less than ten years of age and “any individual exposing a breast in the process of breastfeeding an infant under two years of age." Id. at 283 n.1. In Barnes, the Indiana Supreme Court “appeared" to limit the breadth of the statute in State v. Baysinger, 397 N.E.2d 580 (1979) by adding that “it may be constitutionally required to tolerate or to 141 O’Brien, the statute prohibited the nonexpressive act of destroying a draft card regardless of the methods or means or circumstances by which the card was destroyed.586 Destruction of draft cards was targeted by the regulation in O’Brien because the conduct had an independent nonspeech purpose that government sought to prevent; namely, interference with the maintenance of the selective service system.587 By contrast, the nudity element in erotic nude dancing does not have an independent meaning or purpose other than that which is connected to the 5“ In fact the distinction between the message conveyed. speech activity (erotic dancing) and nonspeech conduct (nudity) is undiscernible.“39 Nudity is used to enhance the allow some nudity as a part of some larger form of expression meriting protection, when the communication of ideas is involved." Barnes, 501 U.S. at 565 n.1. But five years after Baysinger, the Indiana Supreme Court reversed a decision of the Indiana Court of Appeals, which held that the statute did not apply to theatrical performances such as the "Miss Erotica of Fort Wayne" contest, which contained partially nude dancing. Id. However, Indiana has not attempted to apply the statute to nudity in performances such as plays, ballets or operas. See id. at 590 (White, J., dissenting). Neither regulation addresses other non-lewd activities that involve public nudity, such as a nude model in an art Class or nude swimmers at the YMCA or nude sunbathing on private property that is observable from public property or adjacent private property. ’“See O'Brien, 391 U.S. at 375. ’"See Id. at 378-82. 5”Government's interest in prohibiting public nudity is to prevent society from witnessing the offense conduct. Government is not protecting the same interest in prohibiting public nudity in private establishment opened only to consenting adults. See Barnes, 501 U.S. at 591. 5”See Barnes, 501 U.S. at 592-93; Kandyland, 529 U.S. at 326. 142 erotic message.”° Its purpose is uniquely tied to the message in much the same way as the wearing of red ribbons is linked to an AIDS awareness message or black armbands is connected with an anti-war message. These forms of communication, like erotic nude dancing, are more akin to pure speech than speech-plus-conduct. Thus their message is impaired if, for example, the ribbon is yellow or the armband is green. The same, however, cannot be said of public nudity in general. The simple act of being nude is virtually pure conduct, with little or no expressive component. Thus, a government regulation restricting public nudity would have an application independent of any potential for speech. Under such a regulation, government may seek to ban public nudity because nudity itself is thought to be harmful to societal order and innocent passersby who are confronted with the offending sight. This nonspeech purpose is not implicated, however, when nude performances are only offered to consenting adults in private establishments. In such establishments, the danger of societal disorder and public corruption and outrage are greatly reduced as the ’“See Barnes, 501 U.S. at 592-93. 143 objectionable act is not thrust upon an unwilling audience.591 The ordinances at issue in Kandyland and Barnes were general bans on public nudity and did not directly target erotic nude dancing.“”.An ordinance that directly forbids erotic nude dancing would have a difficult time passing constitutional muster. Such a regulation would most likely be reviewed under the strict scrutiny standard, because government would be restricting expression instead of nonspeech conduct and would most likely fail a constitutional challenge. By comparison, the Supreme Court reviewed the Kandyland and Barnes ordinances under the O’Brien standard, defining them as general prohibitions on conduct—the act of being nude,“”even though the factual Situations were not directly analogous to the O’Brien precedent. Specifically, the regulations did not ban nudity in all circumstances. Exceptions were made for children and nursing mothers.“" In addition, selective application of the ’“See also Barnes, 501 U.S. at 589-91 (discussing the difference between general proscription on individual conduct and the public nudity statute at issue in the case). 592See supra note 583. However, the preamble to the Erie ordinance states that the regulation was adopted “for the purpose of limiting a recent increase in nude live entertainment within the City." Kandyland, 529 U.S. at 327. But the ordinance, itself, did not target erotic nude dancing. See id. at 283 n.1. 593Id. at 290. Barnes, 501 U.S. at 566-68. ’“See supra note 584. 144 public indecency regulations permitted nude theatrical performances and kept the restrictions from being Challenged on First Amendment grounds by a theatrical company . 595 The constitutional Challenge to the ordinances came from adult entertainment establishments that featured nude erotic dancing.596 Government sought to prohibit live nude entertainment in these establishments because such activity ”adversely impacts and threatens to impact . . . public health, safety and welfare by providing an atmosphere conducive to violence, sexual harassment, public intoxication, prostitution, the spread of sexually transmitted diseases and other deleterious effects."‘” Thus, nudity as nonexpressive conduct was not prohibited because it has an intrinsic nonspeech purpose or meaning that government needed to restrict. Nudity, itself, cannot impact violence, sexual harassment, public intoxication, prostitution, and the Spread of sexually transmitted diseases in the same way that the destruction of draft 5951-d. ’“See Barnes, 501 U.S. at 562-63; Kandyland, 529 U.S. at 283-84. 597Kandyland, 529 U.S. at 290. The Indiana legislature did not Cite a specific purpose for the statute in its legislative history. A three- member plurality of the Court inferred from the statute that Indiana was interested in protecting societal order and morality. Justice Souter, in a concurring opinion, said that the justification for the legislation was to discourage prostitution, sexual assaults and other 145 cards can impair the orderly administration of the selective service system or the use of force against a reproductive healthcare patient can prevent that patient from obtaining services. At best nudity may be an element present in certain sex crimes; however, that does not mean that a ban on all forms of nudity would prevent or even lessen the existence of such crime. The relationship between nudity and deleterious conduct is difficult to understand in a way that is analogous to the O’Brien precedent. The O’Brien rule requires that government restrictions are aimed at the nonspeech element of conduct and that the conduct regulated 598 is linked to a substantial government interest. Here the government restriction is aimed primarily at the expressive activity (erotic nude dancing)”9 in an effort to regulate harmful secondary effects often connected with seedy adult entertainment establishments. In the end, government’s requirement that erotic dancers wear pasties and g-strings serves only to diminish the impact of the erotic message“° and does little to lower crime and the other SO-called criminal activity. See Barnes, 501 U.S. at 582 (Souter, J., concurring). ’“O’Brien, 391 U.S. at 376. ’“See Barnes, 501 U.S. at 591-93; Kandyland, 529 U.S. at 326. 600See Barnes, 501 U.S. at 592. 146 deleterious effects connected with the adult establishment.601 By requiring that such ordinances be reviewed under 602 the O’Brien rule, the U.S. Supreme Court is altering the foundational qualifying factors associated with the O’Brien precedent. Specifically, the Court has allowed a regulation aimed primarily at the expressive component to be reviewed under the O’Brien standard. The applicability of the O’Brien rule to such a regulation resulted from a legal reasoning process that failed to distinguish between the speech and nonspeech elements in the expressive conduct restricted. This failure allowed the Court to neutralize the requirement that government restrictions must be aimed solely at the nonspeech element to justify an incidental abridgement of the Speech element. Both of these elements are fundamental to the purpose of the O’Brien standard, which is to increase/decrease the degree of scrutiny restriction of expressive conduct receives to an intermediate level.603 This level of scrutiny is not as demanding as the strict scrutiny standard under which content-based statutes are reviewed, but it is more 601See Kandyland, 527 U.S. at 323. “”See supra text accompanying note 582. “”See supra text accompanying notes 509-14, 533-47. 147 exacting than the Standard of review that statutes which regulate ”pure conduct" receive.““ The level of scrutiny is heightened/lowered under the O’Brien precedent to prevent government from using conduct restrictions to suppress messages with which it disagrees or promote viewpoints with which it agrees.605 The use of the O’Brien standard to determine the constitutionality of the must-carry statute does not fit within the rule’s original purpose. The must-carry legislation does not regulate "conduct" that has a purpose or meaning independent of a speech activity. It does not restrict nonexpressive anti-competitive conduct nor can it be employed to restrict such conduct. The must-carry legislation mandates that the messages of certain speakers 6“ This mandate does will be disseminated on a cable system. not have a nonspeech purpose. Its sole purpose is to ensure that the content of certain speakers is disseminated via a local cable system. In the Turner decisions, the Court never explained, as it did in the O’Brien case, how the must-carry rules could be employed to restrict “‘See supra text accompanying notes 537-47. “’See id. ““See 1992 Cable Act 5 4(a), 106 Stat. at 1471. 148 nonexpressive conduct.607 And the FCC never demonstrated how the provisions could alleviate nonexpressive anti- competitive conduct or that such conduct actually took place in the intervening years after the U.S. Court of Appeals for the District of Columbia declared the must- carry rules unconstitutional and before the 1992 Cable Act was passed.608 Instead, the government interest in regulating the actions of the cable industry arose because the type of communication targeted by the must-carry statute was thought to be beneficial to the marketplace of ideas.“”'With the must-carry statute, government was engaged in promoting a specific type of communication and not with preventing nonspeech anti-competitive behavior. As such, no justification existed under the original purpose of the O’Brien precedent for applying an intermediate scrutiny standard to a First Amendment challenge of the must-carry rules. With its recent decisions in Barnes and Kandyland, the Court has altered the original purpose of the O’Brien 607Under the must-carry rules, a cable system is still able to engage in nonexpressive, anti-competitive conduct that could harm the local broadcaster. Cable systems, for example, could still undercut a local broadcaster's advertising revenue by offering the station’s major advertisers extremely low ad rates on cable programming. ‘"They showed that stations were dropped, but not that the drops were anti-competitive. See 520 U.S. at 204-05, 242-44. ‘”See 1992 Cable Act 5 2(a)(10-11), 106 Stat. at 1461. 149 standard. Under this altered view, the distinction between the speech and nonspeech elements in the expressive conduct is muted, and O’Brien is applied to regulations that are aimed primarily at an expressive component. This altered view provides support for the use of O’Brien in the adjudication of the must-carry legislation. The mandatory carriage of broadcast channels like the mandatory wearing of g-strings and pasties modifies the message the communicator intended to send and does not, in and of itself, have an independent nonspeech purpose or meaning. Moreover, neither restriction can be employed independently in such a manner as to restrict only conduct that has no 6” Both restrictions, therefore, have a connection to speech. direct impact on expression and, while not analogous with the original purpose of the O’Brien precedent, have been reconciled with it through a reinterpretation process that modified the standard's qualifying factors, and, thereby allowed the O’Brien rule to accommodate factual situations in which an independent nonspeech purpose or meaning does not exist. “"While a prohibition on nudity per se is a nonspeech conduct restriction, the requirement that dancers in private adult establishments must wear pasties and a g-string is uniquely tied to the erotic expression and cannot be employed in such a manner as to restrict only nonexpressive conduct. See supra text accompanying notes 592-601. 150 The modification of O’Brien’s qualifying factors have diminished the effectiveness of the O’Brien precedent as a check on government abuses of First Amendment freedoms. For the speech restrictions, which resulted in the cases above, were not an incidental byproduct of a legitimate government prohibition on nonexpressive conduct. They did not result, as they did in O’Brien, because the proscribed conduct (public nudity or noncarriage of broadcast stations) was employed in such a manner as to communicate a message that the regulation was in no way trying to target. Instead, the restriction on speech occurred because government was trying to lessen the effectiveness of the erotic message611 or promote the dissemination of local news and public affairs and independent programming.“2 In short, the Court permitted government to accomplish with a thinly disguised nonexpressive conduct statute what it could not accomplish with an ordinance aimed directly at erotic nude dancing or local broadcast programming. The fact that the Court upheld the ordinances in Kandyland and Barnes sent a signal to the lower courts that interference with the First Amendment is tolerated provided it can be regarded as a ”content-neutral" regulation of a ““See supra text accompanying notes 596-601. .usee 1992 Cable Act S 2(a) (10-11), 106 Stat. at 1461. 151 general Class of conduct (such as public nudity or anticompetitive behavior) and the effect of the 6” This evolution of interference on expression is slight. the O’Brien precedent has prompted the courts to use the four-prong scrutiny test as a catch-all standard for First Amendment challenges of restrictions that are somehow related to expressive activity and can be characterized in 5“ The content-neutral someway as content-neutral. requirement has superseded the distinction between the speech and nonspeech elements as the central qualifying factor in the determination of whether a factual situation would be reviewed under the intermediate scrutiny standardi“:15 But without careful scrutiny of this ‘HSee Schulz, 228 F.3d at 841-42. In Barnes, the plurality called Indiana’s restriction on erotic nude dancing (the requirement that dancers must wear pasties and G-strings) "modest" and the "bare minimum necessary to achieve the State’s purpose." Barnes, 501 U.S. at 572. The Turner Court noted that "[s]ignificant evidence indicates the vast majority of cable operators have not been affected in a significant manner by must-carry." Turner II, 520 U.S. at 214. ‘“Lower courts have applied the O’Brien rule to cases involving the regulation of public nudity and nudity in establishments where liquor is served as well as the location, hours of operation, dance stage height, video viewing booth enclosures, contact with customers, condemnation of property and general licensing of sexually oriented business. See Appendix A for a list of these cases. Many of the regulations at issue in these cases are akin to pure conduct restrictions that have little or no connection to an expressive activity. When courts choose to apply the O’Brien standard to such regulations, the application dilutes the central purpose of O’Brien, which is to heighten the degree of scrutiny restrictions that "incidentally" abridge speech receive. mSee, e.g., Kandyland, 529 U.S. at 289. Compare Kandyland, 529 U.S. at 289 (explaining that the O’Brien standard applies “[i]f the governmental purpose in enacting the regulation is unrelated to the suppression of expression"; with Texas v. Johnson, 491 U.S. at 407 (recognizing that “O’Brien’s relatively lenient standard" is directed 152 distinction, the O’Brien rule is easily applied to factual situations, such as the must-carry legislation, where the activity regulated does not have a purpose and meaning independent of any potential for speech and where the regulation in question is not specifically targeted at proscribing the nonexpressive element. In the end, these altered applications of the O’Brien standard permit speech restrictions that occur, not as an unintended byproduct of a legitimate nonspeech prohibition, but aS a direct consequence of the regulation itself. And in this sense, a modification of the purpose of the O’Brien precedent has taken shape. Content Neutrality and the O’Brien Rule The idea that increased interference with First Amendment freedoms is tolerated as long as the restriction results from a "content-neutral" regulation has grown in significance with the U.S. Supreme Court’s practice of conflating the O’Brien rule and the time, place and manner Standard. In the 1984 case Clark v. Community for Creative 616 NOn-Violence, ‘the Supreme Court said that the O’Brien rule at cases "where ’speech and nonspeech elements are combined in the same course of conduct'" but is limited to "those cases in which ‘the governmental interest is unrelated to the suppression of free expression.’" ““468 U.S. 288 (1984). 153 ”is little, if any, different from the standard applied to time, place and manner restrictions."“"7 If a restriction passes the time, place and manner test, "it is untenable to invalidate it under O’Brien.”1a The Court’s position regarding these two standards has resulted in a process of legal reasoning in which a factual situation may be framed under the O’Brien standard and then partially analyzed 619 under the time, place, or manner precedent or framed and 5“ or framed as a content- analyzed under both standards neutral regulation and analyzed by conflating the two standards.621 Under the time, place and manner standard, "government may impose reasonable restrictions on the time, place or manner of protected speech provided the restrictions ’are justified without reference to the content of the regulated Speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the 61”Id. at 298. 618Id. at 298 n. 8. 619 Id. See City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 804-05, 808-10 (1984); Kandyland, 527 U.S. at 295-301. “”See Clark, 468 U.S. at 293-99. 621See United States v. Albertini, 472 U.S. 675, 687-89 (1985)- 154 '””” This standard differs from O’Brien in that information. it allows government to impose restrictions on the speech activity itself as long as those restrictions merely 623 relocate or redirect Speech. The O’Brien standard, by contrast, requires that government prohibitions target a nonspeech activity completely unconnected from any potential for speech. The speech restrictions, therefore, differ between these two standards. With the time, place and manner standard, the restriction on speech is not an unintended byproduct of the regulation itself. It does not arise because the proscribed nonspeech conduct was employed in such a manner as to communicate a message. Instead, the restriction on Speech is permitted because government is 624 not censoring expression. It is merely circumscribing the Choice as to where, when, and how the speech activity may occur.“25 Government, therefore, is not affecting the ‘"Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989) (quoting Clark v. Community for Creative Non-Violence, 468 U.S. at 293). 623Compare Heffron v. International Society for Krishna Consciousness, 452 U.S. 647, 647 (1981) (explaining that the "First Amendment does not guarantee the right to communicate one’s views at all times and places or in any manner that may be desired) and Grayned v. City of Rockford, 408 U.S. 104, 115-16 (1972) (explaining that protected speech is subject to reasonable time, place and manner restrictions); with O’Brien, 391 U.S. at 375-76 (explaining that the O’Brien standard applies to regulations restricting "conduct having nothing to do with speech"). mSchultz, 228 F.3d at 845. ‘”See Renton v. Playtime Theatres, 475 U.S. 41, 48 (1995)- 155 626 marketplace of ideas. It is not suppressing viewpoints it opposes or somehow promoting ideas it supports.“27 And because it is merely rearranging the placement of messages within the marketplace, strict scrutiny of government action is unwarranted.628 Since no abridgement of speech is likely to occur when messages are simply re-routed without regard to their content, Challenges to time, place and manner restrictions are adjudicated under a relaxed intermediate scrutiny Standard.629 Restrictions are content-neutral, under the time, place and manner standard, as long as government can justify the prohibitions "without reference to the content of the regulated speech."630 ”[R]egulations are justified without reference to the content of regulated speech" when they "do not single out a particular viewpoint or category [[631 of speech for different treatment. "Instead, all speech is treated similarly in an effort to advance a significant government interest unrelated to content."632 ““See Renton, 475 U.S. at 48-49. "’Id. “'Id. ‘”See supra text accompanying notes 523-28° 630Clark, 468 U.S. at 293. “”SChultz, 228 P.3d at 840. mId. This reading of what constitutes a "content-neutral" regulation is consistent with the U.S. Supreme Court’s definition of content-based. 156 While the Supreme Court "has long held that regulations enacted for the purpose of restraining speech on the basis of its content presumptively violate the First Amendment,”33 some time, place and manner regulations are acceptable even though they are content-based on their face.““ Courts often call these restrictions "content- neutral without explaining that the regulations are in fact content-based and only analyzed as content-neutral when certain preconditions are met."635 One precondition that can cause a content-based time, place and manner regulation to be analyzed as content-neutral is when the content at issue involves sexually explicit materials.“36 In Renton v. Playtime Theatres,637 the U.S. Supreme Court held that "at least with respect to businesses that purvey sexually explicit materials, zoning ordinances designed to combat the undesirable secondary effects of such businesses are to In Consolidated Edison v. Public Service Commission of New YOrk, the Court said that content-based "extends not only to restrictions on particular viewpoints, but also to prohibition of public discussion of an entire topic." 447 U.S. at 537. "As a general matter, ’the First Amendment government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.’" Id. (quoting Police Department of Chicago v. Mosley, 408 U.S. 92, 95 (1972). mRenton, 475 U.S. at 46-47. ““See id. at 47; Schultz, 228 F.3d at 845. ‘”Schultz, 228 F.3d at 845. ““See DiMa v. Hallie, 185 F.3d 823, 828 (1999). ‘"475 U.S. 41 (1986). 157 be reviewed under the Standards applicable to ’content- neutral’ time, place and manner regulations."‘” Although these ordinances "single[] out adult-oriented establishments for different treatment based on the content "639 of the materials they sell or display, strict scrutiny does not apply because the content at issue involves a 0 sexually explicit message,“‘ and the restrictions at issue are aimed at the secondary effects of the speech.“1 2 643 In Boos v. Barry,“ a three-member plurality extended the Renton analysis to political Speechufl“ The plurality explained that regulations, like the one at issue in Renton, that single out a particular category of speech are viewed as content-neutral provided that the justification 638Id. at 49. “"DiMa, 185 F.3d at 828. “°Id. ““Boos v. Barry, 485 U.S. 312, 320 (1988). ““485 U.S. 312 (1988). “”The case involved a District of Columbia statute that made it unlawful to display within 500 feet of a foreign embassy any sign tending to bring a foreign government into public disrepute. Id. at 315. A unanimous Court believed that the statute was content-based and, therefore, subject to strict scrutiny. See id. at 317, 321, 334, 338. Three members of the Court (Justice Kennedy took no part in the decision) found that the statute passed strict scrutiny review. See id. at 317, 338. The remaining five members struck down the statute based on strict scrutiny review. Id. at 329. However these members split three to two on the "proposition that an otherwise content-based restriction on speech can be recast as ’content-neutral’ if the restriction ’aims’ at ’secondary effects’ of the speech." Id. at 334 (Brennan, J., concurring). “‘See id. at 337. 158 for the restriction has nothing to do with the speech targeted by the regulation.*“ A secondary-effects rationale is accepted as content-neutral, the plurality said, as long as the effects, which government is trying to combat, have nothing to do With content.646 In Renton, for example, the "desire to suppress crime ha[d] nothing to do with the actual films being shown inside adult move theatres."“7cnl the other hand, regulations that target the effect of speech on its audience are likely to be viewed as content- basedumw "Listeners’ reactions to speech," the plurality said, "are not the type of ’secondary effects’" that would be considered content-neutral.“9 This same line of legal reasoning can be found in the Turner decisions. The must-carry legislation singled out certain electronic content providers for differential treatment.”° Differential treatment was mandated by Congress because Congress feared that local broadcasters would become financially strapped and possibly fail without a ‘”See id. at 320-21. 6”See id. “7rd. at 320. “'Id. at 321. “’Id. “”See Turner I, 512 U.S. at 641, 645. 159 guaranteed placement on cable systems.651 Guaranteed placement was necessary because cable operators had a financial incentive to favor cable programming over broadcast programming.652 This incentive, Congress said, would cause cable operators to drop local broadcast stations from their systems.653 The potential loss of broadcast stations alarmed Congress because broadcasters provided viewers with valuable content; i.e., local news and public affairs programming.“‘ Although the Court agreed that broadcasters were singled out for favored treatment655 and that the favored treatment was based partly on the value of the 656 communication they dissemination, the Court refused to apply strict scrutiny.657 Like in Renton, strict scrutiny did not apply in the Turner decisions because certain preconditions were met. Particularly, the Court noted that the technological Characteristics of cable systems, which gave the cable operator the ability to silence others with 651See Turner I, 512 U.S. at 634, 665; Turner II, 520 U.S. at 208. 652See Turner I 512, U.S. at 634; Turner II, 520 197-201. “”See Turner I, 512 U.S. at 634. ‘“See 1992 Cable Act 5 2(a)(11), 106 Stat. at 1461; Turner I, 512 U.S. at 648, 676-77 . “”See Turner I, 512 U.S. at 645. ‘“See Turner I, 512 U.S. at 648. 65"See Turner I, 512 U.S. at 661. 160 the flick of switch, constituted a precondition that did not warrant strict scrutiny.658 The Court also explained that the need to ensure fair competition in television programming market by mandatory carriage of broadcast Signals had nothing to do with the particular viewpoint of the programming supplied by the cable or broadcast industries.659 Instead, the Court found that the justifications for must-carry legislation were aimed at combating the undesirable "secondary effects" that could occur if mandatory carriage of broadcast signals was not enacted; namely, the financial failure of certain broadcast Stations.660 These two preconditions provided the Court with the reasoning necessary to review the must-carry legislation under the O’Brien standard, even though the rules singled out certain speakers for differential treatment based on the type of content they delivered and the regulation was justified by linking a speech activity (dissemination of cable programming) to certain harmful secondary effects (anti-competitive behavior by cable operators). ”BSee Turner I, 512 U.S. at 660-61. “’See id. at 652. ““See Turner II, 520 U.S. 208-13. 161 Although the Turner Court did not refer to Renton in its adjudication of the must-carry issue, the two approaches rest on the same idea. The Renton approach, as revisited in Boos, like the legal reasoning process in the Turner decisions, rests on the idea that any statute which discriminates based on the content of speech will be reviewed under an intermediate scrutiny standard provided that the regulation aims at some secondary effect that does not on its face target speech.“51 This approach can be harmonized in part with O’Brien’s requirement that the regulation in question must target a nonspeech element.662 But the U.S. Supreme Court also noted that the statute at issue in O’Brien “plainly [did] not abridge free speech on its face,"“63 and that "both [the] government interest and operation" of the statute were limited to the nonspeech aspect of O’Brien’s conduct.“‘ Therefore, application of the O’Brien rule in a manner that conforms to the secondary effects rationale represents a modification of the O’Brien precedent. A modified reading of the O’Brien precedent is further produced when the Court engages in a practice of fusing the “RSee id. at 320-21, 334, 336. ““391 U.S. at 376. 66"’Id. at 375. ‘“1d. at 381. 162 O’Brien rule and time, place and manner standard. Modification occurs because the fused application of the two standards allows for greater use of judicial discretion in the analysis of the O’Brien standard. For example, even though the Court has accepted a secondary effects rationale as justification for a restriction on a speech activity under the O’Brien rule,665 this practice is more analogous to the time, place and manner standard than to O’Brien. The content discriminatory time, place or manner regulation in Renton received content-neutral scrutiny by the Court because government "advanced zoning schemes supported by secondary-effects rationales."666 The regulation fit ”comfortably within the rubric of a time, place or manner"667 standard because it merely concentrated the availability of sexually-oriented businesses to certain areas of the city in order to diffuse the secondary effects associated with these establishments.“° The ordinance, though discriminatory on its face, neither "stifled" nor "significantly burdened the availability of adult entertainment."“” By preserving 6"See supra text accompanying notes 597-601. “‘Schultz, 228 F.3d at 845. See Renton, 475 U.S. at 54. “’Schultz, 228 F.3d at 845. See Renton, 475 U.S. at 46. ‘“Schultz, 228 F.3d at 845. See Renton, 475 U.S. at 52. 66”Schultz, 228 P.3d at 845. 163 alternative Channels of communication for sexually explicit speech, the ordinance was upheld as a constitutional time, place or manner restriction.“° The O'Brien Court, on the other hand, maintained that the important governmental interest in regulating expressive conduct must be directly linked to the nonspeech element of the proscribed conduct...“71 The question of whether alternative channels exist for the communication of the restricted message was not part of the initial O’Brien standard.“72 This is because O’Brien was originally designed to deal with statutes that prohibit certain conduct.“3 If these statutes targeted speech, then expression per se was prohibited, not merely redirected, and the marketplace of ideas was diminished. Because of the vast number of channels a cable system can support, an argument can be made that must-carry simply relocates broadcast and cable programming and that the marketplace is not diminished. Under such an analysis, the adjudication of the must-carry rules would fit more comfortably under the rubric of the time, place and manner standard than the O’Brien rule. The fact that alternative “"See id. at 846; Renton, 475 U.S. at 54. ‘"O’Brien, 391 U.S. at 376. “"See Id. at 376-77. 673See Id. at 375-76. 164 Channels exist for cable programming, however, does not mute the point that the must-carry rules strip away a certain amount of editorial control from the cable operator and cable subscriber. A restriction on editorial control because it is akin to pure speech does not serve the central purpose of the O’Brien rule, but it may be partially harmonized with intent and design of the time, place and manner standard. The time, place and manner standard deals with restrictions on the speech activity as long as those restrictions are merely circumscribing the Choice as to when, where and how speech is disseminated. Mandatory carriage because it merely ensures the availability of local broadcast channels on cable systems in order to diffuse potential secondary effects associated with noncarriage is more closely aligned with the intentions of the time, place and manner than with the underlying purpose of the O’Brien precedent. Yet this analysis takes the time, place and manner standard far afield from its purpose. A cable system, like a newspaper or broadcast station, is not an open forum for speech. It is not a public place where various viewpoints can be disseminated. It is content place controlled by a business interest and the decision of what programming will appear on a cable system is a decision that reflects either 165 positively or negatively upon the cable company that controls the content space. The time, place and manner standard, on the other hand, applies to public forums. It grants government limited power over the placement of a speech activity in a open public forum and does not extend to forums controlled by others.“‘ When the O'Brien and the time, place and manner standards are conflated, a greater opportunity arises for the use of judicial discretion in the analysis of factual situations that may or may not serve the original purpose of either standard. A conflated intermediate scrutiny standard allows a judge to choose among the various legal reasonings associated with each individual rule and to emphasize those reasons that support a particular resolution and ignore those that do not. Thus by conflating the two standards, a judge simply possesses more reasons “"See Cox v. Louisiana, 379 U.S. 536, 558 (1965) (stating that it is “undisputed that appropriate, limited discretion, under properly drawn statutes or ordinances, concerning the time, place, duration or manner of use of the streets for public assemblies may be vested" in government officials); Heffron, 452 U.S. at 650-51 (contending that the ”State’s interest in protecting the ’safety and convenience' of person using a public forum is a valid governmental objective" under the time, place, and manner standard); Grayned, 408 U.S. at 116 (explaining that the nature of the public place “dictate[s] the kinds of regulations of time, place and manner that are reasonable"); Forsyth County v. Nationalist Movement, 505 U.S. 123, 130 (1992) (stating that the government, in order to regulate competing uses of public forums, may impose" a "permit scheme controlling the time, place and manner of speech"). See also Hudgens v. National Labor Relations Board, 424 U.S. 507, 521 (1976) (explaining that the First Amendment "has no part to play" in guaranteeing access to a privately owned shopping center for the dissemination of ideas). 166 upon which to base a decision. This practice not only leads to greater judicial discretion, but also results in a modification of each standard whereby certain initial qualifying factors are lost in the conflated analysis and Others get emphasized or redefined in some manner. The practice of conflating the O’Brien rule and the time, place and manner standard has decreased the significance of certain qualifying factors associated with the O’Brien precedent. Most important among those factors is the fact that the O’Brien standard was designed to adjudicate cases where "’speech’ and ’nonspeech’ elements are combined in the same course of conduct”75 and where an important governmental interest in regulating the nonspeech element exists.“76 These qualifying factors have largely been eroded by the practice of conflating the two standards.677 Instead, content-neutrality has emerged as the primary controlling factor in whether a factual situation will be 6”O'Brien, 391 U.S. at 376. 67GId. ”"Compare Chase v. Davelaar, 645 F.2d 735, 739-40 (9“‘Cir. 1981) (rejecting the application of the O’Brien rule to an ordinance prohibiting topless entertainment in all non-theatrical establishments because ordinance is not directed at non-expressive conduct) with Kandyland, 529 U.S. at 286-93 (applying the O’Brien standard to an ordinance prohibiting public nudity in order to combat crime and other negative secondary effects associated with adult entertainment establishments) and 15192 Thirteen Mile Road v. City of Warren, 626 F. Supp. 803, 823 (E.D. Mich. 1985) (applying the O’Brien rule to an ordinance that regulates the ability of adult-oriented businesses to locate within the city even though the O’Brien case involved symbolic speech and was not adopted to adjudicate zoning cases). 167 adjudicated under the O’Brien rule.“78 Content-neutrality is associated with both standards, and, therefore, conflated applications of the rules stress its materiality. While content-neutrality is part of both standards, the exact definition of what constitutes a "content-based" restriction varies among judicial decisions employing either or both standards.“9 The Supreme Court’s decision in Renton led one court to suggest that lower courts "are not limited to a literal interpretation of the phrase ’content- neutral’ but may determine whether speech is content- neutral or content-based with reference to the government’s " 680 proffered justification for the restriction. This same court extended the definition of ”content-based" to include source-based as well as viewpoint and subject matter 681 preferences. While courts agree that viewpoint- or message-based distinctions are content-based,“2 some 67“Kandyland, 529 U.S. at 289. ‘"See supra text accompanying notes 633-49 for discussion on content- neutrality and secondary-effects rationale. “”Bartnicki v. Vopper, 200 F.3d 109, 122 (3“ Cir. 1999). 681See Id. at 122 (arguing that a "ban on the publication of information obtained through experimentation on human embryos" would be content- based "even if such experimentation were illegal"). mSeeBoehner v. McDermott, 191 F.3d 463 (D.C. Cir. 1999) (explaining that the regulation at issue is content-neutral because it "neither favors nor disfavors any particular viewpoint"); Universal City Studios v. Reimerdes, 111 F. Supp.2d 294, 328-29 (S.D. N.Y. 2000) (quoting Ward, 491 U.S. at 791) (explaining that "’principal inquiry in determining content neutrality’ is whether the regulation was adopted because of agreement or ‘disagreement with message it conveys’"). 168 judicial decisions have included speaker-based683 as well as subject matter“‘ and category-based restrictions as violations of the First Amendment."85 Others contend that speaker-based distinctions are content-based only when the regulation also discriminates on the basis of the Speaker’s message.686 In O’Brien, the Court concluded that the statute was "content-neutral" because the statute itself "deal[t] “”See Quincy Cable Tv v. FCC, 768 F.2d 1434, 1453 (D.C. Cir. 1985) (explaining that regulations that "favor one group of speakers over another" "profoundly affect values that lie near the heart of the First Amendment"); Century Federal v. City of Palo Alto, 648 F. Supp. 1465, 1474 (N.D. Ca. 1986) (explaining that "the first amendment will not tolerate the government’s suppression of speakers, even on a content- neutral basis, in the newspaper, movie, and book industries on the ground that the one speaker granted access provides the greatest variety of articles, movies or publications at the lowest price); 200 F.3d 109, 122 (3“ Cir. 1999); ““Community Service Broadcasting of Mid-America v. FCC, 593 F.2d 1102, 1111-1112 (D.C. Cir. 1978) (concluding that the statute is not content- neutral because application is ”dependent upon the subject matter of programming"). The Supreme Court has also acknowledged that “a constitutionally permissible time, place or manner restriction may not be based upon either the content or subject matter of speech." Consolidated Edison, 447 U.S. at 536. See Police Department of the City of Chicago v. Mosley, 408 U.S. 92, 95 (1972); Heffron, 452 U.S. at 648. “”Mendelsohn v. Meese, 695 F. Supp. 1474, 1482 (S.D. N.Y. 1988) (explaining that the regulation at issue is content-neutral because it does not "distinguish between speech in favor of or against any particular ideology" nor is it "aimed at prohibiting or limiting categories of speech"). ‘“U.S. West v. U.S., 48 F.3d 1092, 1100 (9“ Cir. 1994) (citing Turner I, 512 U.S. at 658) (explaining that "’speaker-based laws demand strict scrutiny when they reflect the Government’s preference for the substance of what the favored speakers have to say (or aversion to what the disfavored speakers have to say)’"); Daniels Cablevision v. U.S., 835 F. Supp. 1, 4-5 (D.D.C. 1993) (arguing that only "overtly" content- based regulations—those "telling speaker what can or cannot be said"—need be held to strict scrutiny); Chesapeake and Potomac Telephone Company v. U.S., 830 F. Supp. 909, 923 (E.D. Va. 1993) (explaining that "strict scrutiny is not applicable to a statute which targets a prticular class of speaker . . . unless the statute also discriminates based on the content" of the speaker’s message). 169 with conduct having no connection with speech”87 and the justifications for the regulation did not arise "because the communication allegedly integral to the conduct [was] itself thought to be harmful."688 The O’Brien Court, therefore, required that the regulation itself and the justification for the enactment of the regulation must be completely detached from the communicative element of the conduct prohibited. This requirement is in marked contrast to the Renton approach and the approach followed by the Turner Court that allowed content-discriminatory statutes to be adjudicated as content-neutral regulations if the justifications for such regulations are linked to noncommunicative secondary- effects. This approach, wrote one court, "Signals a Significant retreat from the traditional content- based/content-neutral distinction."“” "The notion that a legislative act curtailing First Amendment rights is to be evaluated based on its justification rather than on its "’O’Brien 391 U.S. at 375. 6"Id. at 382. In determining whether the government interest is content- neutral or content-based, other courts have echoed this point, maintaining that the alleged harms which justify the regulation may not arises in some measure from the communicative content of the conduct. See Young v. New York City Transit Authority, 903 F.2d 146, 158-59 (2"' Cir. 1990). 6”Chesapeake, 830 F. Supp. at 924. 170 operation is more than a little troubling."“° The approach is troubling not only because it allows government to restrict Speech as a means of regulating secondary effects but also because such restrictions are now adjudicated under a blended intermediate scrutiny standard that has severely undermined the original purpose of the O’Brien precedent. SO-called "modern" readings of the O’Brien precedent have fused or supplanted the four-prong analysis with a more broadly worded standard that permits content- discriminatory restrictions provided they are "narrowly tailored," "serve a significant government interest" and preserve "ample alternative channels for communication."‘91 Likewise, the definition of what constitutes an incidental abridgement of speech has also changed with the conflated application of the two standards. Because time, place and manner restrictions directly regulate protected speech, the idea that an incidental abridgement may occur because proscribed conduct may be used in such a way as to communicate a message is irrelevant in a conflated analysis. Arising in its place is the condition that the regulation constitute only a slight or insignificant burden 69°Id. 691Id. at 926. See Kandyland, 529 U.S. at 301; Bartnicki, 200 F.3d at 123-24; Colacurcio v. City of Kent, 163 F.3d 545, 551-52 (9“ Cir. 1998); 11126 Baltimore Boulevard v. Prince George’s County, 886 F.2d 1415, 1420-21, 1426 (4“ Cir. 1989); Scanner, 191 F.3d at 468; Young, 903 F.2d at 157-60. 171 6” This condition, while noted in the Turner on the speech. decisions,693 differs greatly from the original purpose of O’Brien that only incidental abridgements are constitutional.“‘ Incidental in the sense used by the O’Brien Court meant that the regulation was aimed directly at the nonspeech element of expressive conduct.“”.And only because that element was also used as a means to communicate a message was speech incidentally abridged.696 The Degree to which Government Actions are Scrutinized The forth prong of the O’Brien rule requires that "incidental restrictions on First Amendment freedoms" must be "no greater than is essential" to further the substantial interest the regulation was designed to ‘”Compare Kandyland, 529 U.S. at 301 (explaining that the "requirement that dancers wear pasties and G-string is a minimal restriction in furtherance of the asserted government interests and the restriction leaves ample capacity to convey the dancer’s erotic message) with Schultz, 228 F.3d at 841 (explaining that the effect on expression in the O’Brien case “was merely incidental to the content-neutral ban on the general class of conduct because the ban applied to draft-card destruction of all forms, not only to draft-card burning intended as expression). ‘”See Turner I, 512 U.S. at 647 (explaining that the must-carry provisions "do not produce any net decrease in the amount of available speech" ; and Turner II, 520 U.S. at 214 (noting that the burden on cable operators from the must-carry regulation is “modest" and "will soon diminish as cable channel capacity increases"). ““See supra text accompanying notes 511-14. “”See Schultz, 228 F.3d at 841. “‘See id. 172 secure.“"'Under a conflated analysis of the O’Brien standard, an insignificant or "incidental" burden on speech is not greater than essential Simply because one or more alternatives exist that would be less restrictive of Speech.698 The "narrowly tailored" requirement that has arisen from these "modern" applications of the time, place and manner Standard and the O’Brien rule has virtually supplanted the finding of law in the O’Brien case regarding the forth prong. In O'Brien, the Court noted that "no alternative means . . . would more precisely and narrowly assure" the government’s interest than the means employed by the statute at issue in the case.“” Courts have read the narrowly tailored requirement of the O’Brien rule and time, place and manner standard as requiring a least intrusive 0 means analysis70 and, consequently, declared regulations invalid where less speech-restrictive alternatives exist.701 697O’Brien, 391 U.S. at 377. ‘”See Albertini, 472 U.S. at 688-89; Clark, 468 U.S. at 299. "’O’Brien, 391 U.S. at 381. 700See Clark, 468 U.S. at 299; Ward, 491 U.S. at 797, 804-07. A least restrictive means requirement "mandate[s] an examination of alternative methods of serving the asserted government interest and a determination whether the greater efficacy of the challenged regulation outweighs the increased burden it places on protected speech." Ward, 491, U.S. at 805 (Marshall, J., dissenting). In ward, the Obligation of government to adopt "the least intrusive [speech] restriction necessary to achieve its goals" was abandoned by the U.S. Supreme Court. See id. at 803. 701Ide 173 In ward v. Rock Against Racism,702 the U.S. Supreme Court affirmed that the narrowly tailored requirement of the time, place and manner standard and the O’Brien rule does 7” Instead, not demand a least restrictive means analysis. "the requirement of narrow tailoring is satisfied," the Court explained, "’so long as the . . . regulation promotes a substantial government interest that would be achieved less effectively absent the regulation.’"”‘ Under the Court’s modern reading of the forth prong, the focus of analysis centers on the ability of a regulation to achieve its ultimate purpose. A regulation will pass the forth prong of the O’Brien rule, according to the Court, if a significant government interest is achieved more effectively with the regulation than without it.705 While this requirement affirms the fact that a regulation must promote a significant government interest, it leaves open the question of how a court is to determine whether the regulation actually achieves its purpose. Does a court, for instance, simply accept a Claim by government that the regulation accomplishes its goal, or does a court require government to present some form of proof as to the 702491 U.S. 781 (1989). 703Id. at 798. "‘Id. at 799 (quoting Albertini, 472 U.S. at 689.) 7”See, e.g., id. 174 necessity and efficiency of the restriction? And if proof is required to what extent does a court scrutinize the findings and evidence upon which the substantiation is based? The scrutiny "content-neutral" regulations receive under the Court’s modern analysis does not include an independent judicial determination of the degree to which the regulation achieved the government’s interest.706 Regulations that have little effect on the interests they are designed to promote will pass the narrowly tailored requirement as long as some connection, however slight, exists between government’s purpose for the regulation and the restriction itself.707 Government may constitutionally restrict expressive activity, under this analysis, without proving whether the regulation substantially alleviated the harm it was intended to alleviate708 or without providing factual evidence that the problem addressed by the regulation is real as opposed to merely speculative.709 The 706See id. at 806. 707See id. ’"See Clark, 468 U.S. at 297, 299. In Clark, the National Park Service banned sleeping as part of a political demonstration, but allowed the staging of a continuous 24-hour vigil in order to lessen the wear and tear on park property and maintain the park in "an attractive and intact condition." Id. at 308. 70"See id. at 297. The Court also accepted a Claim by the National Park Service that "absent a prohibition on sleeping," numerous "other groups would demand permission to deliver an asserted message by camping." Id. 175 validity of "content-neutral" regulations, the Court said, "does not turn on a judge’s agreement with the responsible decisionmaker concerning the most appropriate method for promoting significant government interests."“° Dissenters to this practice Charge that the Court has traveled far afield from the central requirement of judicial review regarding the First Amendment. "The First Amendment," they say, "requires the Government to justify every instance of abridgement."711 The modern application of the narrowly tailored requirement, they contend, replaces "constitutional scrutiny with mandatory deference."712 Heighten scrutiny is necessary, they argue, to secure the principles upon which the First Amendment rests.713 "If the Government cannot adequately justify abridgement of protected expression," they conclude, "there is no reason why citizens should be prevented from exercising" their First Amendment rights.“‘ The underlying principle of the O'Brien precedent-that heighten scrutiny is demanded when free expression is The administration of such demands, the Park Service feared, would "present difficult problems." Id. 11°Albertini, 472 U.S. at 689. 711Clark, 468 U.S. at 309 (Marshall, J., dissenting). ’“Ward, 491 U.S. at 803 (Marshall, J., dissenting). 713See Clark, 468 U.S. at 309. 176 restricted—has diminished in importance with the modern application of the narrowly tailored prong of the O’Brien standard. The U.S. Supreme Court has effectively decreased the degree Of scrutiny government restrictions of free speech activities receive by admonishing lower courts for conducting independent examinations of alternative regulatory methods and failing to defer to the legislative determinations of government.“5 In Turner II, the plurality reaffirmed the Turner I dictum that the Court’s sole obligation was to assure that Congress had "’drawn reasonable inferences based on substantial evidence.’"716 But under the Turner II plurality’s approach, a higher degree of deference was accorded to the judgments of Congress than the Court normally gives to policy decisions made by administrative agencies.717 According to the Court, this degree of deference was due Congress even though the must- Carry statute imposed burdens on speech because Congress 71‘Id. at 310 . 715See Ward, 491 U.S. at 800. 716Turner II, 520 U.S. 180, 195 (1997) (quoting Turner I, 512 U.S. 622, 666 (1994) (plurality opinion)). 717Id. at 195. 177 was "’far better equipped than the judiciary to amass and evaluate the vast amounts of [economic] data."’"718 The Court’s current exercise of judicial review of legislation that incidentally abridges free expression stands in marked contrast to earlier judicial actions on the subject. In Williams v. Illinois,719 Justice Harlan explained that "the deference owed to legislative judgment is nOt the same in all cases.""20 Less deference is owed to legislative judgment in cases involving "legislation that regulates conduct but incidentally affects freedom of expression" than in cases where the legislation in question restricts conduct alone."“‘While courts will uphold the latter if "it is a rational choice to effectuate a legitimate legislative purpose," the former may be declared invalid even though it effectively promotes a legitimate government interest.”2 This line of thought runs counter to the Court’s affirmation in Hard that the narrowly tailored prong is satisfied so long as a significant government interest is achieved more effectively with the regulation 71.8 Id. at 195 (quoting Turner I, 512 U.S. at 665-66 (quoting Walters v. National Assn. of Radiation Survivors, 473 U.S. 305, 331, n.12 (1985))). 719399 U.S. 235 (1970) (Harlan, J., concurring). "°Id. at 263. 721Id. 722Id. 178 than without it. By contrast in the Court’s earlier analysis of legislation that regulates conduct and incidentally burdens speech, increased scrutiny of government action was required to determine whether the legislation in question imposes an undo burden on free expression or if other means, less restrictive of speech, exist.”3 Modern applications of the O’Brien and time, place and manner standard have not only abandoned judicial scrutiny of alternative methods but have also directed courts to defer to government’s "expert judgment" in cases where no legitimate doubt has been cast upon that judgmenta”“ Under this analysis, legitimate doubt does not arise when evidentiary proof regarding the need for the restriction is lacking or specific findings supporting the regulation are absent.725 Thus legislation that infringes upon free speech may be upheld as constitutional even though government did not conduct new studies or provide evidence that certain harms are real and the regulation combats the alleged harms . 72‘ 7231d. 7“Kandyland, 529 U.S. at 298. ’”See id. at 298-301. 72“See id. 179 Through a reinterpretation of the narrowly tailored requirement of the O’Brien and time, place and manner standard, the U.S. Supreme Court has effectively lowered the degree of scrutiny certain abridgements of free speech receive. Scrutiny of government actions is lowered by a practice of judicial review that ceases to demand that government prove that the regulation in question substantially alleviates the harms it was intended to alleviate and that the efficacy of the method chosen for combating the alleged harms outweighs the increased burden it places on protected speech. When judicial scrutiny of government actions is lowered, deference for legislative judgment increases. This practice results in a diminution of free speech protection and a reinterpretation of constitutional precedent that loses sight of the underlying principles upon which original case law rested. Once such a process is set in motion, precedent is significantly modified and the types of factual situations upheld as constitutional under the specific legal standard are greatly expanded. This process has occurred with the O’Brien standard. The O’Brien precedent once stood as means for adjudicating regulations that targeted specific conduct but for which the proscribed conduct was employed in such a manner as to 180 also express a message. The O’Brien standard mandated increased scrutiny of government action because First Amendment freedoms were involved. Under the principle set forth in O’Brien, incidental abridgements of free expression would be permitted as long as the regulation was unrelated to suppression of free speech and served a Significant government interest and the restriction on speech was no greater than essential to further the government’s interest.727 Today this rule has been fused with the time, place and manner standard,”” where it has now been applied in factual situations other than those where the regulation is aimed at conduct but incidentally burdens speech,"” It has been used, instead, to uphold regulations that were 0 designed to restrict expression?’ and where the regulation in question does not clearly advance the targeted government interest.731 Likewise, its requirement that the restriction on expression be no greater than essential in order to pass the O’Brien rule has been altered to permit restrictions on speech even though means less restrictive 727See O’Brien, 391 U.S. at 376-77. ’“See supra text accompanying notes 616-21. ’"See supra text accompanying notes 579-605. 73"See supra text accompanying notes 598-610. 731See supra text accompanying notes 500-01- 181 of expression exist and evidentiary proof of the regulation’s effectiveness is absent.732 Although the O’Brien rule was applied in the Turner decisions, the analysis the Court followed varied greatly from the original principles laid down in the O’Brien case. The legal reasoning used by the Turner Court represented a modification of the O’Brien standard that resulted from a line of judgments that conflated the time, place and manner 7” and abandoned the Standard with the O’Brien rule qualifying factors upon which the O’Brien precedent is based.”" While a significant line of cases supports the idea that little difference exists between these two standards,735 much of the modification in the adjudication of these standards has taken place at the hands of fractured pluralities.736 132See supra text accompanying notes 703-725- 733See supra text accompanying notes 622-54- 73‘See supra text accompanying notes 502-509- 735See, e.g., Clark, 468 U.S. at 298. 73‘In Barnes, a three-member plurality applied the four-part O’Brien test to a public indecency statute aimed at nude erotic dancing on the finding that the statute was designed to protect morals and public order and was, therefore, content-neutral. See Barnes, 501 U.S. at 567- 70. Justices Souter and Scalia concurred in the judgment but on different grounds. Like the three-member plurality, Justice Souter applied the O’Brien standard to the indecency statute, but found that the statute was content-neutral because its intent was to prevent prostitution, sexual assault and other criminal activity linked to adult entertainment establishments. See id. at 584-85. Justice Scalia said the statute was a general regulation of conduct that did not implicate the First Amendment. See id. at 572. In Kandyland, a four- 182 In Barnes and Kandyland, a fractured plurality used O’Brien to uphold the constitutionality of ordinances directed at expressive activity that did not occur in conjunction with an independent nonspeech element.”37 The plurality also accepted as a rationale for the restrictions in question the presence of criminal conduct?38 linked not to member plurality, following Justice Souter’s concurrence in Barnes, found that a public indecency statute aimed at erotic nude dancing was content-neutral and thus passed the O’Brien test because government’s intent for enacting the statute was to alleviate harmful secondary effects associated with adult entertainment. See Kandyland, 529 U.S. at 296-302. Justice Souter, who concurred in part and dissented in part, agreed with the "anaytical approach" that the four-member plurality employed, but found that the record did not support the conclusion that the harms flowed from the expressive activity and that the regulation actually diminished the effects of the harms. See id. at 310-15. Finally, in Boos, a three-member plurality extended the secondary effects rationale to political speech. See Boos, 485 U.S. at 320-21. 737See supra text accompanying notes 582-99. ’“In Barnes, a three-member plurality Cited government’s interest in protecting morals and public order as the statute’s purpose. Barnes, 501 U.S. 569-70. Justice Scalia, who concurred in the judgment but wrote separately, said the statute was a general regulation of conduct that did not implicate the First Amendment. Id. at 572. Under his analysis, the regulation was held only to rational basis review and, thus, the restriction did not need to advance an "important" government interest. Id. at 579-80. Justice Souter was the fifth member of the Court to concur in the judgment. He also wrote a separate opinion, in which be relied upon government’s interest in preventing prostitution, sexual assault and other criminal activity linked to the establishment wherein the nude dancing occurred as justification for the regulation. Id. at 582-83. Although the three-member plurality and Justice Souter agreed that the statute furthered an important interest, they "parted ways over what that interest was." Schultz v. City of Cumberland, 26 F. Supp.2d 1128, 1140, (W.D. Wis. 1998). In Marks v. United States, the Court said that when lower courts are confronted with fractured Supreme Court Opinions, "the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds." Marks, 430 U.S. 188, 193 (1977). Most lower courts, applying the Marks rule, "have concluded that Justice Souter’s opinion represents the controlling holding in Barnes because it is ’narrower’ than the rationale to which the plurality subscribed." Schultz, 26 F. Supp.2d at 1140. In Kandyland, a four-member plurality accepted the government’s argument that nude dancing is likely to produce harmful secondary effects, such as "violence, public intoxication, prostitution and other serious criminal activity," and that the restriction on nudity furthers an important interest in combating these effects. 183 the conduct regulated but, at best, to the establishment wherein such conduct is permitted.”9 This secondary effects argument has allowed government to justify its abridgement of expressive activity with a host of interests unconnected to the actual conduct regulated and to single out certain categories of speech for differential treatment without defending its actions under strict scrutiny review."° All in all these decisions have severely altered the underlying purpose of the O’Brien precedent that restrictions on conduct must advance an important government interest completely unrelated to expression.”1 And that any incidental restriction on free expression which results from a nonspeech conduct regulation must be no greater than Kandyland, 529 U.S. at 297. Justice Souter, who partially concurred in the judgment and partially dissented, agreed that the government's stated interest in combating secondary effects associated with nude dancing was important. See id. at 310. He was not satisfied, however, that the evidentiary record supported the conclusion that the harms flowed from expressive activity and that the regulation actually diminished the effects of the harms. See id. at 312-15. Justice Souter's analysis in Kandyland represents a shift from the lax standard he articulated in Barnes. For if one applied the Barnes standard to its "logical conclusion, one naturally comes to the point where the government can ban all forms of erotic dancing, nude or otherwise, so long as there are pernicious side effects somehow associated with the performance." Nakatomi Investments v. City of Schenectady, 949 F. Supp. 988, 997 (N.D.N.Y. 1997). 739See supra text accompanying notes 599-601. 7“See supra text accompanying notes 633-49. 7‘1O’Brien, 391 U.S. at 376. 184 essential to further the independent nonspeech justification that the regulation was designed to secure."2 "’Id. at 377. 185 CONCLUSION The underlying purpose of this study is to acquire a better understanding of how First Amendment standards develop and evolve and how that evolution impacts the regulation of speech. Two disparate legal theories postulate two different explanations regarding the adjudication process. Conventionalism maintains that established legal principles that spell out the purpose that a legal rule is supposed to serve guide and direct the adjudication process.’“ Changes in existing law or the formulation of new rules must also conform to these authoritative principles so that law ultimately retains a consistent Characterum“ Institutionalism, on the other hand, contends that the application and formulation of legal standards is essentially a subjective process that reflects the choices and values of those who have participated and prevailed in the decisionmaking process.m“ The use of legal rules and principles in adjudication, the institutionalists argue, is a matter of selective perception that is not deducible by deductive logic or by inference from a set of legal facts."° ’“See supra text accompanying notes 84-90. 7“See supra text accompanying note 114. ’“See supra text accompanying note 138-40. 7“See supra text accompanying note 139-40. 186 In an effort to ascertain which of these two theories provides a better explanation of how First Amendment Standards develop, this paper examined the extent to which the development of the bottleneck standard was constrained by the application of established legal principles and the extent to which the political process and judicial discretion impacted the formulation of this constitutional rule. Specifically, this study aimed to discover: 1.) To what extent was the development of the bottleneck rule constrained by established legal standards and to what extent were those established standards a function of the various analogies used, definitions applied and assumptions employed by the jurist? 2.) To what extent were the interests of broadcasters reflected in the development of the bottleneck standard? 3.) And finally to what extent has the need for judicial discretion in the application of the O’Brien rule modified this constitutional standard and led to increased regulation of speech? To conclude that the development of the bottleneck standard conforms to the settled constitutional principles upon which the O’Brien case stands would contradict the findings of this study. The bottleneck standard developed in part because various U.S. Supreme Court opinions in recent years have fashioned a fused intermediate scrutiny 187 standard that varies greatly from the original principles upon which the O’Brien case rests. Through a legal reasoning process of narrowly interpreting isolated passages of the O’Brien case and fusing those interpretations with the time, place and manner standard, members of the Court have rewritten the law surrounding the intermediate scrutiny standard in general and the O’Brien standard in particularu”" Currently, the O’Brien standard no longer rests upon the idea that the government must justify every abridgement of speech, even those abridgements that occur through the enforcement of nonspeech conduct regulations."° Heightened scrutiny of government actions is required under this principle because government still possesses the power and incentive to suppress speech that it considers harmful and promote speech that it believes is valuable with the enactment of regulations aimed solely at conduct. The idea that government may not regulate conduct because it believes the communication integral to the conduct is 749 harmful is a principle upon which the O’Brien case rested. Revised applications of the O’Brien standard, some at the "’See supra text accompanying notes 515-705- "'See supra text accompanying notes 707-17- ””O'Erien, 391 U.S. at 382. 188 hands of fractured pluralities, whittled away this principle and have allowed government to single out classifications of speakers for differential treatment based on the value or harm of the content of the materials they sell, display or disseminate.”° This revisionist view of O’Brien formed the foundation of the legal reasoning process from which the bottleneck standard was developed, and as such, provides support for the finding that the development of the bottleneck standard was constrained by prior court decisions. A conventionalist would maintain that a jurist has the discretion to choose among reasons warranted by the law as grounds for the judicial decision."”.A judgment is considered correct, according to conventionalism, when the justification for the application of a legal rule to a set of facts can be harmonized with the purpose that the rule is suppose to serve and with the greater body of legal Standards recognized as authoritative by the members of the legal community.752 Objectivity in law, then, signifies that a particular judicial interpretation can be measured against 75°See supra text accompanying notes 633-96. 731See supra text accompanying note 81. 752See supra text accompanying notes 87-88. 189 a set of norms or principles that transcend the particular vantage point of the jurist offering the interpretation. The problem with the conventionalist approach is that within free speech law in general and within the O’Brien rule in particular contrasting and conflicting sets of norms exist. As this study shows, there is support for two different interpretations of the O’Brien’s standard purpose in First Amendment law. On the one hand, the First Amendment has been viewed as mandating that government must justify every abridgment of speech, even those abridgments that occur as a result of a nonspeech conduct-based regulation.753 Under this view, the purpose of the O’Brien standard is to elevate the scrutiny so-called content- neutral government regulations receive. O’Brien, then, provides a heightened degree of First Amendment protection against government actions that are not intended to suppress speech but that nonetheless incidentally abridge expressive activity. Courts applying the O'Brien rule under this interpretation require the government to prove its abridgment was in no way tied to the content of speech and that other means less restrictive of free Speech activities could not achieve government's ultimate purpose for the 753See supra text accompanying notes 537-44, 711-14. 190 regulationf“ Under this interpretation, a regulation is regarded as content-neutral if it "plainly [does] not abridge free speech on its face,"755 and "both [the] government interest and operation""” of the statute are limited to the nonspeech element of the conduct restricted by the regulation. Regulations, such as the must-carry rules, which single out a particular speaker or category of speech for differential treatment, fall outside of O’Brien’s content-neutral requirement under such an interpretation, because "content" is defined broadly to include viewpoint-, subject-, topic-, category— and speaker-based restrictions.757 Evidence from this study also indicates that the First Amendment has been interpreted as tolerating greater government interference with expressive activity than with regulations that directly restrict speech based on its viewpoint.758 O’Brien, perceived in this light, provides a means to adjudicate so-called content-neutral restrictions that constitute an incidental or slight abridgment of 75‘See supra text accompanying notes 597-701- ”’O’Brien, 391 U.S. at 375. 756Id. at 381. 7”See supra text accompanying notes $79-89- 7"See supra text accompanying notes 545-56, 632-88. 191 speech.759 Since abridgements are slight and the First Amendment tolerates greater interference with speech restraints that can be defined as content-neutral, O’Brien provides a lower degree of scrutiny than would otherwise apply to more direct forms of government suppression of expression. Under this interpretation, courts are more apt to defer to the judgment of government and apply the O’Brien rule in a relaxed fashion that allows regulations that are not completely unrelated to the suppression of free expression to be adjudicated under the O’Brien standard.“° The legal reasoning employed by jurists using this interpretation permits regulations that single out a particular speaker or category of speech for differential treatment to be adjudicated as a content-neutral statute provided that government’s justification for the restriction had nothing to do the viewpoint of speech targeted by the regulation."51 This line of reasoning allows regulations that target specific types of speech to be analyzed as content-neutral when certain preconditions are met and the justifications for the speech restriction are ’“See supra text accompanying notes 692-96. 7“’See supra text accompanying notes 724-42. 7“See supra text accompanying notes 637-60. aimed at some secondary effect that on its face does not target the speech restricted."52 This approach was followed in the Turner decisions and provided the reasoning needed to adjudicate the must-carry rules at the intermediate scrutiny level. The Court used the fact that the must-carry provisions could be justified as a viewpoint-neutral economic regulation and that the bottleneck status of the cable system constituted a "special" precondition in order to overcome past precedent that indicated that strict scrutiny should apply to speaker-based or category-based speech restrictions.763 The fact that these contrasting sets of interpretations are traceable in part to differing views regarding the foundational principles that underlie the free speech Clause presents a problem for the conventionalists. According to conventionalism, constitutional interpretation should conform to the binding principles upon which the constitutional guarantee rests. Principles are binding, according to this theory, because they have acquired considerable authoritative support in a line of judgments."“ However, the problem with the 762See supra text accompanying notes 637-60. 7”See supra text accompanying notes 637-60. 7“See supra text accompanying notes 112-14. 193 conventionalist approach is that it assumes that these principles are discoverable in a manner that renders uniform support among the judiciary. The findings of this study show that among the judiciary differing interpretations exists regarding the foundational principles upon which freedom of speech rests. And it is these interpretations that seem to guide judicial thought. The central problem with law is that at its most basic level it is nothing more than words. Selective interpretation and application of these words form judicial opinions that reflect the author’s values and ideas regarding the foundational principles upon which the legal standards and ultimately the constitution itself rests. Conventionalists maintain that the fact that justices disagree on the selection and application of rules and other legal standards is nothing more than a mere difference of interpretation. The best interpretation, conventionalists contend, is one that ensures coherence of purpose among various laws bearing on the same subject. The conventionalist approach is problematic for cases that involve a new communication technology or for one in which no body of precedent exists. The Turner case is such a case. While a body of law exists bearing on both the print industry and the broadcast 194 industry, before the Turner decisions, the U.S. Supreme Court had not approached the question of what First Amendment standard should apply to the cable industry. Although conventionalist theory dictates that the development of new rules must conform to authoritative principles, when courts are dealing with new areas of law, authoritative support will differ depending on the analogy use, the definitions applied and the assumptions the jurists brings to the case. In the area of mass communication law, in particular, no coherence of purpose exists among the legal standards governing the different media. The print industry operates under the marketplace of ideas theory, in which government interference with the print press is presumptively unconstitutional. Broadcast, on the other hand, operates from a marketplace failure or revisionist theory, in which government may regulate broadcast speech as long as the regulation serves the public interest. In cases involving new communication media, judicial discretion, therefore, is extended, as law is increasingly indeterminate. When law is indeterminate, the legal reasoning used by a court may, as it did in the Turner I opinion, conform to the legal analysis put forth by a self-interest group. In Turner I, the U.S. Supreme Court modeled its argument 195 regarding the question of whether the must-carry rules trigger Strict scrutiny review on a two-pronged analysis put forth by the National Association of Broadcasters.“55 The first prong of this analysis rests on a narrow definition of "content." The NAB effectively argued that the must- carry provisions were content-neutral and thus reviewable under the O’Brien standard because the legislation did not restrict editorial control or discriminate among speakers and categories of speech based upon the viewpoints expressed by the cable operator or the broadcast station.766 Moreover, the legislation itself could be justified by a non-speeCh-related purpose.767 Government’s purpose, the NAB said, was to preserve competition in the television programming market."58 The fact that Congress described local broadcasting as "an important source of local news and public affairs programming,""” the NAB and the Court said, reflected nothing more than the "value" of free broadcast television and did not raise content-based concerns."° 7uSee supra text accompanying notes 478-505. 7“See supra text accompanying notes 478-505. 767See supra text accompanying notes 478-502- ’”See supra note 499. See also Turner I, 512 U.S. at 662; Turner II, 520 U.S. at 189. ’“1992 Cable Act 9 2(a)(11), 106 Stat. at 1461. 77"See supra note 501. 196 The NAB and the Court coupled this argument with the idea that whatever special right to strict scrutiny review for the traditional press survived a viewpoint- based/viewpoint-neutral analysis, that that right was supplanted by the bottleneck Characteristic of the cable industryf”71 The fact that cable operators possessed a bottleneck control and had the ability to use this control to "silence the voice" of competing media demonstrated, for the Court and for the NAB, that the cable industry was not analogous to the print industry. According to the NAB and the Court, the bottleneck power possessed by cable operators is largely economic power, and the potential for its abuse, they said, cannot be overlooked or disabled by the First Amendment’s protection for editorial discretion."2 With the U.S. Supreme Court’s acceptance of the NAB’S two-prong argument regarding the constitutionality of the must-carry provisions, the cable industry is now assessed for First Amendment purposes by the bottleneck standard.773 This standard no longer gives the cable industry the upper hand in the economic marketplace. The legal and regulatory 771See supra note 504. 7"See Turner I, 512 U.S. at 656-57; Brief for the National Association of Broadcasters at *11, Turner Broadcasting System v. FCC, 512 U.S. 622 (1994) (NO. 93-44) LEXIS 1993 U.S. Briefs 44. ’“See Turner I, 512 U.S. at 657; Brief for the National Association of Broadcasters at *7-8, Turner Broadcasting System v. FCC, 512 U.S. 622 (1994) (No. 93-44) LEXIS 1993 U.S. Briefs 44. 197 advantages the cable industry possessed before the Turner decisions were handed down were successfully curtailed with the development of the bottleneck standard and that curtailment reflected the values of the broadcast lobby. The evidence of the NAB’S success in furthering its own interests and incorporating within law its own values and ideas conforms to the institutionalist belief that judicial outcomes reflect the values of those who are most able to use government to further their own ends.T" But the correlation between the NAB's arguments and the Court’s opinion may prove nothing more than the NAB and the Court hold similar interpretations of First Amendment law. Institutionalism as a complete theory is, therefore, not supported by the fact that the legal reasoning process that created the bottleneck standard was proffered by the NAB. Institutionalism contends that judicial decisions have no ultimate rationale or foundation but merely reflect the Choices of jurists and the values of those who have prevailed in the process.775 This contention is negated to some degree by the findings of this study that show that the development of the bottleneck standard can be harmonized with a modified reading of the O’Brien 7"See supra text accompanying note 41. 775See supra text accompanying note 150. 198 precedent. The fact that the bottleneck standard conforms to this revisionist reading of O’Brien provides support for the contention that the body of law surrounding the O’Brien standard to some extent constrained the development of the bottleneck standard. This conformity, then, provides some support for the idea that First Amendment law has a foundation or rationale and is not merely reflective of an arbitrary decisionmaking process that encapsulates the values of those who have participated and prevailed. While the findings of this study do not support the idea that the development of law is an entirely arbitrary process, this study does Show that the First Amendment’s ultimate foundation and the constraints First Amendment standards place on the adjudication process depends upon and reflects the analogies used, definitions applied and assumptions employed by the jurist. The interpretation and application of First Amendment standards are the result of a highly discretionary process in which the body of law surrounding a particular legal standard provides only a weak constraint or foundation. Because the body of precedent surrounding a First Amendment standard provides only a weak constraint on judicial discretion, First Amendment standards are shaped and reshaped in the adjudication process. They evolve and develop because at 199 its core First Amendment law is very malleable. As this study shows, the O’Brien standard is a far different standard today than it was upon its inception and than it was within the years immediately following its 7“ It has been selectively redefined on a case- formulation. by—case basis. This redefinition process has invalidated and neutralized the First Amendment principles upon which the standard originally stood, and it has led to differing applications of the O’Brien rule, of which the bottleneck Standard is a part, that have further limited the scope of free speech freedom. Without a strong uniform body of precedent through which to filter and conStrain legal arguments, this study shows that law can be modified to reflect the values of those who have participated and prevailed in the adjudication process. This finding gives rise to the danger that constitutional protection to some extent can be curtailed and expanded to reflect the values of those who participated and prevailed in the adjudication process. This is particularly alarming in light of the institutionalist argument that the assignment of rights, even First Amendment rights, confers a greater economic advantage on the individual or group that secured the right "‘See supra text accompanying notes 509-742- than on those who did not. This view of free speech rights was evidenced in this study by the arguments the broadcast lobby brought before Congress and the Court. The broadcast lobby argued that the First Amendment protection the cable industry secured in prior court decisions gave cable operators an economic advantage over local broadcasters.777 For the broadcast lobby, then, First Amendment protection was viewed as an economic asset in the media marketplace. This view of the First Amendment coupled with the findings of this study regarding the malleability of legal standards and the fact that the development of the bottleneck standard reflected the values of a self-interest group gives rise to the concern that the continued evolution of free speech law will become more reflective of the values of outside groups that have a stake, particularly an economic stake, in development of First Amendment law. This concern is even more troubling for cases for which little precedent exists or those that involve new communication technology. The fact that law is so easily altered and that precedent does not always provide the type of filter screen through which legal arguments can be tested for their correctness makes subsequent decisions, especially those in the area of new communication ’"See supra text accompanying notes 436-51. 201 technology, more dangerous to First Amendment freedoms. As this study shows, subsequent applications of once established free speech standards can yield a new body of law—one that is more tolerable of government intervention and the restriction of expressive freedom. This is evidenced by the evolution of the O’Brien Standard. Presently, the O’Brien standard no longer serves as purely an adjudication tool for cases where "’speech’ and ’nonspeech’ elements are combined in the same course of conduct.”78 and where an important or sufficient governmental interest exists in regulating the nonspeech conduct element.7'79 The speech/nonspeech distinction and the requirement that government restrictions must be aimed solely at the nonspeech element to fall under the O’Brien rule has all but been eliminated as a justification for implementing the O’Brien standard. In its place is the requirement that the regulation in question not discriminate among viewpoints. This "content-neutral" requirement is not violated even when a regulation targets an expressive activity based on the subject matter or category of the speech or the classification of speaker involved. Instead, under the revisionist reading of 7"O'Brien, 391 U.S. at 376. 779Id. O’Brien, a particular category of speech or classification of speaker can be singled out for discriminatory treatment as long as the government’s justification for doing so has nothing to do with the viewpoint of the expression targeted by the regulation.”° The fact that the government’s justification for the regulation must be content-neutral does not mean that the regulation must directly advance that justification. In Turner II, the Court deferred to govenrment’s economic findings concerning the need for the must-carry rules in order to promote competition between the cable operators and local broadcasters. The Court’s use of increased deference for government justifications and findings has effectively decreased the degree of scrutiny restrictions of free speech activities receive. Courts no longer question whether alternative regulatory methods are available that could secure government's interest and at the same time place a lighter burden on freedom of speech. Instead provisions pass the narrowly tailored prong of the O'Brien standard as long as the government interest would be secured more effectively with the restriction than without. This reading of the O’Brien rule’s requirement that the incidental burden on speech must be no greater 7”See supra text accompanying notes 637-60. 203 than essential to further government’s interest”1 has virtually supplanted the finding of law on this point in the O'Brien case. In O’Brien, the Court determined that "no alternative means . . . would more precisely and narrowly assure" the government's interest than the means employed by the statute at issue in the case. This conclusion by the O’Brien Court regarding the application of the narrowly tailored prong stands in marked contrast to recent Court actions that have allowed restrictions on speech even though means less restrictive of expression exist and evidentiary proof of the regulation’s effectiveness is absent. As this evidence shows, the adjudication process allows courts to create new and refashion existing First Amendment standards that provide effectively weaker constitutional protection against government regulations that target free speech activities. And in this sense, a First Amendment standard does not retain its regularity, but instead depends upon and reflects human choice. That choice, however, is not as arbitrary as the institutionalists maintain. It involves, instead, the perpetual reinterpretation of specific sets of words and "10’Brien, 391 U.S. at 377. the continued reapplication of those interpretations to sets of facts. While neither theory offers a complete explanation of the adjudication process, in the end, the appropriate theoretical position is that law is a function of the analogies used, definitions applied and assumptions employed by those who have participated and prevailed in the adjudication process. Law’s indeterminacy arises, then, not because legal standards are not always clear, consistent and complete, but because law is so malleable, as the body of law surrounding a legal standard and the foundational principles upon which it rests provides only a weak constraint against the revision and modification of law. Even in the face of Clear, consistent and complete legal standards, rules can be reinterpreted and reapplied to situations very different from one in which the standard was developed to adjudicate. This study reflects that finding, but is also reflects the more general danger that First Amendment law can be Shaped and reshaped to a large extent by the values of those that have participated and prevailed in the adjudication process. This is particularly dangerous given the economic interest in free speech protection. Viewing freedom of speech as an economic good may lead to increasing calls for regulation of speech 205 activities as economic players jockey to improve their market position. AS economic pressures begin to fall upon First Amendment law, it is important to step outside the normative structure of the legal practice and question the nature and character of legal reasoning and the adjudication process in order to more fully understand how constitutional law truly evolves and develops. This practice, like this scholarship, represents a break with past studies that have examined a legal topic from within law’s normative framework. Scholarly examinations of the Turner decisions and the must-carry issue fall within this tradition as past studies analyzed how the court should rule or how it did rule and how it should have ruled.782 This study attempted to break out of that tradition and question how the bottleneck standard developed and what this development revealed about the adjudication process in general and the evolution and creation of First Amendment Standards in particular. It is hoped this scholarship will contribute to a dialogue not only on the evolution of First Amendment freedoms but also on the culture of law. And that this dialogue will lead to a greater understanding of the "’See supra text accompanying notes 429-30. 206 adjudication process and the impact of that process on the regulation of speech. 207 APPENDIX A Thirteen Mile Road, Inc. v. City of Warren, 626 F. Supp. 803 (E.D. Mich. 1985) (location regulation). Nakatomi Investments, Inc. and AEB Enterprises, Inc. v. City of Schenectady, 949 F. Supp. 988 (N.D. N.Y. 1997) (nude dancing prohibition). DiMa Corp. v. Town of Hallie, 185 F. 3d 823 (7th Cir. 1999) (hours of operation regulation). Schulz v. City of Cumberland, 26 F. Supp. 2d 1128 (W.D. Wis. 1998) (hours of operation and public nudity regulation). Ebel v. City of Corona, 767 F. 2d 635 (9th Cir. 1985) (location regulation) Playtime Theaters, Inc. v. City of Renton, 748 F. 2d 527 (9th Cir. 1984) (location regulation). Colacurcio, Ebert and Fueston v. City of Kent, 163 F. 3d 545 (9th Cir. 1998) (Stage height regulation). J a B Entertainment, Inc. v. City of Jackson, Miss., 152 F. 3d 362 (5th Cir. 1998) (public nudity regulation). Hang On, Inc. v. City of Arlington, 65 F. 3d 1248 (5th Cir. 1995) (contact with customer regulation). LLEH, Inc. v. Wichita County, Tex., 121 F. Supp. 2d 513 (N.D. Tex. 2000) (stage height and contact with customer regulation). Steverson v. City of Vicksburg, Miss., 900 F. Supp. 1 (S.D. Miss. 1994) (Public nudity regulation). T.K.'s Video, Inc. v. Denton County, Tex., 830 F. Supp. 335 (E.D. Tex. 1993) (licensing regulation). Dumas v. City of Dallas, 648 F. Supp. 1061 (N.D. Tex. 1986) (location regulation). SDJ, Inc. v. City of Houston, 636 F. Supp. 1359 (S.D. Tex. 1986) (location regulation). East Brooks Books, Inc. v. City of Memphis, 48 F. 3d 220 (6th Cir. 1995) (location regulation). Harris v. Fitchville Township Trustees, 99 F. Supp. 2d 837 (N.D. Ohio 2000) (location regulation). J.L. Spoons, Inc. v. City of Brunswick, 49 F. Supp. 2d 1032 (E.D. Ohio 1999) (location regulation). Younes Dia v. City of Toledo, 937 F. Supp. 673 (N.D. Ohio 1996) (location regulation). DLS, Inc. v. City of Chattanooga, 894 F. Supp. 1140 (E.D. Tenn. 1995) (licensing, public nudity, and contact with customer regulation). Bamon Corp. v. City of Dayton, 730 F. Supp. 80 (S.D. Ohio 1990) (video viewing booth enclosure regulation). Ellwest Stereo Theater, Inc. v. Bill Boner, Mayor 718 F. Supp. 1553 (M.D. Tenn. 1989) (licensing, public nudity and video viewing booth enclosure regulation). Broadway Books, Inc. v. City of Chattanooga, 642 F. Supp. 486 (E.D. Tenn. 1986) (video viewing booth enclosure regulation). Borrago v. Stansbury, 456 F. Supp. 30 (W.D. Ken. 1978) (licensing regulation). Nortown Theatre, Inc. v. City of Detroit, 373 F. Supp. 363 (E.D. Mich. 1974) (location regulation). Chulchian v. City of Indianapolis, 633 F. 2d 27 (7th Cir. 1980) (licensing regulation). Entertainment Concepts, Inc. III v. Maciejewski, 631 F. 2d 497 (7th Cir. 1980) (licensing regulation). Suburban Video, Inc. v. City of Delafield, 694 F. Supp. 585 (E.D. Wis. 1988) (video viewing booth enclosure regulation). Ambassador Books a Video, Inc. v. City of Little Rock, 20 F. 3d 858 (8th Cir. 1984) (location regulation). Avalon Cinema Corp. v. Reed W. Thompson, 667 F. 2d 659 (8th Cir. 1981) (location regulation). Nightclub Management, Ltd. V. City of Canon Falls, 95 F. Supp. 2d 1027 (Minn. 2000) (licensing and public nudity regulation). 42nd St. Company v. Edward I. Koch, 613 F. Supp. 1416 (S.D. N.Y. 1985) (condemnation and changed use regulation). G a A Books, Inc. v. William J. Stern, 604 F. Supp. 898 (S.D. N.Y. 1985) (condemnation and changed use regulation). Decio D’Angio v. Borough of Nescopeck, 56 F. Supp. 2d 502 (M.D. Pa. 1999) (public nudity regulation). Decio D'Angio v. Borough of Nescopeck, 34 F. Supp. 2d 256 (M.D. Pa. 1999) (public nudity regulation). Francis R. Mitchell v. Commission on Adult Entertainment Establishments, 802 F. Supp. 1112 (Del. 1992) (hours of operation and video viewing booth enclosure regulation). D.C. Restaurant Corp. v. City of Myrtle Beach, 953 F. 2d 140 (4th Cir. 1991) (location regulation). Wall Distributors, Inc. v. City of Newport News, 782 F. 2d 1165 (4th Cir. 1986) (licensing and video viewing booth enclosure regulation). Louis Anthony Bomhower v. City of Virginia Beach, 76 F. Supp. 2d 681 (E.D. Va. 1999) (video viewing booth enclosure regulation). William L. Elam, Jr. v. Belva B. Bolling, 53 F. Supp. 2d 854 (W.D. Va. 1999) (licensing regulation). K. Hope, Inc. v. Onslow County, 911 F. Supp. 948 (E.D. N.C. 1995) (location regulation). 11126 Baltimore Boulevard, Inc. v. Prince George’s County, 684 F. Supp. 884 (D. Md. 1988) (location regulation). Roger Fehlhaber v. Rufus Edmisten, 450 F. Supp. 904 (E.D. N.C. 1978) (location regulation). Artistic Entertainment, Inc. v. City of Warner Robins, 223 F. 3d 1306 (11th Cir. 2000) (licensing regulation). Wise Enterprises, Inc. v. Unified Government of Athens-Clarke County, 217 F. 3d 1360 (11th Cir. 2000) (regulation of public nudity in establishments with liquor license). Sammy’s of Mobile, Ltd. v. City of Mobile, 140 F. 3d 993 (11th Cir. 1998) (regulation of public nudity in establishments with liquor license). International Food & Beverage Systems v. City of Fort Lauderdale, 794 F. 2d 1520 (11th Cir. 1986) (location regulation). Krueger v. City of Pensacola, 759 F. 2d 851 (11th Cir. 1985) (regulation of public nudity in establishments with liquor license). Grand Faloon Tavern, Inc. v. Wicker 670 F. 2d 943 (11th Cir. 1982) (regulation of public nudity in establishments with liquor license). Kim Gatena v. County of Orange, 80 F. Supp. 2d 1331 (M.D. Fla. 1999) (public nudity regulation). Toy Box, Inc. v. Bay County, 989 F. Supp. 1183 (N.D. Fla. 1997) ((regulation of public nudity in establishments with liquor license). JaB Social Club #1, Inc. v. City of Mobile, 966 F. Supp. 1131 (S.D. Ala. 1996) (regulation of public nudity in establishments with liquor license). DLS, Inc. v. City of Chattanooga, 107 F. 3d 403 (6th Cir. 1997) (licensing and contact with customers regulation). Hart Book Stores, Inc. v. Rufus Edmisten, 612 F. 2d 821 (4th Cir. 1979) (location regulation). 11126 Baltimore Boulevard v. 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