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The Time Warner Cable Group announced a policy that programming found to be "indecent" would be made available only to customers who request it in writing. In this memorandum supporting a motion for an injunction, Al Goldstein, the producer of Midnight Blue and other sexually-oriented programs, argues that the cable company is attempting to restrict his First Amendment rights. Joining him in the action are Robin Byrd, host of a show that features strippers, and the Gay Cable Network. EDITOR'S NOTE: The parent company of Time Warner Cable, Time Warner Inc., is a part owner of Court TV.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
AL GOLDSTEIN and MEDIA RANCH, INC.,
Plaintiffs,
-against-
MANHATTAN CABLE TELEVISION, INC.; THE CITY
OF NEW YORK; WILLIAM SQUADRON,
Defendants.
90 Civ. 4750 (LBS)
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
MEMORANDUM OF LAW IN SUPPORT OF MOTION
FOR A PRELIMINARY INJUNCTION AND FOR LEAVE
TO FILE A SECOND AMENDED COMPLAINT
Kenneth P. Norwick
Norwick & Schad
1 Madison Avenue
3Oth Floor
New York, New York 10010
(212) 447-5000
Vlad G. Spitzer
Goldbergh & Spitzer
11 East 44th Street
New York, New York 10017
(212) 681-9101
Arthur N. Eisenberg
New York Civil Liberties Union
Foundation
132 West 43rd Street
New York, New York 10036
(212) 382-0557
Marjorie Heins
American Civil Liberties Union
Foundation
132 West 43rd Street
New York, New York 10036
(212) 944-9800
Counsel for Plaintiffs
TABLE OF CONTENTS
INTRODUCTION
STATEMENT OF THE CASE
The 1984 Cable Act
The Earlier Phase of This Suit
The 1992 Cable Act
The Current Phase of This Suit
ARGUMENT
I. MOVANTS ARE LIKELY TO SUCCEED ON THE MERITS OF THEIR
UNDERLYING CLAIMS, OR AT THE LEAST, RAISE SUFFICIENTLY
SERIOUS CLAIMS GOING TO THE MERITS AS TO CREATE A FAIR BASIS
FOR LITIGATION
A. Time Warner's Scrambling Policy Cannot Be Sustained
Under the Authority of Section 10 of the 1992 Act Because
that Section Violates the First Amendment to the United
States Constitution
1. The content-based discrimination compelled by
Section 10 fails to advance important societal interests in
the least restrictive manner
2. The indecency standard imposed by Section 10 is
unconstitutionally vague
3. Section 10 compels content-based discrimination
against "leased access" programming without satisfying the
procedural First Amendment requirements set forth in
Freedman V. Maryland
4. Section 10 unconstitutionally abridges the right of
individuals to receive constitutionally protected expression
free from stigma and the compelled disclosure of their
identities
S. Section 10 of the 1992 Cable Act deviates
impermissibly from the constitutionally compelled regime
recognized by the 1984 Cable Act
B. Time Warner's Newly Announced Policy Cannot Be
Sustained Under the Authority of Section 10 of the 1992 Act
C. If Time Warner's Policy Does Not Rest upon Section
10 of 1992 Act, it Violates Section 829 of the New York
Executive Law
II. MOVANTS WILL SUFFER IRREPARABLE INJURY IF A PRELIMINARY
INJUNCTION IS NOT GRANTED, AND THE BALANCE OF HARDSHIPS TIPS
DECIDEDLY IN FAVOR OF MAINTAINING THE STATUS QUO PENDING
DISPOSITION OF THE CONSTITUTIONAL AND STATUTORY ISSUES
RAISED BY THIS CASE
III. MOVANT'S MOTION FOR LEAVE TO FILE A SECOND AMENDED
COMPLAINT AND TO ADD PARTIES SHOULD BE GRANTED
A. Motion for Leave to File an Amended Complaint
B. Motion for Leave to Add Parties
CONCLUSION
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
_ _ _ _ _ _ _ _ _ _ _ _ _ _
AL GOLDSTEIN and MEDIA RANCH, INC.,
Plaintiffs,
-against-
MANHATTAN CABLE TELEVISION, INC.;
THE CITY OF NEW YORK; WILLIAM
SQUADRON
Defendants.
90 Civ. 4750 (LBS)
_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _
MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR A
PRELIMINARY INJUNCTION AND FOR LEAVE TO FILE
A SECOND AMENDED COMPLAINT INTRODUCTION
This action was commenced in 1990 by producers of "leased
access" cable television programming in New York City to
challenge the practices of Manhattan Cable Television, Inc.
("MCTV"), a Time Warner subsidiary, that subjected that
programming to pre-screening and pre-censorship by the cable
company. By agreement of the parties and the concurrence of
the Court, that challenge has been held in abeyance pending
developments in Alliance for Community Media v. FCC, 56 F.3d
105 (D.C. Cir. 1995).
On July 17, 1995, MCTV's successor, the Time Warner New
York City Cable Group ("Time Warner"), issued a statement
entitled "Time Warner New York City Cable Group Leased
Access Policy on Indecent and Obscene Programming" that
announced that, "pursuant to Section 10(a) of the Cable
Television Consumer Protection and Competition Act of 1992,"
effective October 1, 1995 it would "scramble" certain
"leased access"[fn 1] programs that it regards as "indecent"
and that it would make such programming available on its
leased access channels only to customers who request such
programming in advance and in writing.
The programming of the original plaintiffs in this suit
will be scrambled by Time Warner under this new policy. In
addition, the programs of several other producers of leased
access programming now cablecast on Time Warner's system
will also be scrambled under the policy. .Several of those
producers now move, along with the original plaintiffs, for
leave to file a Second Amended Complaint, which would add
those producers as plaintiffs and which would add claims
challenging Time Warner's new scrambling policy. All those
producers also now move for a preliminary injunction halting
the implementation of the new policy pending the
determination of these motions.
The programs that will be scrambled present a wide range
of material. Some consist entirely of discussions and
reports on important contemporary and political issues,
including matters of health care as well as matters
addressing sexual themes. For example, movants Gay Cable
Network, Inc. ("GCN") and Lou Maletta produce a program
entitled "Downtime" that is devoted exclusively to the
presentation of jazz music and another program, entitled
"Gay U.S.A.," that consists entirely of news reports and
features addressed primarily to gay and lesbian viewers that
contains no depictions of sexual activity, and no nudity.
Other programming produced by movants include sexually
suggestive adult entertainment which -- despite its possible
offensiveness to some -- remains fully protected by the
First Amendment. Salem Inn Inc. v. Frank, 501 F.2d 18 (2nd
Cir. 1974)), aff'd in large part, Doran v. Salem Inn. Inc.,
422 U.S. 922 (1975); See also Sable Communications. Inc.,
492 U.S. 115, 126 (1989).
Movants contend that such adverse and burdensome
treatment of a particular category of expression, as defined
by Time Warner, clearly violates their free speech rights;
furthermore, movants contend that as a result of that
treatment their programming will not reach the audience to
which it now has access and will suffer a significant
diminution in viewership and in advertising revenue; and
that they will therefore suffer irreparable injury if the
policy is implemented. Movants contend that this new policy
cannot be justified by Section 10 of the Cable Television
Consumer Protection and Competition Act of 1992, codified at
47 U.S.C. Sections 532(h), 532(j) and 558 ("the 1992
Act"),[fn 2] because that statute violates the First and
Fifth Amendments to the United States Constitution and is
therefore unconstitutional. Movants further contend that
even if Section 10 of the 1992 Act is found constitutional,
Time Warner's new policy cannot be sustained under it for
several reasons: first, the policy cannot rest upon the
principal provision of Section 10(a), which, by its terms,
only authorizes a total prohibition of programming that the
cable company "reasonably believes" to be "indecent";
second, the policy cannot rest on Section 10(b) because this
provision is not self-executing and is dependent on the
implementation of FCC regulations, which regulations are
currently stayed by the United States Court of Appeals for
the District of Columbia Circuit; third, the Time Warner
policy also cannot rest on Section 10(b) because the policy
fails to comply with the procedural requirements imposed by
that section and the FCC's resultant regulations.
Movants finally contend that if Time Warner's policy of
scrambling their leased access programs cannot be justified
by Section 10 of the 1992 Cable Act, the policy violates
Section 829 of the New York Executive Law, which prohibits
content-based censorship of leased access programming by
cable companies and which provides that "[n]o cable company
may prohibit or limit any program or class or type of
program presented over a [leased access] channel . . . ."
Also, movants contend that Time Warner's new policy imposes
an "unreasonable" condition on them which the Court should
strike under Section 612(d) of the federal Cable Act, 47
U.S.C. Section 532(d). See generally Media Ranch, supra
n.1.
Movants therefore assert that Time Warner's new
scrambling policy is being undertaken without lawful
authority and in contravention of the United States
Constitution and applicable law. On these legal claims, and
to prevent irreparable injury, movants seek a temporary
restraining order and a preliminary injunction to restrain
Time Warner from implementing its scrambling policy on
October 1, 1995 and to maintain the status quo ante while
the important constitutional and statutory claims raised by
this controversy are considered and resolved.
STATEMENT OF THE CASE The 1984 Cable Act
As cable television became an increasingly important
medium for communication in the 1970s and 1980s, public
officials and others became concerned that -- because of
various technological and practical characteristics of the
medium[fn 3] -- cable companies that were awarded franchises
by municipalities would acquire monopolistic or
near-monopolistic control over television programming within
the geographic regions of their franchises. "Public access"
and "leased access" channels were seen as a modest means by
which expressive opportunities were available on cable
television for voices and sources of programming that cable
operators would not otherwise offer to their subscribers.
Thus, in 1972 New York State enacted an elaborate
statutory framework for the regulation of cable television
that, inter alia, provided for leased and public access
channels and prohibited cable companies from controlling the
content of programming on these channels. New York
Executive Law, Section 829. At the same time, the New York
statutory scheme immunized cable companies from any claim
"for damages arising from any obscene or defamatory
statements . . . occurring during any program when the
[cable] company does not originate or produce such program."
New York Executive Law, Section 830.
In 1984 Congress adopted a similar approach. In enacting
the Cable Communications Policy Act of 1984, Pub. L. No.
98-549, 98 Stat. 2780, codified at 47 U.S.C. Section 521 et
seq. (1984) ("the 1984 Cable Act"), Congress sought to
assure, inter alia, "the widest possible diversity of
information sources and services to the public." 47 U.S.C.
Section 521(4). In Section 612 of the 1984 Cable Act, 47
U.S.C. Section 532, Congress established a detailed means of
creating leased access channels, the purpose of which, as
quoted by this Court in Media Ranch, supra n.1 at 314, was
to "assure that the widest possible diversity of information
sources are made available to the public from cable systems
in a manner consistent with growth and development of cable
systems."
Like the New York statute, the 1984 Cable Act
specifically prohibited cable operators from "exercis[ing]
any editorial control over any video programming provided"
over any access channel, 47 U.S.C. Sections 531(e),
532(c)(2). At the same time, the 1984 Cable Act immunized
cable operators from liability for programming over which
they had no editorial control. 47 U.S.C. Section 558.
Congress specifically recognized that access channels
represented "the video equivalent of the speaker's soapbox
or the electronic parallel to the printed leaflet . . . in
the electronic marketplace of ideas," H.R. Rep. No. 934,
98th Cong., 2d Sess. 30 (1984). These channels have since
served as fora for innovative and frank programming on a
variety of community-based concerns and they have also
provided expressive opportunities for voices who would
otherwise be excluded from the cable system if access were
left exclusively to the editorial discretion and business
judgments of the cable operator.
The 1984 Cable Act also required that all operators make
available "lockboxes" -- l.e., electronic devices "by which
the subscriber can prohibit viewing of a particular cable
service," whether on a premium, access, or regular
commercial channel -- "during periods selected by that
subscriber." 47 U.S.C. Section 544(d)-(2)(A). Congress
found that lockboxes "effectively restrict the availability
of [undesired] programming, particularly with respect to
[programs that may be inappropriate for] child viewers,
without infringing the First Amendment rights of the cable
operator, the cable programmer, or other cable viewers."
H.R. Rep. No. 934, supra, at 70. Indeed, the Federal
Communications Commission ("FCC") found that content-neutral
lockboxes afforded such effective protection that, in 1985,
it repealed its content-based rule that had proscribed
indecent programming on cablechannels, including access
channels. See Implementation of the Provisions of the Cable
Communications Policy Act of 1984, MM Dkt. No. 84-1296, 50
Fed. Reg. 18,637, 18,656 (1985).
The Earlier Phase of This Suit
This case, when originally commenced, rested principally
on the 1984 Cable Act. The original plaintiffs, Al
Goldstein and Media Ranch, Inc., produce a late-night,
sexually-oriented television program entitled "Midnight
Blue" that was cablecast by MCTV on its leased access
Channel 35 in portions of Manhattan. They challenged MCTV's
practice of pre-screening the content of "Midnight Blue"
which, on several occasions, resulted in the refusal to
cablecast portions of "Midnight Blue" on the basis of its
content. Plaintiffs claimed that this content-based
censorship violated Section 612(c)(2) of the 1984 Cable Act,
47 U.S.C. Section 532-(c)(2). Plaintiffs further contended
that MCTV's practice violated the prohibition against
censorship by cable companies set forth in Section 829 of
the New York Executive Law. Finally, plaintiffs asserted
that MCTV's practice violated 3.7.02 of the Franchise
Agreement entered into on June 28, 1990 between MCTV and the
City of New York ("the Franchise"). That provision of the
Franchise states that "[t]he leased [access] channels shall
be administered by the [cable] Company as required by
Section 612 of the Cable Act [47 U.S.C. Section 532]."
Upon these claims, plaintiffs moved for summary judgment
in or about November 1991. Defendants cross-moved for
summary judgment. Both motions were submitted to the Court
in or about February 1992. The 1992 Cable Act While those
motions were sub judice, in October 1992 Congress enacted
the 1992 Cable Act. On the last legislative day before the
Senate approved its version of the bill, two senators
separately added three related floor amendments. With no
committee consideration and limited debate, these amendments
became Section 10 of the 1992 Act. Section 10(a) of the Act
amended Section 612(h) of the 1984 Cable Act in two
respects: first, it added the words "or cable operator" to
the references to "unprotected expression" in that section.
As amended, the first sentence of Section 612(h), 47 U.S.C.
Section 532(h), now reads: Any cable service offered
pursuant to this section shall not be provided, or shall be
provided subject to conditions, if such cable service in the
judgment of the franchising authority or cable operator is
obscene, or is in conflict with community standards in that
it is lewd, lascivious, filthy, or indecent or is otherwise
unprotected by the Constitution of the United States. [New
language is underlined]. Section 10(a) of the 1992 Act also
added a new sentence to Section 612(h) which provided: This
subsection shall permit a cable operator to enforce
prospectively a written and published policy of prohibiting
programing that the cable operator reasonably believes
describes or depicts sexual or excretory activities or
organs in a patently offensive manner as measured by
contemporary community standards. Section 10(b) of the 1992
Act directed the FCC to promulgate regulations "designed to
limit the access of children to indecent programming" on
leased access channels and to mandate that, in circumstances
where the cable company has not elected to ban such
programming, it shall be required "to place on a single
channel all indecent programs, as identified by program
providers" and "to block such single channel unless the
subscriber requests access to such channel in writing."
Section 10(b) of the 1992 Act further directed the FCC to
promulgate regulations "requiring programmers to inform
cable operators if the program would be indecent as defined
by Commission regulations."
Section 10(c) of the 1992 Act was directed at "public
access" channels and required the FCC to develop regulations
"to enable a cable operator of a cable system to prohibit
any programming which contains obscene material, sexually
explicit conduct, or material soliciting or promoting
unlawful conduct."
Finally, Section 10(d) deprived cable operators of one
aspect of the immunity they previously enjoyed under 47
U.S.C. Section 558. It provided that cable companies would
face civil and criminal liability if they fail to prohibit
programming that "involves obscene material."
Notwithstanding that the 1992 Act represented a
comprehensive review and revision of the 1984 Cable Act,
neither Section 10 nor its sparse legislative history
mentioned, much less discussed, lockboxes in any way.
Congress thus made no finding that these parental blocking
devices, which were required by 47 U.S.C. Section
544(d)(2)(A), had somehow become ineffective since the 1984
Cable Act was passed.
In the FCC's informal rulemaking proceedings relating
to the implementation of Section 10, the overwhelming
consensus of those who submitted comments -- including
programmers who provide material that appears on access
channels, viewers who watch access programming, and cable
operators charged with censoring such programs -- was that
Section 10 was inconsistent with the First Amendment.
However, the FCC apparently felt constrained to implement
the 1992 Act, and it complied with the directive in Section
10 and promulgated implementing regulations. See First
Report and Order of the FCC, Implementation of Section 10 of
the Cable Consumer Protection and Competition Act of 1992,
58 Fed.Reg. 7990, 7993 (Feb. 1, 1993), 47 C.F.R. 76.701.[fn
4] See also Second Report and Order of the FCC, 58 Fed.Reg.
19.623, 19.626 (March 25, 1993), codified at 47 C.F.R.
76.702.
Petitions for review challenging the constitutionality of
the FCC's Section 10 regulations were submitted to the
United States Court of Appeals for the District of Columbia
Circuit in or about February 1993. The petitions were
consolidated sub. nom. The Alliance for Community Media et
al. v. FCC and United States of America. On or about April
7, 1993 and May 7, 1993, the D.C. Circuit stayed the
Commission's Section 10 regulations pending disposition of
the petitions. On November 23, 1993, a panel of the D.C.
Circuit declared Section 510(a) and (c) of the 1992 Act
unconstitutional and found Section 10(b) and the FCC's
regulations under it to raise such serious questions as to
require the FCC to reconsider the matter in light of the
unconstitutionality of Section 10(a) and (c). Alliance for
Community Media v. FCC, 10 F.3d 812 (D.C. Cir. 1993). The
full Court subsequently vacated the panel's decision and,
banc, a divided Court upheld Section 10 and the upon
rehearing en Commission's regulations. Alliance for
Community Media v. FCC, 56 F.3d 105 (D.C. Cir. 1995). On
July 10, 1995, the Court of Appeals continued to stay
implementation of the FCC's regulations pending the filing
of certiorari petitions.[fn 5] By operation of law, that
stay will continue in effect until the Supreme Court acts on
the two certiorari petitions that were timely filed with the
Court. See F.R.A.P. Rule 41(b).[fn 6]
The Current Phase of This Suit
By agreement among counsel and with the approval of the
Court, the cross-motions for summary judgment that were
pending prior to the enactment of the 1992 Act were
withdrawn and further litigation under the original
Complaint was held in abeyance pending resolution by the
D.C. Circuit of the constitutional challenge to Section 10
and its regulations. That Court rendered its en banc
decision in Alliance on June 6, 1995.
On or about July 17, 1995, Time Warner announced that,
commencing October 1, 1995, it would scramble the signal of
leased access programming that it considered "indecent."
See "Time Warner New York City Cable Group Leased Access
Policy On Indecent and Obscene Programming."[fn 7] That
policy stated that leased access "programming that is
determined to be indecent" would be scrambled even if such
programming is scheduled for viewing "during late-night and
overnight hours." The policy further announced that
scrambled programming would be unscrambled only if a
subscriber, over the age of 18, requests, in writing, that
the signal be unscrambled and, in such circumstances, the
signal will be unscrambled within 30 days of receiving the
request.
The policy also requires new providers of "leased access"
programming to "certify," inter alia, that the programming
will not be obscene and to state "whether any programming it
intends to offer is indecent ..." However, while Time
Warner's policy requires current providers of leased access
programming to certify that their programs are not obscene,
it only requires such producers "to certify that their
programming does not contain indecent material" if such
programming is to be "exhibited during hours other than the
hours that will be scrambled." The implication of this
provision is that Time Warner intends to scramble all
current programming between certain unspecified hours --
presumably during late-night and early morning hours -- upon
its assumption that all such programming offered during
these hours is necessarily "indecent" under Time Warner's
definition of "indecency."[fn 8]
Under the policy, "[a]ny program provider who (a) refuses
to make the required certification or (b) certifies
incorrectly that its programming exhibited or sought to be
exhibited does not contain indecent or obscene material,
will not be eligible to obtain or retain leased access
channel capacity on the system." Finally, the policy
announced that even if a programmer certifies that its
programming is not indecent, Time Warner "reserves the right
to determine [for itself] whether programming exhibited or
sought to be exhibited is obscene or indecent."
Movants contend that insofar as Time Warner's policy
purports to rest on Section 10 of the 1992 Act, that section
unconstitutionally violates the First Amendment in several
respects. Movants further contend that, even if Section 10
is constitutional, the policy cannot be sustained under its
authority. Finally, movants assert that if the Time Warner
policy cannot rest upon the authority of Section 10 of the
1992 Act, the policy must be invalidated as inconsistent
with Section 829 of the New York Executive Law.
Time Warner's new scrambling policy already has, and will
continue to have unless enjoined, an immediate adverse
impact on movants' ability to reach the widest possible
cable television adult audience as contemplated by Section
Section 612(a) of the federal Cable Act and to attract the
advertising necessary to sustain their programming. For
these reasons, movants seek a preliminary injunction to
maintain the current system in place and to enjoin
implementation of Time Warner's scrambling policy until the
important constitutional and statutory issues raised by this
case are resolved.
The Second Circuit has held that "a party seeking
preliminary injunctive relief must establish: (a)
irreparable injury and (b) either (1) a likelihood of
success on the merits of the underlying claim or (ii)
sufficiently serious questions going to the merits as to
create a far basis for litigation and a balance of hardships
tipping decidedly toward the moving party." Sweeney v.
Bane, 996 F.2d 1384, 1388 (2nd Cir. 1993). As demonstrated
in Point I of the Argument below, movants are likely to
succeed on the merits or, at the very least, movants raise
sufficiently serious questions going to the merits as to
create a fair ground for litigation. In Point II below,
movants demonstrate that without preliminary injunctive
relief, they will suffer irreparable injury and that any
fair evaluation of the balance of hardships strongly
supports the issuance of the requested preliminary
injunction. In Point III, movants demonstrate why their
motion to amend the complaint and to add parties -- a motion
that accompanies the instant motion for a preliminary
injunction -- should be granted.
ARGUMENT
I. MOVANTS ARE LIKELY TO SUCCEED ON THE MERITS OF
THEIR UNDERLYING CLAIMS OR, AT THE LEAST, RAISE SUFFICIENTLY
SERIOUS CLAIMS GOING TO THE MERITS AS TO CREATE A FAIR BASIS
FOR LITIGATION
A. Time Warner's Scrambling Policy Cannot Be Sustained
Under the Authority of Section 10 of the 1992 Act Because
that Section Violates the First Amendment to the United
States Constitution.
Section 10 of the 1992 Act requires cable companies
either to ban leased access programming that the cable
company "reasonably believes" is "indecent" or, pursuant to
regulations to be promulgated by the FCC, to block the
signal of "indecent" programming unless and until a
subscriber requests access to such programming in writing.
So understood, the 1992 Act unquestionably compels cable
companies to take adverse action against leased access
programming on the basis of its content.
Such content-based action cannot be shown to advance
compelling societal interests in the least restrictive
manner and is, therefore, unconstitutional. Moreover, the
"indecency" standard employed by Section 10 -- especially
when compounded by the requirement that programmers
"certify" whether or not their programs are "indecent" -- is
unconstitutionally vague and thus likely to cause
self-censorship by programmers. Additionally, Section 10
compels content-based discrimination of leased access
programming without satisfying the procedural First
Amendment requirements set forth in Freedman v. Maryland,
380 U.S. 51 (1965). Furthermore, 510 unconstitutionally
abridges the rights of individuals to receive
constitutionally protected expression free from stigma and
the compelled disclosure of their identities. Finally,
Section 10 deviates impermissibly from the
constitutionally-driven regime of leased and public access
adopted and confirmed by the 1984 Cable Act. Each of these
claims is explained more fully below.
1. The content-based discrimination compelled by
Section 10 fails to advance important societal interests in
the least restrictive manner.
In Sable Communications v. FCC, 492 U.S. 115 (1989), the
Supreme Court reviewed the constitutionality of a federal
statute that was directed at what has come to be called
"dial-a-porn." The statute prohibited indecent as well as
obscene telephone communications. The Court found that the
statute violated the First Amendment as to indecent but not
as to obscene expression. In so doing, the Court emphasized
that "[s]exual expression which is indecent but not obscene
is protected by the First Amendment" (492 U.S. at 126) and
that the "[g]overnment may . . . regulate the content of
constitutionally protected speech to promote a compelling
interest" only "if it chooses the least restrictive means to
further the articulated interest." Id.
The Sable Court assumed that "there is a compelling
interest in protecting the physical and psychological
well-being of minors." Id. But, the Court concluded that
there was no legislative record indicating that, prior to
the enactment of the statute in question, Congress had ever
seriously considered -- much less rejected -- a variety of
less restrictive alternatives that were readily available
short of an absolute prohibition of indecency. Thus, the
Court observed that "[t]he bill that was enacted . . . was
introduced on the floor; nor was there [any] committee
report on the bill from which the language of the enacted
bill was taken. No Congressman or Senator purported to
present a considered judgment with respect to how often or
to what extent minors could or would circumvent the rules
and have access to dial-a-porn messages." 492 U.S. at 130.
Under the principles articulated in Sable, Section 10
of the 1992 Act must similarly be found unconstitutional.
To the degree that any cable company finds itself compelled
by Section 10 to ban indecent programming completely, such a
total ban would clearly run afoul of the holding of Sable.
But even where, as here, a cable company decides -- pursuant
to Section 10 -- to scramble the signal of certain leased
access programs, such a decision cannot be upheld consistent
with the First Amendment.
The reason for this is that -- even allowing that there
may be a compelling interest in shielding minors from
"indecency" to protect their psychological well-being[fn 9]
-- this interest can be achieved in a way that is far less
restrictive than the scrambling approach contemplated by the
statute. Parental blocking devices already exist -- indeed,
as noted above, were mandated by the 1984 Cable Act, 47
U.S.C. Section 544(d)(2)(A) -- and there is nothing in the
legislative record to suggest that these devices have proved
ineffective in allowing parents to limit the access of young
people to sexually-oriented cable programming. Like the
statute at issue in Sable, Section 10 was introduced at the
last legislative moment on the floor of the Senate.[fn 10]
There was no committee report on the bill from which its
language was taken. No Congressperson or Senator purported
to present a considered judgment with respect to how often
or to what extent the parental blocking devices mandated by
47 U.S.C. Section 544(d)(2)(A) have proved ineffective. As
the Supreme Court recently observed in Turner Broadcasting
System v. FCC, ___ U.S. ___, 129 L.Ed.2d 497, 531 (1994):
"When the government defends a regulation on speech as a
means to redress past harms or prevent anticipated harms, it
must do more than simply "posit the existence of the disease
sought to be cured." [citation omitted]. It must
demonstrate that the recited harms are real, not merely
conjectural, and that the regulation will in fact alleviate
these harms in a direct and material way."
The legislative record with respect to Section 10 fails
utterly in this regard. The conclusion of the Sable Court
pertains here as well: "For all we know from [the
legislative] record," the parental blocking approach created
by the 1984 Cable Act may be "extremely effective, and only
a few of the most enterprising and disobedient young people
would manage to secure access" to inappropriate
leased-access programming. Sable, 492 U.S. at 130.
Nevertheless, in the face of these arguments, the
government in Alliance for Community Media v. FCC defended
against the constitutional challenge to Section 10(a) by
claiming that the statute raises no constitutional issue at
all, because it merely allows cable companies to pursue
"voluntarily" different methods for regulating "indecent"
programming. This argument was initially rejected by a
panel of the D.C. Circuit, which held that Section 10(a) and
Section 10(c) were unconstitutional under the First
Amendment and that Section 10(b), as well as the FCC's
corresponding regulations, posed such serious questions that
the Commission should reconsider the matter. Alliance, 10
F.2d 812 (D.C. Cir. 1993).
As noted above, the panel's decision was reversed by the
Court of Appeals sitting en banc. The en banc decision
recognized that "[i]f decisions of cable operators not to
carry indecent programs on leased or PEG access channels,
decisions Section 10(a) and Section 10(c) permit, were
treated as decisions of the government, the Commission and
the United States would be hard put to defend the
constitutionality of these provisions." Alliance, 56 F.3d
at 113; cert. pending, Nos. 95-124, 95-227 (July 18, 1995;
Aug. 9, 1995). The Alliance Court concluded, however, that
"Sections 10(a) and 10(c) do not command. Cable operators
may carry indecent programs on their access channels, or
they may not." Id. Accordingly, the Alliance Court held
that Section 10(a) "is a federal statute authorizing action
by private cable operators [and] is therefore not itself
sufficient to trigger the First Amendment." Alliance, 56
F.3d at 113.
In addressing Section 10(b) of the 1992 Cable Act, the
en banc decision in Alliance implicitly recognized that this
provision compelled behavior on the part of cable companies
and that, therefore, First Amendment standards must be
satisfied. In this regard, however, the Alliance Court
concluded that Section 10(b) represents the least
restrictive means by which Congress could protect children
against exposure to indecent programming.
The decision of the en banc Alliance Court is flawed in
several respects. First, as Circuit Judge Wald pointed out
in dissent: "Sections 10(a) and (b) are co-dependent parts
of one statutory scheme regulating speech. They present
cable operators with an 'either-or' command: accentuate the
positive by banning indecent 'leased access' programming
under Section 10(a), or eliminate the negative by blocking
it under Section 10(b)." Alliance, 56 F.3d at 131. Judge
Wald demonstrated why, despite the seemingly permissive
language of Section 10(a), the integrated statutory scheme
compels cable companies to take adverse action against
leased access programming on the basis of content. Judge
Wald observed:
"To illustrate the effect of the "may" language of Section
10(a) when used in the context of Section 10(b), we point
out that the operators' options -- and the burden on speech
-- would be no different if the regulations were expressed
in any of the following terms:
1. "an operator must ban, or in the alternative must
block;
2. "an operator may block, or in the alternative must
ban;
3. "an operator may ban, or in the alternative may
block, but these alternatives are to the exclusion of all
others."
All these formulations, linguistically distinct, are
logically and functionally equivalent. Each commands that
the cable operator either ban or block indecent speech.
Yet, the Section 10(a) and (b) option is no different in its
effect. Only empty formalism would elevate Congress' choice
of the nominally permissive "may" language of Section 10(a)
to demonstrate the absence of state action, when Section
10(b) lurks in the shadows ready to pounce."
Id. The district court in Altmann v. Television Signal
Corp., 849 F. Supp. 1335 (N.D. Cal. 1994) reached the same
conclusion, noting that the "explicit purpose" of Section
10(a) and Section 10(c) was "to suppress the broadcast of
indecent materials on access channels" and "significantly
encourage"[fn 11] cable operators to censor. Id. at 1342.
The Altmann court agreed "with the original Alliance
decision" that Section 10 "create[s] a sufficient 'nexus'
to find that the total ban on indecent material on public
and leased access channels authorized by Sections 10(a) and
(c) and their implementing regulations constitute state
action." Id.
Indeed, this conclusion is compelled by Skinner v.
Railway Labor Exec. Ass'n, 489 U.S. 602, 615 (1989), and
Railway Employees Dep't v. Hanson, 351 U.S. 225 (1956), both
ignored by the en banc majority, and both holding that
private decisions authorized or encouraged by federal law
are not immune from constitutional scrutiny, particularly
where, as in Hanson and the present case, the federal
statute preempts state legislation on the subject.
In short, the entire statutory scheme of Section 10 must
be subjected to constitutional scrutiny. And, when so
examined, Section 10(a) is unconstitutional for the reasons
stated by the Supreme Court in Turner; it cannot survive the
"exacting scrutiny" required for laws "that suppress,
disadvantage or impose differential burdens upon speech
because of its content." 114 S.Ct. at 2458-59 (emphasis
added).
The en banc decision of the D.C. Circuit is similarly
flawed in its conclusion that Section 10(b) of the 1992
Cable Act pursues its goal of protecting children in the
least restrictive manner. As Judge Wald pointed out:
". . . nothing in the [legislative or administrative] record
establishes that cable lockboxes -- which cable operators
are required to provide -- are not an effective means of
protecting children from "indecent" programming. Indeed,
the record strongly suggests otherwise . . . . Congress has
found lockboxes to be "effective." See H.R. Rep. 934, 98th
Cong., 2d Sess. 70 (1984) . . . (describing lockboxes as a
"means to effectively restrict the availability of such
[indecent] programming, particularly with respect to child
viewers, without restricting the First Amendment rights of
the cable operator, the cable programmer, or other cable
viewers." The Commission on several occasions has attested
to their efficacy. See, e.g., FCC 85-179, 1985 FCC Lexis
3475, l132 at 112-13 ("Indeed, we believe that the provision
for lockboxes largely disposes of issues involving the
Commission's standards for indecency . . . .") . . . Not
only cable programmers, but cable operators submitted
comments during the rulemaking stating that lockboxes are
effective.
Alliance, 56 F.3d at 140-141.
And, as Judge Wald further observed:
"Because the 1992 Cable Act indecency provisions were
adopted in a series of floor amendments, without benefit of
committee hearings or even substantial floor debate, their
legislative history is exceedingly scant. But nowhere in
that meager history is there a single comment that anyone in
Congress thought cable lockboxes ineffective. See 138 Cong.
Rec. 646 et seq. (daily ed., Jan. 30, 1992) (no mention of
lockboxes in Senate floor debate).
Alliance, 56 F.3d at 141.
There is further evidence that the "scrambling"
approach at issue here is not the least restrictive means to
accomplish its asserted goal. Thus, although Time Warner
has -- for the stated purpose of shielding minors from
"indecent" programming -- undertaken to scramble movants'
assertedly "indecent" programming and make it available only
to subscribers who request access to it in writing thirty
days in advance, Time Warner has conspicuously not imposed
similar restrictions on access to its "indecent"
programming. Indeed, as is set forth in the Joint
Declaration of Al Goldstein, Robin Byrd, and Lou Maletta
submitted herewith, all a viewer need do to obtain access to
Time Warner's "indecent" programming is to make a telephone
call from a subscriber's home -- on the same day, indeed at
the same time -- the programming is offered. The mere
making of that call is all that is required to obtain that
access; Time Warner does not inquire as to the age of the
person ordering the access, much less require that person to
request that access in writing thirty days in advance.
Since it must be presumed that Time Warner is no less
concerned about minors' access to its "indecent" programming
as it is about such access to movants' programming, it must
also be presumed that Time Warner's method of handling
access to its "indecent" programming adequately protects
against any such undesirable access.
In short, the provision of Section 10(b) that compels
cable companies to block or scramble certain "leased access"
channels cannot survive "exacting" constitutional scrutiny.
Given the efficacy of parental blocking devices, Section
10(b) cannot be upheld unless Congress can demonstrate
convincingly that parental blocking mechanisms are
inadequate. As the Supreme Court said in Turner, conjecture
is insufficient on matters such as this. Turner, 129 L.Ed.2d
at 531. But in this case Congress did not even engage in
speculation or conjecture. Congress did not consider the
matter at all.
The constitutional deficiencies of Section 10 cannot be
saved by the Second Circuit's analysis in Dial Information
Services v. Thornburgh, 938 F.2d 1535 (2nd Cir. 1991), cert.
denied, 112 S.Ct. 966 (1992). Dial Information Services
involved a constitutional challenge to a federal statute
that, post-Sable, attempted to limit access by young people
to so-called "dial-a-porn." The post-Sable statute
effectively required companies producing "dial-a-porn"
messages either to engage in billing or collection for such
messages in a manner that was independent of the telephone
companies or to be subject to a requirement, imposed on the
phone companies, that any such messages be provided on a
presubscription basis. In Dial Information Services, the
Second Circuit upheld the constitutionality of the statute.
Dial Information Services is inapposite to the present
controversy for at least four reasons. First, the statute
at issue in Dial Information Services was not nearly as
restrictive as Section 10(b) of the 1992 Cable Act. Second,
as a matter of common experience it is quite evident that it
is far more difficult to limit access by minors to
"dial-a-porn" telephone messages that are available
throughout the day than it is to limit access by young
people to late-night, sexually-oriented cable television
programs. Third, because of technological differences
between telephone systems and cable television systems,
"dial-a-porn" messages could not effectively be blocked
through the use of parental blocking mechanisms whereas
parental blocking mechanisms for cable television function
with technological effectiveness.
The statute that was challenged in Dial Information
Services did not impose a blanket requirement that
"dial-a-porn" messages could only be conveyed to individuals
who had pre-subscribed to the messages. Under that statute,
the pre-subscription requirement was imposed only for
producers of "dial-a-porn" messages who were using telephone
companies to provide billing services and to collect charges
for those producers. Producers of "dial-a-porn" messages
who billed and collected their charges independently
remained free to provide such communication without a
presubscription requirement.
Secondly, but more importantly, it is far more
difficult to limit access by children to "dial-a-porn"
messages than it is to limit access to inappropriate
television programs. Judge Wald made this point precisely
in Alliance:
"[T]elephones, including pay phones, are ubiquitous and
readily accessible to children outside the home [citations
omitted]. Although cable television is widely available, it
is not nearly as accessible to unsupervised children outside
the home as is telephone service. Pay phones in particular
provide individual, unsupervised, private access to indecent
communications on street corners and in shopping malls,
movie theatres, restaurants, gas stations, parks and
playgrounds."
Alliance, 56 F.3d at 141-142 (Wald, J. dissenting).
By contrast, sexually-oriented "leased access" programs
are provided after ten o'clock at night when most children
are asleep or, at least, at home and under the supervision
of a parent or other adult. Consequently, the opportunities
for children to view sexually-oriented leased access
programming in an unsupervised setting outside the home are
virtually non-existent.
Thirdly, there are technological differences between
telephone systems and cable television systems that reduce
dramatically the applicability of Dial Information Services
to the present controversy. In considering the problem of
access by children to "dial-a-porn" messages, the FCC found
that "in the telephone context voluntary blocking was
ineffective because telephone companies were able to block
only local 'dial-a-porn' providers, and for technological
reasons were incapable of blocking long-distance access to
dial-a-porn services . . . . Consequently, voluntary
telephone blocking does not prevent minors from accessing
dial-a-porn services by long distance calls." Alliance, 56
F.3d at 141 (Wald, J. dissenting) (emphasis in original).
Again, by contrast, parental blocking of cable programming
is, from a technological standpoint, entirely effective.
The lockbox system "can block any channel received in the
home." Id.
For all these reasons, Section 10(b) of the 1992 Cable
Act cannot be found to be the "least restrictive means" to
prevent children from gaining access to sexually-oriented
"leased access" programming without parental approval.
There is no evidence that parental blocking devices, as
mandated by the 1984 Cable Act, inadequately serve this
interest. Section 10(b) is, therefore, unconstitutional and
Time Warner s policy of scrambling sexually-oriented leased
access programming cannot be sustained under the authority
of this provision.
2. The indecency standard imposed by Section 10 is
unconstitutionally vague.
The Due Process Clause of the Fifth Amendment requires
that statutes and regulations not be so vague that affected
parties are uncertain as to what actions are proscribed and
not so subjective that government officials have unbridled
discretion in their enforcement decisions. Grayned v. City
of Rockford, 408 U.S. 104, 108-09 (1972); Connally v.
General Construction Co., 269 U.S. 385, 391 (1926). This
constitutional condemnation of vague laws applies with
special force when First Amendment rights are at stake.
Village of Hoffman Estates v. Flipside Hoffman Estates.
Inc., 455 U.S. 489, 499 (1982). Significantly, the new
sentence that was added to 47 U.S.C. Section 532(h) by
Section 10(a) does not purport to refer to or define the
term "indecent," which term Congress directed in Section
10(b) be defined by the FCC. As drafted, that new sentence
is impermissibly vague not only because it turns on such
indefinable and subjective concepts as "patent
offensiveness" and "contemporary community standards," but
also because it enables cable operators to ban, and requires
access programmers to anticipate, what operators will
"reasonably believe" is within the statute's purview.
The statute's reference to "community standards" for
what is "patently offensive" is an entirely subjective
notion that provides no guidance to programmers -- and will
undoubtedly lead to self-censorship given the penalties for
guessing wrong. Nor do these phrases limit the whim or
caprice of cable operators. The inevitable result of such
imprecise terms is that arbitrary enforcement will be
widespread; cable operators will censor, and programmers
will self-censor, simply because their programming may have
some sexual content or vulgar words. See Grayned, 408 U.S.
at 108-09.[fn 12]
Congress's use of the phrase "reasonably believes"
substantially augments Section 10's problems, because what
cable operators "reasonably believe" is proscribable by the
new sentence in 47 U.S.C. Section 532(h) is a larger and
even vaguer category than what actually is so proscribable,
resulting in both the banning of speech that is not within
the purview of the statute and in increased arbitrariness
and self-censorship. See Bella Lewitzky Dance Found. v.
Frohnmayer, 754 F. Supp. 774, 781-82 (C.D. Cal. 1991)
(requirement that artists certify that none of their works
may be considered obscene in the NEA's judgment is void for
vagueness); Baggett v. Bullitt, 377 U.S. 360, 371 (1964)
("[t]he uncertain meanings of . . . oaths require the
oath-taker 'steer far wider of the unlawfal zone' than if
the boundaries were clearly marked"); Keyishian v. Board of
Regents, 385 U.S. 589, 603 (1967) (vagueness of loyalty oath
legislation "stifle[s] . free play of the spirit" in
violation of First Amendment).
Obscenity jurisprudence does not redeem the use of
"community standards" in the definition of indecency.
Obscenity deals only with "hard-core" pornography, Miller v.
California, 413 U.S. 15, 27 (1973), which Justice Stewart
memorably described with the phrase: "I know it when I see
it," Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) (Stewart,
J., concurring). By contrast, "indecency" encompasses a
broad and undefined category that extends beyond even
"soft-core" pornography,[fn 13] and no member of the Supreme
Court has ever suggested it is recognizable on sight.
Additionally, the consideration of "serious value" in
obscenity jurisprudence, i.e., literary, artistic,
political, and scientific merit, allows speakers to make
predictive judgments and courts to develop, over time,
substantive guidance for both speakers and censors. See
Miller v. California, 413 U.S. at 24. Section 10's
definition allows for no such safe prediction or guidance as
to what cable operators will "reasonably believe" they can
censor. This case presents an excellent example of the
problem, as Time Warner has announced its intention to
scramble such programs as "Gay U.S.A.," which does not
present sexual material.
Clearly, the overall result of Section 10's multiple
vagueness problems is harmful self-censorship by artists and
other programmers and unbridled discretion vested in the FCC
and its cable operator delegates to censor where programmers
do not self-censor. The Supreme Court has repeatedly
condemned vague laws for precisely these reasons. E.g.,
City of Lakewood v. Plain Dealer Publishing Co., 486 U.S.
750, 757-58 (1988); Cramp v. Board of Public Instruction,
368 U.S. 278, 283-84 (1961).
3. Section 10 compels content-based discrimination
against "leased access" programming without satisfying the
procedural First Amendment requirements set forth in
Freedman v. Maryland.
In Freedman v. Maryland, 380 U.S. 51 (1965), the Supreme
Court held that where an administrative agency is reviewing
expression to decide, based on its content, whether such
expression is to be curtailed, such administrative
decision-making must "take[] place under procedural
safeguards designed to obviate the dangers of a censorship
system." Freedman, 380 U.S. at 58. At a minimum, these
safeguards must provide for prompt judicial review initiated
by the censor, with the burden of proof on the censor.
Freedman, 380 U.S. at 58-59.
Although Section 10 of the 1992 Cable Act imposes a
regime of censorship, it does so without any mechanism
designed to comply with the procedural requirements of
Freedman. This deficiency is particularly significant
where, as here, Time Warner undertakes to scramble programs
based on its own assessment that such programs are indecent.
For it is inevitable that disputes will arise between
program providers and cable operators as to whether a
particular program is or is not indecent.
The FCC, in issuing its First Report under Section 10,
was able to sidestep the requirements of Freedman by noting
that, under Section 10(b), no scrambling of a program would
take place unless the program producer certifies that the
program is indecent. Upon this basis, the FCC concluded:
"We do not envision disputes arising from the content of
programs on the leased access channel except where a
program, not identified by a program provider as indecent,
is carried on a nonblocked leased channel, and is alleged to
be indecent." (First Report, Paragraph 75). Under such
circumstances, the FCC indicated that it would "entertain
special relief petitions under Section 76.7 of our rules."
Id.
But here, Time Warner apparently intends to scramble
any program that in its judgment is "indecent," without
regard to whether the program's producer regards the program
as "indecent." Indeed, Time Warner appears to have decided
in advance that all leased access programming now cablecast
after a certain hour is "indecent," regardless of the actual
content of the individual show. These policies will almost
certainly result in disputes about particular programs. Yet
the Time Warner policy includes no procedure for an
expeditious judicial hearing in compliance with Freedman.
[fn 14]
In sum, the failure of Section 10 to include a
mechanism for prompt judicial review in which cable
companies bear the burden of proving the material in
question indecent renders Section 10 unconstitutional on
this account as well.
4. Section 10 unconstitutionally abridges the right
of individuals to receive constitutionally protected
expression free from stigma and the compelled disclosure of
their identities.
This past term, in McIntyre v. Ohio Election Commission,
_ U.S. _, 131 L.Ed.2d (1995), the Supreme Court reaffirmed
that individuals must presumptively be permitted to engage
in First Amendment activity without disclosing their
identities. At issue in McIntyre was an Ohio statute that
prohibited the distribution of anonymous campaign
literature. In holding the provision unconstitutional, the
Court noted that the statute restricted "core political
speech" and could therefore be upheld only if it were
"narrowly tailored to serve an overriding state interest."
McIntyre, 131 L.Ed.2d at 440. At bottom, the Court
concluded that the statute could not survive such scrutiny
and must be invalidated just as the Court had previously
invalidated a similar Los Angeles ordinance thirty-five
years earlier. Talley v. California, 362 U.S. 60 (1960).
McIntyre involved the constitutional right to engage in
political speech. But the Supreme Court has long held that
the First Amendment protects not merely the right to speak
but the right to receive information. Board of Education v.
Pico, 457 U.S. 853, 867 (1982) (right to receive information
and ideas "is an inherent corollary of the rights of free
speech and press that are explicitly guaranteed by the
Constitution . . ."); Lamont v. Postmaster General, 381 U.S.
301, 308 (1965) (Brennan, J., concurring: "The dissemination
of ideas can accomplish nothing if otherwise willing
addressees are not free to receive and consider them. It
would be a barren marketplace of ideas that had only sellers
and no buyers").
Moreover, although the McIntyre Court applied "exacting
scrutiny" to the Ohio statute because the law affected "core
political speech," the Court has made it clear on many
occasions that "exacting scrutiny" will be applied, as well,
even for non-political and artistic expression when
government regulates such expression on the basis of content
(although here much of movants' programming indisputably
involves core political speech). Simon & Schuster v. Crime
Victims Board, ___ U.S. ___ 116 L.Ed.2d 476, 488 (1991)
(exacting scrutiny applied to state law that imposed
content-based limitations upon the ability of criminals to
write a book or sell television or movie rights to their
crime stores); see also Southeastern Promotions v. Conrad,
420 U.S. 546, 558 ("no reason to hold theatre [and
theatrical performances] subject to a drastically different
[First Amendment] standard" from that applied to other forms
of expression).
In addition, a principal concern of both McIntyre and
Lamon applies with equal force here. In McIntyre, the Court
noted that an individual's desire for "anonymity may be
motivated by fear of economic or official retaliation, by
concern about social ostracism, or merely by a desire to
preserve as much of one's privacy as possible," McIntyre,
131 L.Ed.2d at 436. In Lamont, the Court had no doubt that
an "affirmative obligation" to request mail that the
government has stigmatized as "subversive" was an
unconstitutional abridgement of the First Amendment and
would have "a deterrent effect, especially as respects those
who have sensitive positions." Lamont, 381 U.S. at 307.
The fear of social ostracism and the desire to preserve
privacy are equally implicated by the procedure mandated by
Section 10(b) of the 1992 Act. As Judge Wald pointed out in
Alliance, the requirement that individuals affirmatively
request cable programming that has been labeled as
"indecent" "clearly implies governmental disapproval of the
speech in question, and it is beyond cavil that some stigma
attaches to a written request to receive it." Alliance, 56
F.3d at 135 (Wald, J., dissenting). And even if, contrary to
common sense, the government cannot be said to be
stigmatizing indecent programming, it remains clear that
social mores and sensibilities condemn much of the material
targeted by Section 10. Thus, as Judge Wald correctly
observed, "[m]any viewers . . . may not want a steady stream
of 'indecent' speech, and probably do not want to be
perceived (even by their cable operator, much less anyone
who might later acquire such information by subpoena or
otherwise) as the kind of people who do." Alliance, 56 F.3d
at 136 (Wald, J., dissenting).
For these reasons, the requirement of Section 10(b) that
subscribers affirmatively and in writing request "indecent"
programming must be understood to impose a substantial
burden on the receipt of information and communication.
This burden can be upheld only if necessary to achieve an
overriding interest. As discussed above, this requirement
is entirely unnecessary, since there is no evidence that the
lockbox mechanism inadequately protects against
inappropriate access by minors to the material that is the
subject of Section 10.
5. Section 10 to the 1992 Cable Act deviates
impermissibly from the constitutionally compelled regime
recognized by the 1984 Cable Act.
Cable companies perform two discrete functions. First,
they serve as conduits for the transmission of cable
signals. Second, in deciding what programming will be
transmitted over their systems, they serve as editors and
producers of cable programming. When cable companies decide
to provide such channels as HBO or Showtime or ESPN, they
perform an editorial function. But when cable companies
provide public and leased access channels -- and do so not
voluntarily but because they are compelled to do so by law
or by virtue of a franchise agreement -- the companies are
acting simply as conduits for the speech of others.
This conception of the separate functions of cable
companies is a fundamental predicate of the 1984 Cable Act.
Under that Act, a cable television franchise was regarded as
embracing a bundle of channels. So understood, when a
municipal franchising authority granted a franchise to a
cable company in exchange for allowing the company to dig up
the streets or to string cables across public rights-of-way,
the municipality commonly reserved several of the company's
channels as electronic soapboxes for public and leased
access cablecasting. These public and leased access
channels never became the property of the cable company in
the sense that the company never acquired editorial dominion
over them. As to these channels, the cable companies were
asked by the municipalities to function simply as conduits.
See, Midwest Video v. FCC, 571 F.2d 1025, 1051 (8th Cir.
1978). In this regard, the access channels were reserved as
public fora -- although perhaps more in a "metaphysical
sense than in a spatial or geographic sense." Rosenberger
v. Rectors and Visitors of University of Virginia, ___ U.S.
___, 132 L.Ed.2d 700, 716 (1995).
In Alliance, Circuit Judge Randolph, writing for the en
banc Court, argued that the First Amendment did not compel
this conception regarding the dual functions of cable
companies. According to the Alliance majority, the First
Amendment did not require the 1984 Cable Act to be designed
the way it was, "and it certainly did not compel prohibiting
cable operators from exercising any editorial control over
access programming." Alliance, 56 F.3d at 114-115. Upon
this premise, Judge Randolph concluded that Congress was
entirely free from constitutional constraint in altering the
1984 scheme.[fn 15]
On this issue Judge Randolph is quite wrong. The
conception recognized by Section 612 of the 1984 Cable Act
was constitutionally compelled. Without that conception,
the entire regime of leased and public access channels would
be constitutionally suspect, if not invalid. If leased and
public access channels were regarded ab initio as property
of private cable companies, it follows that neither the
federal government nor state or local governments could
compel the companies to cablecast any programming that they,
in the exercise of their editorial discretion, did not wish
to transmit. It is axiomatic that the First Amendment right
to speak embraces, as well, the right not to speak, and
government cannot compel private entities to convey messages
with which they disagree. Miami Herald Publishing Co. v.
Tornillo, 418 U.S. 241 (1965); Wooley v. Maynard, 430 U.S.
705 (1977).
It therefore follows that the only constitutionally
acceptable regime under which public and leased access may
operate is the one recognized by the 1984 Cable Act. Under
that regime, cable companies have no editorial dominion over
public and leased access channels. They have neither
control over nor responsibility for the content of
programming on these channels, and they must be immune from
liability flowing from such content. These access channels
are simply not the property of the cable companies retained
for use by the public.
Section 10 deviates markedly and impermissibly from the
constitutionally-driven conception of public and leased
access channels contemplated by the 1984 Act.
B. Time Warner's Newly Announced Policy Cannot Be
Sustained Under the Authority of Section 10 of the 1992 Act.
As noted above, the 1992 Act compels cable companies
either to ban indecent programming or to block the signal of
such programming. If a cable company chooses to ban such
programming, it may do so under Section 10(a) of the statute
if, after promulgating a written and published policy
prohibiting indecency, it reasonably believes that certain
programming contains indecent material.
Thus, under the fundamental structure of Section 10, if a
cable company chooses to impose a total prohibition of
indecent programming, it must do so under the procedures set
forth in Section 10(a). If, however, a cable company elects
not to ban such programming but instead to block or scramble
the signal, it must do so under the Section 10(b) procedure.
This is the only sensible reading of the statute. For if
Congress had intended to allow cable companies either to ban
or to block indecent programming by using the procedures and
standards set forth in Section 10(a), Section 10(b) would
have been utterly unnecessary and its direction to the FCC
to develop procedures for scrambling programs utterly
superfluous. It follows therefore that Time Warner --
having elected to scramble and not to ban "indecent"
programming -- must employ the procedures mandated by
Section 10(b) of the 1992 enactment and cannot rely upon
Section 10(a) procedures.
Nor can Time Warner's scrambling policy rest on the first
sentence of 47 U.S.C. Section 532(h), which now provides
that leased access programming "shall not be provided, or
shall be provided subject to conditions, if such cable
service in the judgment of the franchising authority or
cable operator is obscene, or is in conflict with community
standards in that it is lewd, lascivious, filthy, or
indecent or is otherwise unprotected by the Constitution of
the United States~." This provision provides no authority
for the Time Warner scrambling policy for two reasons.
First, the above-quoted language -- which appeared in the
1984 Act -- can only be interpreted as a prohibition against
expression unprotected by the Constitution, to wit,
"obscenity." Despite the use of the words "lewd,
lascivious, filthy or indecent," this language, like
identical language in analogous statutes, only reaches
constitutionally-unprotected obscenity; any other result
would violate the First Amendment. See United States v. 12
200-Foot Reels of Film, 413 U.S. 123, 130 n.7 (1973);
Hamling v. United States, 418 U.S. 87, 112-13 (1974).
This first sentence of 47 U.S.C. Section 532(h) provides
no support for Time Warner for a second reason. Even if it
could be read as imposing a requirement on cable companies
either to ban or to impose other "conditions" upon indecent
programming, the first sentence of 532(h) does not purport
to identify the procedures that should be employed in
banning or in imposing other such conditions. Those
procedures are left to other provisions of the 1992 Act.
And, as discussed above, if the cable company opts for a
total prohibition, it must use the procedures set forth in
Section 10(a), now codified in the second sentence of 47
U.S.C. 532(h). If the cable company chooses the scrambling
option, it must comply with the procedures set forth in
Section 10(b) and the FCC's implementing regulations.
Section 10(b) of the statute is not self-executing. This
statutory provision depends entirely on the implementation
of regulations by the FCC, and, as noted, those regulations
have been stayed pending disposition of certiorari petitions
in the Alliance litigation. See, F.R.A.P. Rule 41(b).
Moreover, even if the FCC regulations had not been stayed
and even if Section 10(b) were currently in effect, that
provision provides no authority for Time Warner's scrambling
policy because the policy fails to comply with the
procedures set forth in Section 10(b). Under Section 10(b),
the identification of programs that qualify as "indecent" is
left to the programs' producers. Thus, Section 10(b)
provides in part that "the Commission shall promulgate
regulations . . . requiring cable operators to place on a
single channel all indecent programs, as identified by
program providers . . . [and] requiring cable operators to
block such single channel unless the subscriber requests
access to such channel in writing." 47 U.S.C. S 532(j)(1)
(emphasis supplied).
Nowhere in Section 10(b) or its regulations is there any
provision authorizing cable companies to identify programs
as "indecent" and then to scramble those programs. Yet
under Time Warner's policy it alone -- and not the program's
producer -- will have the right to identify programs as
"indecent" and then scramble those programs.
Further, nowhere does Section 10(b) authorize a cable
company to impose sanctions on a program provider for
failure properly to identify whether a particular program is
or is not "indecent." Nevertheless, Time Warner's policy
arrogates such authority to the cable company.
For all of these reasons, Time Warner's policy cannot be
said to rest upon Section 10 of the 1992 Act. By its terms,
Section 10(a) sets forth the procedures to be employed by a
cable company that chooses to impose a total prohibition
against indecent programming. Section 10(b) directs the FCC
to develop different procedures for companies that seek to
scramble such programming. Time Warner has adopted a
"scrambling" policy and, therefore, cannot use the
procedures set forth in Section 10(a). Time Warner can
derive no authority from Section 10(b) because this
provision has effectively been stayed and because the Time
Warner policy fails to adhere to the procedures mandated by
Section 10(b). Thus, even if, arguendo, Section 10 of the
1992 Cable Act were found to be constitutional, this statute
cannot serve as authority for Time Warner's scrambling
policy.
C. If Time Warner's Policy Does Not Rest upon Section
10 Of 1992 Act, it Violates Section 829 of the New York
Executive Law.
New York Executive Law Section 829 is entitled
"Censorship Prohibited." It provides that "[n]o cable
television company may prohibit or limit any program or
class or type of program presented over a leased channel or
any channel made available for public access or educational
purposes." If Time Warner's policy of scrambling movants'
leased access programs cannot rest on the authority of
Section 10 -- either because Section 10 is unconstitutional
or because the Section 10(b) regulations have been stayed or
because the policy fails to comply with the procedures
mandated by Section 10 -- the policy violates Section 829 of
the New York Executive Law. For there can be little doubt
that the policy seeks to limit and discriminate against
certain leased access programming on the basis of its
content.
Moreover, Time Warner cannot defend its scrambling policy
in the face of the claim that it violates Section 829 by
asserting that this provision of state law has been
pre-empted by federal law. Section 636(b) of the federal
Cable Act, 47 U.S.C. Section 556(b), provides that
"[n]othing in this subchapter shall be construed to restrict
a State from exercising jurisdiction with regard to cable
services consistent with this subchapter." Consequently, if
Section 10 is unconstitutional or has been stayed or is
inapplicable because Time Warner has failed to comply with
its narrow procedural requirements, Section 829 of the New
York Executive Law remains in full force and effect and is
not pre-empted by federal law. Under such circumstances,
Time Warner's policy is inconsistent with and violates the
New York Executive Law.
Finally, if Section 10 is found unconstitutional, Time
Warner's policy must be found to violate 47 U.S.C. Section
532(c)(2), which bars cable operators from exerting any
editorial control over leased access programming. As noted,
Section 10 of the 1992 Act did not amend 532(c)(2) --
although it clearly limited its proscriptive reach. But if
Section 10 is voided as unconstitutional, the full force and
effect of 47 U.S.C. Section 532(c)(2) will be restored.
Under such circumstances the Time Warner policy would
violate not only New York Executive Law Section 829 but also
47 U.S.C. Section 532(c).
II. MOVANTS WILL SUFFER IRREPARABLE INJURY IF A PRELIMINARY
INJUNCTION IS NOT GRANTED, AND THE BALANCE OF HARDSHIPS TIPS
DECIDEDLY IN FAVOR OF MAINTAINING THE STATUS QUO PENDING
DISPOSITION OF THE CONSTITUTIONAL AND STATUTORY ISSUES
RAISED BY THIS CASE.
The Supreme Court has held that "[t]he loss of First
Amendment freedoms, for even minimal periods of time,
unquestionably constitutes irreparable injury." Elrod v.
Burns, 427 U.S. 347, 373 (1976); see also Abdul Wali v.
Coughlin, 754 F.2d 1015, 1026 (2d Cir. (1985). Because
movants' expressive opportunities are clearly affected
adversely by the Time Warner policy, it is evident that
movants will suffer irreparable injury if the policy is not
enjoined.
That movants will suffer an adverse impact by virtue of
the new policy cannot seriously be denied. As Judge Wald's
opinion in Alliance acutely observed, the seriousness of the
impact can be attributed to the realities of television
viewing. Judge Wald noted:
"The market for "indecent" speech does not break down neatly
speech in their homes, and those who do not. . . . Many
viewers fall somewhere in between. They may not want a
steady stream of "indecent" speech, and probably do not want
to be perceived (even by their cable operator, must less
anyone who might later acquire such information by subpoena
or otherwise) as the kind of people who do. They therefore
will not affirmatively write for access to the "indecent"
channel even if they become aware of it. Yet, given a free
choice in the matter, they might prefer to have unimpeded,
selective access to some but not all programs that fall
within that broad umbrella designation. Not only
aficionados of the arts or of politics but also the mildly
curious might well decide to watch an "unvarnished"
documentary on the Mapplethorpe exhibit if it is readily
available, for example, but may not write to request an
entire channel of indecency on the chance that this and
similar programs will be included. They may want to shield
their children from most "indecent" programming, yet may
occasionally find it appropriate to expose older children to
frank, even graphic discussions of sexuality and the AIDS
epidemic, including some programs that might fall within the
FCC's definition of "indecency" (or at any rate are close
enough to the line that cable operators will ban them
altogether or relegate them to the "indecent" channel).
Whether they are "channel surfers" who like to browse before
settling on a program, or "appointment viewers" who prefer
to study a program guide and watch pre-selected programs,
this regulation makes it substantially more difficult for
cable subscribers to selectively control the content of
their viewing on a program-by-program basis. It thus places
a substantial burden on their speech rights as adult
television viewers, while adding nothing to their ability to
exercise selective control over their children's viewing.
"At the heart of the First Amendment lies the principle that
each person should decide for him or herself the ideas and
beliefs deserving of expression, consideration, and
adherence." Turner Broadcasting System. Inc. v. FCC. 114
S.Ct. 2445, 2458 (1994). So too, when it comes to umpiring
the "decency" of the communications permitted into our
homes, the government's role should be restricted to one
which supports not replaces society's primary institution
for moral education -- the family."
Alliance, 56 F.3d at 136.
Moreover, as Judge Wald also pointed out,
"only those who identify themselves as having a compelling
interest in receiving the segregated category of speech are
likely to take the special affirmative steps necessary to
receive it. . . . Others with a milder level of interest
or a lesser commitment to challenging the government's
disapproval may lack the boldness to step forward and
request it, or the initiative to take the affirmative steps
necessary to gain access to the sealed-off information.
Some may never even become aware that the speech may be
received upon special request. Almost certainly fewer
people will ultimately hear such speech. And under the new
economic realities of a diminished market for their product
as a result of governmental intervention, potential
producers of such controversial speech will be disinclined
to create it. Thus can government-imposed access barriers
effectively squelch constitutionally-protected speech."
Id. at 135.
The declarations of movants Al Goldstein, Robin Byrd,
and Lou Maletta provide ample support for these conclusions,
even before Time Warner's scrambling has begun. There seems
little doubt the movants' programming has already sustained,
and will continue to sustain, real and substantial burdens
as a direct result of Time Warner's new scrambling policy.
Further, as the Supreme Court has consistently
recognized in cases from Lamont to McIntyre, affirmative
self-identification requirements are a substantial burden on
First Amendment rights and are sure to deter access to
expression and restrict its availability, with resulting
self-censorship pressures, loss of advertising revenues,
and, potentially, the concentration of all "indecent"
programming in the hands of the cable company -- directly
contrary to the explicit purposes of leased access
availability as articulated by Congress in Section 612(a) of
the federal Cable Act.[fn 16] See I.A.4 supra. In sum, it
cannot be doubted that Time Warner's policy will diminish
the audience that movants will reach. The only question is
how large the impact will be. But however large that
impact, it seems indisputable that movants will suffer
irreparable injury if implementation of the policy is not
enjoined. Further, it also seems indisputable that the
balance of hardships tips decidedly in favor of the issuance
of a preliminary injunction where, as here, the injunction
will simply maintain the status quo pending ultimate
resolution of the important constitutional and statutory
issued raised by this lawsuit.
III. MOVANTS' MOTION FOR LEAVE TO FILE A SECOND AMENDED
COMPLAINT AND TO ADD PARTIES SHOULD BE GRANTED.
A. Motion for Leave to File an Amended Complaint
Rule 15(a) of the Federal Rules of Civil Procedure
provides in part as follows:
"A party may amend the party's pleading once as a matter of
course at any time before a responsive pleading is served
or, if the pleading is one to which no responsive pleading
is permitted and the action has not been placed upon the
trial calendar, the party may so amend it at any time within
20 days after it is served. Otherwise, a party may amend the
party's pleading only by leave of court or by written
consent of the adverse party; and leave shall be freely
given when justice so requires."
Plaintiffs Al Goldstein and Media Ranch, Inc., filed
their original complaint in this action on July 18, 1990.
Subsequently, on February 22, 1993, this Court granted
plaintiffs' motion for leave to file an amended complaint
pursuant to a stipulation by all counsel dated December 12,
1993. Thereafter, on March 2, 1993, plaintiffs filed their
Amended Complaint dated November 20, 1992. The instant
motion seeks leave to file a Second Amended Complaint dated
August 31. 1995.
A motion for leave to amend a pleading under
Fed.R.Civ.p. Rule 15(a) should be "freely given when justice
so requires." There are no time constraints placed upon a
party seeking to amend a pleading and courts have the
authority to grant the motion at any time before trial,
during trial, after trial and on remand from an appeal.
Carey v. Beans, 500 F.Supp. 580 (E.D. Pa. 1980), aff'd. 659
F.2d 1065 (3rd. Cir. 1983); Nance v. Gulf Oil Corp., 817
F.2d 1176 (5th Cir. 1987); Textor v. Board of Regents, 711
F.2d 1387 (7th Cir. 1983); Columbia v. Paul N. Howard Co.,
707 F.2d 338 (8th Cir. 1983), cert. denied, 464 U.S. 893
(1983).
Rule 15 does not specify the grounds that support a
motion for leave to amend a pleading. But case law
recognizes the addition of claims or defenses as a valid
ground for seeking leave to amend a complaint. Freedman v.
Bee Machine Co., 319 U.S. 448 (1943). A request for
additional or different relief than originally demanded as
well as the addition and/or substitution of parties to an
action are also well-recognized grounds for amending a
pleading under Rule 15. United States v. Hougham, 364 U.S.
310 (1960), reh. denied, 364 U.S. 938 (1961); Staggers v.
Otto Gerdau Co., 359 F.2d 292 (2nd Cir. 1966).
In this case, Time Warner has implemented a new
censorship policy which will supplement its previous
censorship regime. This new policy deeply implicates the
constitutionality of the 1992 Act. An amended complaint is
an appropriate vehicle to address this new state of affairs.
In previously agreeing to stay this litigation, this
Court and counsel anticipated that Section 10 and the
constitutional challenge to it in Alliance would affect the
then-pending claims in this lawsuit. Thus, defendants
cannot reasonably contend that they are surprised by these
proposed amendments or that they serve to work an injustice
upon them. None of the interests of any litigants in this
case would in any way be prejudiced if the Court grants the
requested Rule 15 relief. See Byrne v. Buffalo Creek R.
Co., 536 F. Supp. 1301 (S.D.N.Y. 1982).
B. Motion for Leave to Add Parties
In addition to the new claims, movants seek Rule 15
relief to add new plaintiffs to the action, all of whom, for
reasons explained below, will be adversely affected by Time
Warner's censorship policy.
As stated above, a motion for relief under Rule 15 can
properly be grounded on the movant's addition and/or
substitution of parties. Staggers v. Otto Gerdau Co.,
supra. Fed.R.Civ.P. Rule 21 minimized the harsh
consequences of misjoinder or nonjoinder of parties at
common law by authorizing the addition of parties. See
United States v. Commercial Bank of North America, 31 F.R.D.
133 (S.D.N.Y. 1962). In addition, Fed.R.Civ.P. Rule 20(a)
allows permissive joinder of parties whenever 1) there is a
question of law or fact common to all the parties and 2)
there is asserted by or against the parties a right to
relief arising out of the same transaction or occurrence or
a series of transactions or occurrences.
Movants seek to add as plaintiffs in this case Kee-Byrd
Productions, Inc., and Robin-Byrd, its President and
principal, and Gay Cable Network, Inc., and Lou Maletta, its
President and principal, all of whom have filed declarations
confirming their desire to join the case as plaintiffs. As
is the case with the original plaintiffs, these proposed new
plaintiffs are also producers of leased access programs that
are cablecast on Time Warner's leased access Channel 35 who
have had their programming subject to censorship by Time
Warner through its pre-screening requirements. In addition,
all of the plaintiffs in the proposed Second Amended
Complaint are subject to the new scrambling policy announced
by Time Warner and are therefore adversely affected by that
proposed censorship. Undoubtedly, each of these parties
would have standing individually to institute their own
actions. The purpose of Rule 20, in authorizing the
permissive joining of these parties, is to promote trial
convenience and to expedite the final determination of
disputes, thereby preventing multiple lawsuits. Mosely v.
General Motors Corp., 497 F.2d 1330 (8th Cir. 1974); Fair
Housing Development Fund Corp. v. Burke, 55 F.R.D. 414
(S.D.N.Y. 1972). Clearly, this Court would achieve this
purpose by granting the requested relief.
CONCLUSION
For the foregoing reasons, movants' motion for a
preliminary injunction and for leave to file a Second
Amended Complaint should be granted.
Dated: New York, New York
August 31, 1995
Respectfully submitted,
/s/Kenneth P. Norwick (KN4622)
Norwick & Schad
One Madison Avenue
New York, New York 10010
(212) 447-5000
Vlad G. Spitzer
Goldbergh & Spitzer
11 East 44th Street
New York, New York 10017
(212) 681-9101
/s/Arthur Eisenberg (AE2012)
New York Civil Liberties Union Foundation
132 West 43rd Street
New York, New York 10036
(212) 382-0557
Marjorie Heins
American Civil Liberties Union Foundation
132 West 43rd Street
New York, New York 10036
(212) 944-9800
Counsel for Plaintiffs
-----------------------------------
Endnotes
1. "Leased access" channels along with "public access"
channels are those channels that have been reserved for
communication and expression by individuals and entities who
would not otherwise gain communicative access to the cable
system if decisions about access were left exclusively to
the editorial discretion or business judgments of the cable
companies. In this sense, "access" channels have long been
understood as electronic fora that were are not under the
editorial control of cable companies but are reserved in the
interest of diverse and pluralistic expression. Among the
"access" channels, "leased access" differs from "public
access" in that "leased access" programming may include
commercial advertisements while "public access" channels
must remain commercial-free. A discussion of the background
and purposes of Section 612 of the 1984 Cable Act, 47 U.S.C.
Section 532, the first federal legislation dealing with
leased access channels, is contained in this Court's opinion
in Media Ranch. Inc.. v. Manhattan Cable Television. Inc.,
757 F. Supp. 310, 313-14 (S.D.N.Y. 1991) ("Media Ranch").
2. A copy of Section 10 as enacted is annexed to the
affirmation of Kenneth P. Norwick as Exhibit "A.
3. Bringing cable wire to each home, office building,
hotel and restaurant within a community was well understood
as a time-consuming and expensive proposition. And, in urban
settings -- where such a process involved digging up the
streets and sidewalks it was also seen as a disruptive
undertaking. Thus, it was anticipated that, as a practical
matter, in most communities only one franchise would be
awarded for a defined geographic region.
4. A copy of the First Report and Order is annexed to the
affirmation of Kenneth P. Norwick as Exhibit "B."
5. Copies of the three stay orders issued by the D.C.
Circuit in Alliance are annexed to the affirmation of
Kenneth P. Norwick as Exhibit "C."
6. After the panel decision and before rehearing en banc in
Alliance, a federal district court in California also
declared Section 10(a) and Section 10(c) of the 1992 Act to
be unconstitutional. Altmann v. Television Signal Corp., 849
F.Supp. 1335 (N.D.Cal. 1994).
7. A Copies of that policy statement and Time Warner's
press release announcing it are annexed to the affirmation
of Kenneth P. Norwick as Exhibit "D."
8. If this interpretation of Time Warner's policy is
correct, it means that programming will be scrambled even if
it does not in fact qualify as "indecent" under Time
Warner's own definition and interpretation of that term.
Thus, for example, if a program offered by a movant during
its regular leased access time period consisted entirely of
a round-table discussion of the constitutionality of Time
Warner's new policy, that program would nevertheless still
be scrambled by Time Warner as "indecent"
9. This Court need not decide whether exposure to
"indecent" speech actually harms minors; at least one
respected appellate Judge has noted the absence of any
evidence that it does. See Alliance, 56 F.3d 105 at 145
(Edwards, J. dissenting, in part).
10. As evidence of the haste and absence of consideration
given to the adoption of Section 10, it is noteworthy that
although Section 10 significantly altered the 1984
legislative scheme under which cable companies were
prohibited from censoring the content of leased access
programming, nothing in Section 10 actually amended the
provision of the 1984 Cable Act, Section 612(c)(2), that
prohibits cable companies from engaging in content-based
discrimination. Thus, Section 612(c)(2) of the 1984 Cable
Act remains unamended by Section 10 of the 1992 Act.
11. See Blum v. Yaretsky, 457 U.S. 991,1004 (1982)
12. The vagueness problem is far more acute here than in
Dial Information Services, 938 F.2d 1540-41, because the
dial-a-porn definition of indecency did not embrace whatever
a particular entity may "reasonably believe" is "patently
offensive" according to "community standards." Dial also did
not involve certification or oath requirements, with their
well-recognized chilling effect. See Baggett v. Bullitt. 377
U.S. 360, 371 (1964).
13. For example, consider the FCC's fines against radio
stations that broadcast Howard Stern and others for
"off-color" jokes and puns, see Nudelman, "A Chilly Wait in
Radioland," 2 Jrnl. Law & Policy 115 (1994); Soocher,
"Explaining FCC Indecency Standards: Howard Stern's Radio
Flap," 8 Ent.Law & Fin 3 (Jan. 1993); "FCC Fines Radio
Station Owner $600,000 Due to Howard Stern's Airing of
'Indecent' Material," 14 Ent. L. Rptr. No. 8 (Jan. 1993).
See also United States v. Evergreen, 832 F.Supp. 1179, 1183
(N.D. Ill. 1993) (FCC indecency fines imposed for talk-show
discussions of Miss America photos in Penthouse Magazine and
song with sexual innuendos). . Consider, as well, that in
Pacifica mere "vulgar" words were considered "indecent" and
the radio station could marshal no defense resting upon the
"serious value" of the material as social satire. FCC v.
Pacifica Foundation 438 U.S. 726 (1978).
14. Because Time Warner has established no procedure to
resolve disputes about particular programs and because Time
Warner apparently will not undertake program-by-program
determinations, this case involves the systemic failure to
provide a procedure that would comply with Freedman Should
such a procedure be developed or should movants' systemic
challenge be rejected, movants reserve the right to
challenge Time Warner determinations with respect to
particular shows in another proceeding and perhaps another
forum.
15. Upon this premise, Judge Randolph also rejected
petitioner's "public forum" analysis. In this regard, Judge
Randolph stated that "a 'public forum' or even a 'nonpublic
forum,' in First Amendment parlance [always involves]
government property" and "state action is present because
the property is the government's and the government is doing
the restricting." Alliance, 56 F.3d at 121. Judge Randolph
was not correct in asserting that the First Amendment public
forum doctrine only applies to government property. See
Missouri Knights of the Ku Klux Klan v. Kansas City, 723
F.Supp. 1347, 1351-52 (W.D. Mo. 1989) (public access channel
is public forum; forum analysis "has never rested entirely
on the status of its owner"); U.S. Postal Service v. Council
of Greenburgh Civic Ass'n, 453 U.S. 114 (1981) (private
mailboxes are public forum); Southwestern Promotions, Ltd.
v. Conrad, 420 U.S. 546 (1975) (privately owned theater
leased to government was public forum); Cornelius v. NAACP
Legal Defense & Educ. Fund, 473 U.S. 788, 801 (1985) (public
fora include "private property dedicated to public use").
More importantly, however, Judge Randolph was wrong to
conclude that the public and leased access channels are the
property of the cable companies in any way other than in a
caretaker or custodial sense. And, as discussed above, this
custodial or conduit function is constitutionally compelled.
16. Indeed, Congress in 1992 added as a purpose of leased
access availability the desire "to promote competition in
the delivery of diverse sources of video programming." 47
U.S.C. Section 532(a).
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