Regulating public access programming without violating First Amendment rights.

• Jurisdiction: United States
• Date: 01 December 2003
• Author: Brady, Carl E., Jr.

Congress enacted 47 U.S.C. [section] 531 in order to allow local governments serving as the franchising authority for cable rights to require a cable operator receiving the local franchise to set aside certain stations for public, educational, or government use. These channels, commonly referred to as the "PEG" channels, provide citizens a soapbox for public discourse and, as such, invoke standard First Amendment protections for those speakers.

Public access programming falls under the "P" designation in the "PEG" and is the category at issue most often because it is where citizen participation intersects with government regulation and control. Citizens supply programming for the public access channel as show producers, while the government regulates citizen use of the channel through a local policy manual. (1) This inevitably creates a conflict the determination of which is contingent, in part, on the constitutional status of the public access channel. In making this determination, the question of whether the public access channel is a public forum is a primary concern.

Public Forum Analysis

Public forum status has evolved over time and was clarified by the U.S. Supreme Court in Perry Education Association v. Perry Local Educators Association, 460 U.S. 37 (1983), in which the Court set out the standard of review for determining the limits of appropriate regulation of speech in a public forum. The Court initially explained that its analysis provided for three distinct categories of fora, each requiring a distinct level of scrutiny. First is the traditional public forum, which consists of public streets, parks, and other areas that are commonly used to express ideas. (2) Designated public fora constitute the second level of scrutiny and these sites consist of those places specifically set aside by the government for citizen expression. (3) Finally, certain forum areas are simply nonpublic. These are sites that are not traditionally set aside for public discourse and receive no special dispensation as such from the government. (4) The standard of review is therefore contingent on the court's interpretation of the constitutional status of the forum.

Under the first two categories, content-based regulation must serve a compelling interest and be narrowly drawn to achieve that interest, whereas under the third category, the government regulation need only be reasonable and viewpoint-neutral in order to satisfy constitutional standards. Content-neutral regulations, in contrast, must be narrowly drawn to serve a significant state interest and leave open ample alternative channels of communication in the public forum context. (5) However, in a nonpublic forum, only the reasonableness standard applies. (6)

The logical next question is where in the spectrum does a public access channel lie. Lower courts have vacillated on this question and neither our Supreme Court nor the 11th Circuit Court of Appeals has directly addressed it, yet the outcome of any challenged regulation of public access programming rests squarely on the courts' interpretation of this issue. These inconsistent interpretations are created by the U.S. Supreme Court's failure to gain a majority opinion in its decisions and, as such, a review of the case law on point is required to obtain a full understanding of the limits of government regulation.

In Denver Area Educational Telecommunications Consortium, Inc. v. FCC, 518 U.S. 727 (1996), the Court dealt with a challenge to [section] 10(a), (b), and (c) of the Cable Television Consumer Protection and Competition Act of 1992. (7) Section 10(c) of the act addressed Congressional intent regarding regulation of public access channels. The act was proscriptive in that it allowed local cable operators to prohibit programs containing obscene material, sexually explicit conduct, or material soliciting or promoting unlawful conduct. The FCC, in turn, promulgated language defining "sexually explicit" as a description or depiction of "sexual or excretory activities or organs in a patently offensive manner." (8) In a fractured plurality decision, the Court, found [section] 10(c) to be unconstitutional. Justices Breyer, Stevens, and Souter provided four elements that were violated in support of their decision, whereas Justices Kennedy and Ginsburg employed the public forum analysis in coming to the same conclusion. Though these two camps agreed that [section] 10(c) was unconstitutional, their analysis could not be any more disparate.

The majority of the plurality held that [section] 10(c) did not satisfy its self-created scrutiny standard. Particular notice must be given to the fact that the verbiage did not use the term "strict scrutiny" as a specific scrutiny label, nor was a test provided, much to the chagrin of Justice Ginsburg. Indeed, the majority found four troubling factors made the act unconstitutional. As these four aspects carried the most weight in the Court's decision, they also should carry the heaviest weight in a current examination concerning the parameters of appropriate regulation.

Initially, the Court expressed concern with [section] 10(c) based on the fact that public access channels traditionally did not exercise editorial control. This factor was weighed against regulation by local government, because there was no historical support for the proposition that such regulation advanced a government interest. (9) The second factor with which the plurality took issue was the federal "top down" approach of [section] 10(c), in that the federal regulatory scheme imposes a one-size-fits-all approach to addressing local concerns. The plurality opined that public access channels are subject to complex supervisory systems that effectively protect the public's interest through local government, nonprofit, or cable system management. As such, this second factor can actually be used to the benefit of local regulators. Of significance, the Court explained that [section] 10(c) was unnecessary because "[t]here is a locally accountable body capable of addressing the problem ... of patently offensive programming." Similarly, the third and fourth factors considered by the Court focused on the viability of local controls to protect local citizens from potentially offensive programming. As can be seen, the majority opinion provided no concrete standard to follow. The factors cited in support of their decision instead focused on the infirmities of the federal regulation rather than the constitutional standards breached. Therefore, while the Denver Area opinion addressed the immediate question before the Court, it also created a confused analysis for lower courts to follow.

Contrasting the majority opinion, Justice Ginsburg's concurrence clearly set out an applicable standard. In her opinion, joined by Justice Kennedy, the Court should have found [section] 10(c) unconstitutional under a strict scrutiny public forum analysis. Ginsburg argued that public access channels fall into the second category of public forum property because they constituted "property that the State has opened for expressive activity by part or all of the public." (10) Ginsburg went on to explain that, based on the legislative support for the 1984 Cable Act, public access was intended to give voice to those who generally do not have access to the electronic media and, as such, these channels provide "the video equivalent of the speaker's soapbox." (11) Therefore, according to the concurrence, application of the public forum analysis was appropriate.

In placing the overlay of the public forum...