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Home My WebLink About1991-03-15 Notes of Dave Roberts Re: Power of American Community Cablevision to Regulate Speech on Public Access ChannelsNOTES OF DAVE ROBERTS RE: POWER OF AMERICAN COMMUNITY CABLEVISION TO REGULATE SPEECH ON PUBLIC ACCESS CHANNELS THAT IS CONSTITUTIONALLY UNPROTECTED AS INDECENT OR:OFFENSIVE BUT IS NOT OBSCENE March 15, 1991 Issue:- Can ACC restrict non -obscene yet constitutionally unprotected "indecent" or "offensive" speech on public access channels? Answer: No. Federal and State law forbid ACC from exercising editorial control over public access, educational, or government (PEG) channels. :While Federal law allows the franchising authority to include such restrictions in:a franchising agreement, State lawforbids a municipality from exercising editorial control over public access channels, and ACC' -s franchise agreement contains no restrictions on public access channels. (Some commentators have challenged the constitutionality of regulation which forces operators to carry programming which might conflict with its own speech. These commentators rely on an analogy of cable systems to newspapers which could not be regulated in this way. But courts have held that cable systems, are unlike newspapers because they are a natural monopoly. Public access channels are thus the analogy to a poor man's leaflets. But ACC cannot challenge a prohibition on its control 'on this ground. They could only seek to invalidate the City's demand for PEG channels.) While Congress sought to promote diversity in the Cable Act, it also sought to restrict constitutionally unprotected speech. In the case of obscenity, this prohibition is absolute. While Federal law allows the franchising authority to include such restrictions in a franchising agreement, State law__ forbids a municipality from exercising editorial control over public access channels, and ACC's franchise agreement contains no restrictions on public access channels. Finally, the First Amendment may protect the rights of access producers over the rights of offended listeners to privacy. Two arguments support this conclusion. First, subscribers have the right to demand of ACC. a lockbox to lock out public access channels, if the channels offend. Secondly, courts have generally held that cable tv is distinct from broadcasting. Viewers subscribe to a service and accept the risk that speech in the forum at issue may offend them. They are like newspapers readers and not like radio listeners who enter the - 1 scarce radio medium without subscribing to it as a service as justification for government (FCC) regulation. Time, place and manner restrictions on Public Access channelsmight therefore be unconstitutional even if promulgated by the City of Ithaca through ACC's franchise. Discussion: A New York cable operator has no power to restrict programming on PEG channels. Such control is forbidden by the Cable Communications Policy Act of 19894 47 U.S.C. Section 531(e) which provides: "Subject to section 544(d) of this title, a cable operator shall not exercise any editorial control over any public, educational, or governmental use of channel capacity provided pursuant to this section." In addition, New York law forbids a cable operator's editorial control. Executive Law Section 829 provides: "No 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." Title 9, Section 595.4(8) of the New York Code, Rules and Regulations also limits an operator's editorial control. "The cable television franchisee shall not exercise any editorial control over any public, educational or governmental use of channel capacity designated for PEG purposes." The policy behind such limitations is to promote a diversity of opinion on cable systems which an operator's control might diminish. 47 USC Section 559 forbids obscenity on cable television: "Whoever transmits over any cable system any matter which is obscene or otherwise unprotected by the Constitution of. the United States: shall be fined not.more than $10,000 or imprisoned not more than 2 years; or both." 2 Congress also empowered franchising authorities to block a cable service it deems to be indecent. 47 USC Section 532(h): "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 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." Laurence Winer has, noted that this provision is probably unconstitutional as a prior restraint withoutjudicialreview. (The Signal Cable Sends, Part II, LV Fordham L. Rev. 459 March 1987). Congress also empowered franchisees and franchising authorities to include limitations in their franchise agreements. - 47 USC Section 544(d)(1): "Nothing in this subchapter shall be construed as prohibiting a franchising authority and a cable operator from specifying, in a franchise or renewal thereof, that certain cable services shall not be provided or shall be provided subject to conditions, if such cable services are obscene or are otherwise unprotected by the Constitution of the United. States." These provisions adopt the vague standard of "constitutionally unprotected" speech, thereby giving local authorities as much control as possible. New York State, in Executive Law Section 829, adopted the same vague standard from the vantage point of the First Amendment. Section 829(1) prohibits regulations which would "interfere with the right of free speech." The protections in Section 829(1)-(3) may also be broader in that they speak of "program or class of programs" as protected, not simply free speech. Executive Law Section 836 limits cable television programs but not for "indecency." The City of Ithaca chose not to limit speech on public access channels in its franchise agreement with ACC. ACC thus agreed to support public access channels free of restriction except by the Federal prohibition against obscenity and applicable Federal, state and local laws. congress and the New York Legislature clearly left open this option to franchising authorities like Ithaca. 3 Lock Box Options Protecting viewers against offensive [word omitted] has always been held a valid government interest. But the right of viewers to privacy is balanced against the right of speakers to exercise their right to free speech under the First Amendment. In cases like Cohen v. California, the Supreme Court has balanced the two interests. In Cohen the plaintiff's right to express himself through the words "Fuck the Draft" on his jacket was held superior to the right of those offended not to see the word "fuck." The fact that Cohen was in public established the balance in his favor. The Court departed from this protective stance in Pacifica because it considered a radio listener entitled to protection where a person in a public building was not. Congress and the New York Legislature foresaw the dilemma that offensive speech on public access channels would present. Part of the Cable Act of 1984 and Executive Law Section 829-a both presented a technical solution to the balancing of rights. 47 USC Section 544(d)(2)(A) mandates that a cable operator provide a lock box, to any subscriber who requests one, to lock out any cable service that is "indecent." "In order to restrict the viewing of programmingwhich is obscene or indecent, upon the request of a subscriber, a cable operator shall provide (by sale or lease) a device by which the subscriber can prohibit viewing of a particular cable service during periods selected by that subscriber." Executive Law Section 829-a goes further. It specifically mentions public access programs, limits the cost of lock boxes, and mandates annual notice and notice to new subscribers about the option. The lock box option tips the constitutional balance toward access speakers and away from viewers. The lock box prevents the Pacifica situation and puts viewers on notice that public access television is an open forum analogous to going out in public. In the absenceof lock boxs, cable television may be -more like newspapers or..a public area than radio broadcasts'. The justification for FCC control over radio licensingdependson the scarcity of the broadcast spectrum. Cable television is under no such scarcity. (Each service -depends on its own cables.),.. The presence, therefore, of an offensive, channel does not entail a diminishment of the broadcasting available to a viewer. This is especially so in Ithaca's case where there are unused PEG channels awaiting public need for them. 4 In conclusion, the lock boxes available to sensitive viewers protect their rights. Any regulation of offensive speech might not be constitutional even were it deemed advisable. Conclusion While the constitutional issues are uncertain, the statutory authority is clear. ACC cannot restrict speech on public access channels. Only the City or ACC, through a franchise agreement, could do so. Because the legally mandated lock box resolves the offended viewer's problem, any regulation might be unconstitutional even if the City desired to adopt it. 5