Case Brief: Denver Area Educational Consortium V. Fcc , 518 U.S. 727

CASE BRIEF

Communications Law & Ethics

1. Title and Citation

Denver Area Educational Consortium v. FCC , 518 U.S. 727

2. Facts of the Case

Various regulations implementing the Cable Television Consumer Protection and Competition Act, which regulated indecent and obscene programming on cable television, violated the free speech rights of cable access programmers and cable television viewers under the First Amendment.

3. Issues

It involves three sections of the Cable Television Consumer Protection and Competition Act of 1992, as implemented by FCC regulations. Between 1984, when Congress authorized municipalities to require operators to create public access channels, and the Act's passage, federal law prohibited operators from exercising any editorial control over the content of programs broadcast over either type of access channel. Petitioners sought judicial review of ''10(a), (b), and (c), and the en banc Court of Appeals held that all three sections (as implemented) were consistent with the First Amendment." Legal Question presented: Do the Television Consumer Protection and Competition Act's empowerments and restrictions violate the petitioner's First Amendment right to freedom of speech?

4. Decisions

Date of Decision: June 28th, 1996. The portion of the regulations, which permitted cable operators to restrict offensive or indecent programming on leased cable channels, was constitutional. However, those portions of the regulations, which allowed the operator, tore strict such programming on public access channels, and which required cable operators to put patently offensive programming on separate channels, which cannot be received unless a viewer requests to have the channel "unblocked," were unconstitutional restrictions on free speech.

5. Reasoning

Such a categorical approach "import[s] law developed in very different contexts into a new and changing environment, and . . . lack[s] the flexibility necessary to allow government to respond to very serious problems without sacrificing the free exchange of ideas the First Amendment is designed to protect." Thus, Justice Breyer favored a "contextual assessment" of the law, in which a regulation on speech is upheld if it "properly addresses an extremely important problem, without imposing, in light of the relevant interests, an unnecessarily great restriction on speech."

6. Separate Opinions

In contrast to the approach taken by Justice Breyer, Justice Kennedy, who wrote an opinion for himself and Justice Ginsburg, favored a "categorical" approach; "when confronted with a threat to free speech in an emerging technology, the Court ought to have the discipline to analyze the case by reference to existing First Amendment principles." In Justice Kennedy's view, cable television falls into the same category as speech in a "public forum," such as a speaker standing on a street corner. Justice Kennedy