WSJ: Cable Ruling may Portend Internet Regulation

[attila <attila@primenet.com>]

WSJ 01 Jul 96

Cable Ruling May Portend Internet Content Restrictions

What looks at first glance like a Supreme Court victory for free
expression in cable television could turn out to be a First Amendment
quagmire encouraging restrictions on the Internet.

That's the view some constitutional experts are taking of a high court
ruling Friday that struck down parts of a 1992 law designed to curb
"indecent" programming on cable channels leased to local groups or set
aside for the public.

"It's a sweeping victory for legitimate First Amendment expression,"
declared Michael Greenberger, one of the attorneys who represented
public-access cable producers who challenged the law. Conservative
advocates on the other side of the case also claimed victory because  
one
part of the law was preserved. "American families fighting to  
shelter young children from cable-television pornography won a major  
battle today as the Supreme Court upheld the right of private cable  
operators to screen pornographic programs," said Cathy Cleaver,  
director of legal studies at the Family Research Council.

But some liberals were less sanguine. The ruling "tastes sweet at  
first," said Prof. Laurence Tribe of Harvard Law School, "but it turns  
out to be a sugar-coated poison pill for the First Amendment." He  
argued that the reasoning in the court's main opinion, written by  
Justice Stephen Breyer, was highly cautious and pragmatic rather than  
sweeping. This approach could be used to permit aggressive regulation  
of the Internet if the government can show that the global computer  
network gives children access to indecent material, meaning material  
that depicts sexual activities or organs in a "patently offensive" way.

The Supreme Court produced six opinions but not one that commanded a  
majority; the vote counts were 6-3 and 5-4 to strike down two of the  
cable restrictions at issue, and 7-2 to uphold a third.

In a separate case last month, a special federal court in Philadelphia  
invalidated key parts of a 1996 law aimed at curbing indecent material  
on the Internet. The Clinton administration last week said it would  
appeal that ruling to the Supreme Court. The Philadelphia court relied  
on ringing First Amendment rhetoric to decry government interference  
with the Internet.

Justice Breyer's opinion on Friday was strikingly different in tone and  
method. He took great pains to underscore the seriousness of the  
government's concern about exposing children to adult programming and
explicitly rejected the sort of categorical legal analysis that looks  
with great skepticism at any restriction on the content of programming.

The trio of provisions at issue in the case were pushed by Republican  
Sen. Jesse Helms of North Carolina as last-minute amendments to a  
broader 1992 cable-regulation bill. They authorized cable-system  
operators to prohibit indecent programming on leased channels and  
public access stations reserved for educational and governmental use.  
If an operator chose to allow indecent programming on leased channels,  
the Helms amendments required the operator to "segregate" such  
programming from other offerings, block it and provide it only to  
customers who requested it in writing.

Supporters of the legislation said they were targeting leased-access  
programs in New York and elsewhere that feature hard-core pornography.  
The Supreme Court case arose from lawsuits filed by community-access
programmers who argued that the law would ban legitimate shows on sex
education, abortion and other topics that could be defined as indecent.  
(In the legal lexicon, indecent material receives some First Amendment
protection, whereas "obscene" material, defined as that which lacks any
social or artistic value, doesn't.)

In Friday's ruling, the high court by a 7-2 vote upheld a provision  
that encourages -- but doesn't require -- cable operators to prohibit  
indecent programming on leased access channels. There is plenty of  
evidence on those channels of pornographic material that lacks social  
merit and should be kept away from children, Justice Breyer said. The  
provision isn't overly broad, he added. Adults seeking racy shows can  
look to the larger commercial cable channels, where they are plentiful.

By a 6-3 vote, however, the court struck down the provision that
requires operators who choose to allow indecent programming to block it  
for all but those viewers who request it in writing. Justice Breyer  
questioned the need to force customers to disclose their viewing  
appetites, and he asserted that other, less intrusive means exist to  
tailor dissemination of adult material if it is to be provided. As  
examples, he pointed to a recently enacted requirement that commercial  
cable operators "scramble" or block stations dedicated to sexual  
material and another that obliges television manufacturers to install  
"V-chips" in televisions that can automatically identify and block  
sexual or violent programming. (The high court didn't rule formally on  
the constitutionality of these devices.)

Finally, by a 5-4 margin, the court struck down a measure that  
encourages cable operators to ban indecent material on public-access  
stations. There isn't much, if any, indecency on these channels, but  
the law threatens to cause censorship of controversial shows on health,
politics and art, Justice Breyer said.

Daniel Brenner, a lawyer with the National Cable Television  
association, said the group was pleased overall with the ruling because  
it left operators "with the ability to protect our customers as to  
leased access. We wish it had done the same for public access."

The Federal Communications Commission, which had defended the Helms
amendments, managed to find something to celebrate as well. The   
decision "reaffirms that the Supreme Court believes that caring about  
what kids see on television is a compelling government interest, and  
there are constitutionally permissible ways for government to act to  
protect kids," said FCC Chairman Reed Hundt. He added that the ruling  
"is also significant because it confirms that the government's  
definition of "indecency" is not unconstitutionally vague."

Only Justices John Paul Stevens and David Souter joined the Breyer  
opinion in full. Justice Sandra Day O'Connor dissented in part.  
Justices Anthony Kennedy and Ruth Bader Ginsburg would have struck down  
all of the challenged law. The court's most conservative wing -- Chief  
Justice William Rehnquist and Justices Antonin Scalia and Clarence  
Thomas -- would have upheld the entire law.

Contractors' Speech

In a pair of other First Amendment cases, the high court ruled 7-2 that  
independent government contractors can't be fired for expressing their  
views on public issues or for supporting the wrong candidate. In cases  
from Illinois and Kansas, the court said that contractors have roughly  
the same free-speech rights as public employees. Justice Scalia, joined  
by Justice Thomas, dissented from both decisions. "Favoritism," he  
wrote, "happens all the time in political life, and no one has ever  
thought that it violated -- of all things -- the First Amendment to the  
Constitution of the United States."  (Wabaunsee County, Kansas vs.  
Umbehr, O'Hare Truck Service Inc. vs. City of Northlake, Ill.)



--
Fuck off, Uncle Sam. Cyberspace is where democracy lives!