Amicus Curiae Brief — Turner Broadcasting System, Inc. v. FCC

FirtLi:i.s

No. 93-14 ROV - 3 1993

—— wt CLERK

IN THE

Siyreme Court of the United States

OCTOBER TERM, 1993

TURNER BROADCASTING SYSTEM, INC., et ail..

. Appellants,

FEDERAL COMMUNICATIONS COMMISSION, et al..

Appellees.

On Appeal from the United States District Court

for the District of Columbia

BRIEF OF CITIZENS FOR A SOUND ECONOMY

FOUNDATION AS AMICUS CURIAE IN SUPPORT OF

APPELLANTS TURNER BROADCASTING SYSTEM.

INC., ET AL. IN CASE NO. 93-41

JAMES L. GATTUSO MArk R. PAOLETTA *

MICHELE ISELE O'CONNOR & HANNAN

CITIZENS FOR A SOUND 1919 Pennsylvania, Ave., N.W.

ECONOMY FOUNDATION Suite 800 .

1250 H Street, N.W. Washington, D.C. 20006

Suite 700 (202) 887-1400

Washington, D.C. 20005 Counsel for Amicus Curiae

(202) 783-3870 Citizens for a Sound

Economy Foundation

November 9, 1993 * Counsel of Record

WILSON - Eres PRINTING Co.. INC. - 789-0096 - WASHINGTON. D.C. 20001

BEST AVAILABLE COPY

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ......................................... ii

INTEREST OF THE AMICUS CURIAE ............ 1

BACKGROUND STATEMENT... 2

SUMMARY OF ARGUMENT ................................ 3

RRR EES 0 A et 4

I. O'BRIEN’S DEFERENTIAL TEST IS INAP-

PROPRIATE TO REVIEW SPEAKER-

SPECIFIC, CONTENT-BASED REGULA-

ha SERIE Se 9 4

A. Must-Carry Regulations Are Directed At

RISES SEAS SaaS atcha 5

B. Must-Carry Regulations Are Content-Based

Intrusions On Editorial Discretion... 6

Il. FIRST AMENDMENT PROTECTION FOR

SPEECH SHOULD NOT VARY BASED ON

THE MEDIUM USED .......0000.................... seein 9

A. This Court Has Justified Lower First

Amendment Protection By Distinguishing

New Media From The Print Press a ol

1. Cinema ........ Saesseclbadishdseaiaeiaaindiieileecitabaititahihinsons 12

IN cs scatcacesiosedasainiinsicitiessdiecsaantapanseneesoas 12

Ee RE a ee 13

B. First Amendment Values Do Not oe

Content-Based Regulation ....._ : 17

Iti. THIS COURT SHOULD DISCARD MEDIUM-

BASED RIGHTS APPROACH AND ADOPT A

MESSAGE-BASED RIGHTS APPROACH........ 19

Ch RR SSE ee Teen 23

ii

TABLE OF AUTHORITIES

Cases Page

Associated Press v. United States, 326 U.S. 1

(1945)... ...........cceccceceensceerennsiomeuenslnsinnnian anna 5

Buckley v. Valeo, 424 U.S. 1 (1976) «2.0000. 8

City of Lakewood v. Plain Dealer Publishing Co.,

486 US. 760 (19GB) ......cccrcocencsetssnteeee 5

City of Los Angeles v. Preferred Communications,

Ine., 476 U.S. 468 (1006) ...ccceccccsocssueeeee 7,10, 11

City of Renton v. Playtime Theatres, Ine., 475

UB. 41 (RODS) ooo.ncccccccscscccnssceccesesssscneeaseeeaan 8

Clark v. Community for Creative Non-Violence,

468 U.S. 268 (19B4) ....nccccccsssccevssxisscsuaeeeee

Cohen v. Cowles Media Co., 111 S. Ct. 2513

(1991) pens” 6

Columbia Broadcasting System, fae v. , Demecvetie

National Committee, 412 U.S. 94 (1973) _... _.... passim

Community Communications Co. v. City of Boul-

der, 660 F.2d 1370 (10th Cir. 1981), cert. dis-

missed, 456 U.S. 1001 (1982) 13

FCC v. League of Women Voters of California,

468 U.S. 364 (1984) | swcosanassisebeen <esseaann ean 13

FCC v. Midwest V ideo Corp. s “440 U.S. 689

§ , , pee iosstasaenscesaessnnucensniilenllnee 7

FCC +. Pacifica Foundation, 438 U.S. 726 (1978) - 13

Picadas e. Maryland, 380 U.S. 51 (1965) | 12

Joseph Burstyn, Inc. ». Wilson, 343 U.S. “495

(1952) : teal jetaae = 12

Leathers v. Medlock, 111 8, Ct. 1438 (1991). 5,10

Members of the City Council of Los Angeles +. Tar-

payers for Vincent, 466 U.S. 789 (1984) 9

Miami Herald Publishing Co. +. Tornillo, 418 U.S

241 (1974) SRR passim

Minneapolis Star & Tribune Co. v. Minnesota

Comm’r of pote 460 U.S. 575 (1983) 5

Mutual Film Corp. Industrial Commission of

Ohio, 236 U.S. 330 (1915 | 12

National Proadcasting Co, v. United States, 319

U.S. 190 (1943) |. ~encglec eee 12

Omega Satellite Products Co. v. City of Indianap-

olis, 694 F.2d 119 (7th Cir. 1982) 0000... ..... 13

iii

TABLE OF AUTILORITIES—Continued

Pacitie Gas & BRlee. Co. ¢. Public Utilities Comm'n.

475 US. 1 (1986)

Preferved Communications, Ine. vr. C tu of Las An-

geles, Calif., TA F.2d 1396 (9th Cir. 1985),

aff'd sub nom, City of Los Angeles vr. Preferred

Communications, Ine, 476 US. 488 (1986) 14,

PreneVard Shonpinag Center v. Robins, 447 U.S.

71 €1ORO)

Ouineu Cable TV, lee. v. PCC, 768 F.2d 1434 (D.C.

Cir, 1985), cert. denied, A76 U.S. 1169 (1986)

Red Lion Broadcasting Co. ». FCC, 395 U.S. 367

Pave

16,17

7

passim

(1969) = passim

Rilew v. National Fred’ ” of the Blind of North Car-

olina, Tne, ABT US. 781 (1988) 6, 18,19

Simon & Schuster, Tne. +. Members of the New

York State Crime Victims Board, 112 S. Ct. 501

(1991) peseaee teas 19

Southeastern Promotions, Ltd. ”, Conved, 120 U.S,

I is cnisnemee ‘a 11

Telecommunications Research & Action Center vr.

FCC, 801 F.2d 501 (1986), cert. denied, 182

U.S. 919 (1987) 20 Oe 20)

Telesat Cablevision, Ine. v. City of Riviera Peach.

773 F. Supp. 383 (S.D. Fla. 1991) 18

Teras v. Johnson, 491 U.S. 397 (1989) 4

Turner Rroadcasting Sustem. Ine. vr. FCC, 113

S. Ct. 1806 (1993) . 10

Tnited States v. Albertini, 472 U.S. 675 (1985) 9

Inited States v. O'Rrien, 8391 U.S. 367 (1968)

Ward v. Rock Against Racism, 491 U.S. 781

(1989)

Constitution and Statutes

U.S. Const. Amend. T

Cable Communications Policy Act of 1984, Pub. L.

No. 98-549, 98 Stat. 2779

§I7 U.S.C. $ 532

Cable Television Consumer Protection and Com-

petition Act of 1992, Pub. L. No. 102-385, 102

Stat. 1160

§ 2(a) (6)-(12), 106 Stat. 1461 |

passim

1,9

passim

~!

wt

ie

1:

to

18

iv

TABLE OF AUTHORITIES—Continued

$ 2(a) (11), 106 Stat. 1461

$4 (AT U.S.C. $534) )

$4(b)(1)(B) (47 ULS.C. $ 534 (b) (1) (B))

$5 (47 U.S.C. $535)

Miscellaneous

J. Emord, FREEDOM, TECHNOLOGY, AND THE FIRST

AMENDMENT (1995) So

George Gilder, What Spectrum Shortage?, ForRrs,

May 27, 1991 ae ona

Thomas W. Hazlett, Private Monopoly and the

Public Interest: An Economie Analysis of the

Cable Television Franchise, 134 Univ. Pa. L.

Rev. 1335 (1986) sSenntliaibhaaieacs

P. Huber, M. Kellogg & J. Thorne, THEe Groprsic

NETWORK IT: 1993 REPORT ON COMPETITION IN

THE TELEPHONE INDUSTRY (1992). .

Elizabeth Kastor, /t's a Wrap: Dallas Kills Film

Board; To Save $60,000, City Stons Rating

Movies, Wash. Post, Aug. 18, 19938 ___.

William F. Lee, Cable Franchising and the First

Amendment, 36 Vand. L. Rev. 867 (1983)

Licensing Broadcasters: Just What the Framers

Feared?, Cato Ponicy Report (Jan./Fehb.

1988) ; ;

I. Pool, TECHNOLOGIES OF FREEDOM (1983)

Glen 0. Robinson, Cable Television and the First

Amendment, 6 Comm. & the Law, 17 (1984)

A. Schlesinger, PRELUDE TO INDEPENDENCE

(1958)

S. Rep. No. 102-92, 102d Cong., Ist Sess. (1991),

reprinted in 1992 U.S.C.C.AN. 1133 ‘a

U.S. Congress, Office of Technology Assessment,

Science, Technology and the First Amendment,

OTA-CTT-369 (Washineton, D.C.: U.S. Govern-

ment Printing Office, January 1988)

AY

te to to @ a

11

19

14

10, 11

1)

IN THE

Supreme Court of ihe United States

OCTOBER TERM, 1993

No. 93-44

TURNER BROADCASTING SYSTEM, INC., ef ail.,

Appellants,

FEDERAL COMMUNICATIONS COMMISSION, et al.,

Appellees.

On Appeal from the United States District Court

for the District of Columbia

BRIEF OF CITIZENS FOR A SOUND ECONOMY

POUNDATION AS AMICUS CURIAE IN SUPPORT OF

APPELLANTS TURNER BROADCASTING SYSTEM,

INC., ET AL. IN CASE NO, 92-44

INTEREST OF THE AMICUS CURIAE

Citizens for a Sound Economy Foundation (“CSE

Foundation”) submits this brief as amicus curiae in sup-

port of Appellants Turner Broadcasting System, Inc.. et

al.’ Amicus CSE Foundation is a non-profit 501(c)(3)

educational institution which promotes initiatives that

foster economic growth and enhance the quality of Ife

' Consistent with Supreme Court Rule 37.3. all parties have given

CSE Foundation their consent to the filing of this brief.

2

for its 250,00 members and all consumers. Amicus wishes

to bring information to this Court's attention concern-

ing why these miust-carry regulations violate the First

Amendment, and more importantly, why this Court

should recognize full First Amendment protection for

cable and ali other electronic publishers. Lesser protec-

tion would inevitably burden the free speech of all and

hinder technological advancements to the detriment of

consumers and Amicus CSE Foundation’s members.

BACKGROUND STATEMENT

Sections 4 and 5 of the Cable Television Consumer

Protection and Competition Act of 1992. Pub. L. 102-

385. 102 Stat. 1460 (47 U.S.C. §§ 534. 535) (“Cable

Act of 1992”) require cable operators to carry certain

local broadcast stations on their cable systems.? Both

sections prohibit cable operators from altering the content

of or receiving compensation for carrying such stations.

In the decision below, the majority upheld these “must-

carry” regulations, rejecting appellants’ First Amendment

challenge. The majority found that the must-carry regu-

lations are essentially economic regulations designed to

create competition in the video industry and redress cob'e

operators’ anticompetitive practices. The court rejected

a strict scrutiny level of review and uphe'd the regulation,

after applying the more lenient test established in Wnited

States v. O'Brien, 391 US. 367 (1968). The dissent

viewed the must-carry regulations as content-based revu-

lations, applied strict scrutiny review. and concluded thot

the regulations violated appellants’ First Amendment

rights.

* Section 4 concerns mandatory carriage with respect to local

commercial television stations. 47 U.S.C. £534. For example, cable

operators with more than 12 usable activated channels must carry

such stations up to 33° of its channel capacity. $4/b) (1) (RB), 47

U.S.C. § 534(b) (1) (BR). Section 5 contains similar provisions with

respect te local noncommercial educational television stations. 47

U.S.C. § 535.

3

SUMMARY OF ARGUMENT

The must-carry regulations are speaker-specific, con-

teni-based regulations on speech, and therefore. must be

subject to strict scrutiny review. O'’Brien’s deferential test

is inappropriate and dangerously inadequate to review

these regulations, which strike at the core of free speech:

editorial discretion. These regulations would not survive

Strict scrutiny review,

This Court should also recognize that cable operators

(and cable programmers) are entitled to enjoy the same

level of First Amendment protection that this Court has

recognized for the print press. See, e.g., Miami Herald

Publishing Co. v. Tornillo, 418 U.S. 241 (1974).

This Court’s jurisprudence has thus far provided that

some speakers have less First Amendment protection

based on their medium of communication. First Amend-

ment protection should not be based on the nature of the

medium. Rather, all speech should be fully protected by

the First Amendment no matter how it is delivered. The

Information Age we live in is marked by a continuous

revolution in telecommunications technology. A_ First

Amendment jurisprudence that seeks to define rights by

reference to extant technology will be forever outmoded

and. more importantly. will infringe upon the protected

speech of new clectronic speakers.

4

ARGUMENT

I. O'BRIEN’S DEFERENTIAL TEST IS INAPPRO-

PRIATE TO REVIEW SPEAKER-SPECIFIC, CON-

TENT-BASED REGULATIONS

O'Brien's deferential review is applicable only to those

general regulations directed at “noncommunicative con-

duct” and “not related to expression” that have an in-

cidental impact on the exercise of free speech." The stat-

ute at issue in O'Brien, which prohibited the destruction

of a Selective Service draft card. was upheld because

it “plainly [did] not abridge free speech on its face .

and deal[t] with conduct having no connection with

speech.” United States vy. O’Brien, 391 U.S. at 375 (em-

phasis added). O'’Brien’s less burdensome standard is

inappropriate to review the speaker-specific, content-based

must-carry regulations.

* Texas v. Johnson, 491 U.S. 397, 403 (1989). Under O’Brien,

a “government regulation is sufficiently justified if it is within the

constitutional power of the Government; if it furthers an important

or substantial governmental interest; if the governmental interest

is unrelated to the suppression of free expression; and if the

incidental restrictions on alleged First Amendment freedoms is no

greater than is essential to the furtherance of that interest.”

United States v. O’Brien, 391 U.S. at 377.

‘This Court recently emphasized O'Brien's limited applicability :

“In stating, moreover, that O’Brien’s test ‘in the last analysis is

little, if any, different from the standard applied to time, place, or

manner restrictions,’ we have highlighted the requirement that the

governmental! interest in question be unconnected to expression in

order to come under O’Brien’s less demanding rule.” Teras +.

Johnson, 491 U.S. at 407 (1989), quoting Clark v. Community for

Creative Non-Violence, 468 U.S. 288, 298 (1984) ‘internal citations

omitted). Similarly, time, place, and manner restrictions must be

“justified without reference to the content of the regulated

speech.’” Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989),

quoting Clark v. Community for Creative Nom-Violence, 468 U.S.

288, 293 (1984) (emphasis added in Ward).

5

A. Must-Carry Regulations Are Directed At Speech

The must-carry regulations target “speech” and, there-

fore. O'Brien's premise is never met. There is no “non-

speech” or “noncommunicative” element present.’ Cable

operators exist to deliver programming, speech protected

under the First Amendment.” This Court’s jurisprudence

views laws that target the press as presumptively uncon-

stitutional and subject to strict scrutiny review. See, e.¢.,

Minneapolis Star & Tribune Co. v. Minnesota Comm’r of

Revenue, 460 U.S. 575 (1983) (striking down a special

use tax on ink and paper).

Because these regulations target a specific press me-

dium, and are not generally applicable, the governinent is

wrong in its suggestion that Associated Press v. United

States, 326 US. 1 (1945) provides the proper framework

for review. Government's Motion to Affirm (“Govt. Mo-

tion”) at 10. That case upheld the application of a gen-

erally applicable law, the Sherman Antitrust Act. to anti-

competitive activities of the press.

The government attempts to bring these speaker-specific

regulations under Associated Press by equating a specific

enforcement action against the press brought under the

antitrust laws with a law that targets the press. Govt.

Motion at 11 n.8. Obviously, all gereral laws must be

applied against specific parties, including members of the

* Any noncommunicative function of the cable industry, such as

laying wire, is constitutionally indistinguishable from the noncom-

municative functions of the print press, such as building a printing

press or purchasing ink. Both are neeessary functions to deliver

the message and therefore this Court has always treated legislation

targeting such functions as attacks on speech and therefore subject

to strict scrutiny review. See, ¢.4., Minneapolis Star & Tribune

Co. v. Minnesota Comm'r of Revenue, 460 U.S. 575 (1983); City

vf Lakewood v, Plain Dealer Publishing Co., 486 U.S. 750 (1988).

"See, 0.9., Leathers v. Medlock, 111 S.Ct. 1438, 1442 (1991)

(Cable television “is engaged in ‘speech’ under the First Amend-

ment, and is, in much of its operation, part of the ‘press.’”’),

6

press. As this Court has noted, “generally applicable laws

do not offend the First Amendment simply because their

enforcement against the press has incidental effects on its

ability to gather and report the news.” Cohen v. Cowles

Media Co., V1 S. Ct. 2513, 2518 (1991) (emphasis

added ).

If the cable industry is engaging in anticompetitive prac-

tices, the government may prosecute under the antitrust

laws. The regulations at issue here have nothing to do

with the general “business” aspects of the cable industry.

Rather. they target the press’s “speech.” and therefore,

O'Brien is inapplicable. The nature of these regulations

require strict scrutiny review.

Bb. Must-Carry Regulations Are Content-Based Intru-

sions On Editorial Discretion

The must-carry regulations are content-based intrusions

because they require cable operators to carry another's

message, regardless of the cable operator's preference.

“Mandating speech that a speaker would not otherwise

make necessarily alters the content of the speech

[T}herefore [such a law is a] content-based regulation ot

speech.” Riley v. National Fed'n of the Blind of North

Carolina, Inc., 487 U.S. 781. 795 (1988). This Court's

rulings make it clear that it is impermissible to “identiffy|

a favored speaker “based on the identity of the interests

that [the speaker] may represent’ and force[] the speaker's

opponent . . . to assist in disseminating the [favored]

speaker's message.” Pacific Gas & Elec. Co. v. Public

Utilities Comm'n, 475 U.S. 1. 15 (1986), quoting First

National Bank of Boston v. Bellotti, 435 U.S. 765. 784

(1978).

The First Amendment protects “the decision of both

what to say and what nor to say.” Riley v. National Fed’

of the Blind of North Carolina, Inc.. 487 U.S. at 797

(emphasis in original). This infringement on the cable

operator's “choice[] of what to say and what to leave

unsaid . . . [is] impermissible.” Pacific Gas & Elec. Co.

7

v. Public Utilities Comm'n, 475 U.S. at 11. In the press

context. these regulations are particularly offensive to the

First Amendment because they strike at the heart of a

free press--editorial discretion. See, e.g., Miami Herald

Publishina Co. v. Tornillo, 418 U.S. 241, 258 (1974).”

As such, they must be subject to strict scrutiny review.

Because the must-carry regulations infringe on the edi-

torial discretion of a member of the press, the lower

courts reliance on PruneYard Shopping Center v. Robins,

447 US. 74 (1980) to uphold the regulations is mis-

placed. In PruneYard, a shopping center owner had de-

nied cortain individuals permission to distribute informa-

tion on his pronerty. The California Supreme Court ruled

that the state constitution required access to the shop-

ping conte. This Court rejected the shopping center

owner's First “Amendment argument that this state-based

uccess requirement impermissibly burdened his First

TIn Pacifie Ges & Blee. Co. +. Publie Utilities Comm'n, 475 U.S.

1 (1986), this Court struck down a commission's order which

required & utility company to include a third party’s newsletter in

its customer billing envelopes. “ ‘The essential thrust of the First

Amendme:! [includes| .. . @ concomitant freedum not to speak

publicly, one which serves the same ultimate end as freedom of

speech in its affirmative aspect.” Jd, at 11, quoting Estate of

Hemingway v. Random House, 23 N.Y.2d 341, 248, 296 N.Y.S.2d

771, 776, 244 N.E.2d 250, 255 (1968) (emphasis in original).

* This Court has recownized that cable operators exercise editorial

diseretion, Sce, e.¢., City of Los Angeles v. Preferred Communica-

tions, Inc., M76 USS. 188, 494 (1986); PCC ve, Midwest Video Corp.,

410 US. 684, 707 Cbe79). Cable operators follow a process similar

to that of newspaper editors. They review potential programming

SOUreCes, asf news» oper editor reviews wire copy. They select from

among those sources particular kinds of programming to carry on

their chonnels, That is a function akin to a newspaper editor's

selee can of copy. They choose channel placements for program-

mone Thet ie « funetion akin to a newspaper editor’s selection

of column space to carry stories. With these basic commonalities, it

cannot be seriously doubted that cable operators are editors,

8

Amendment rights, in part, because it concluded that such

access did not intrude on any editorial discretion. Thus,

PruncYard is inapposite to federal regulations targeting

the press, particularly ones that infringe upon editorial

discretion.

These regulations are also content-based because. as

the dissent below noted, “Congress rested its decision to

promote these [broadcast] stations in part, but quite ex-

plicitly, on a finding about their content—that they were

‘an important source of local news and public affairs pro-

gramming and other local broadcast services critical to an

informed electorate.’ J.S$. App. Sla. quoting Cable Act

of 1992, § 2(a)(11), 106 Stat. 1461." Thus, Congress

selected a favored class of speakers (local broadcasters ) to

the detriment of another class (cable programmers).

As Judge Williams noted below, “[g]iven the finite num-

ber of channels, replacement of the cablecaster’s choice

of programs with those of local broadcasters suppresses

the alternative programs as completely as if Congress had

ordered them shut down.” J.S. App. 55a (footnote

omitted)."” But this Court has long recognized that “the

concept that government may restrict the speech of some

elements of our society in order to enhance the relative

voice of others is wholly foreign to the First Amendment.”

Buckley v. Valeo, 424 U.S. 1, 48-9 (1976).

* This justification also makes the regulations content-based under

City of Renton v. Playtime Theatres, Inc., 475 U.S. 41 (1986). In

Renton, the Court concluded that an ordinance regulating adult

movie theaters (defined by the content of the movies) was content-

neutral because it was targeted not at the content of such movies

but at the noncommunicative secondary effects of the theaters.

Here, Congress has offered no secondary effect rationale unrelated

to speech.

See also Quincey Cable TV, Inc. v. FCC, 768 F.2d 1424, 1451

(D.C. Cir, 1985), cert. denied, 476 U.S. 1169 (1986) (“In the case

of systems saturated with mandatory signals, cable programmers

are shut out entirely from the only forum capable of conveying

their programming.”).

9

The danger in applying O’Brien’s lenient standard of

review to speuker-specitic, content-based regulations is that

the tests deference presumes the constitutionality of the

Statute at issue. All general regulatory statutes necessarily

will have some limiting effect on free expression. Because

the test is properly applied to review only general regula-

tory Statutes not directed at speech, O’Brien’s interest-

balancing test is heavily weighted in the government's

favor. It presumes a statute’s incidental impact on free

speech is constitutionally permissible."

Thus, O’Brien is dangerously inadequate to review the

must-carry regulations because those regulations target the

press (and therefore speech) and are content-based."

However, the conclusion that O’Brien’s deferential stand-

ard is inappropriate to review these regulations does not

end the constitutional inquiry.

Il. FIRST AMENDMENT PROTECTION FOR SPEECH

SHOULD NOT VARY BASED ON THE MEDIUM

USED

This Court’s First Amendment jurisprudence has indi-

cated that some speakers have less First Amendment pro-

tection due to the nature of the medium of communica-

tion. Thus, content-based regulations, such as the Fairness

"See, eg., Clark v. Community for Creative Non-Vivlence, 468

U.S. 288 (1984); Members of the City Council of Los Angeles v. Tax-

payers for Vincent, 466 U.S. 789 (1984) ; United States v. Albertini,

472 U.S. 675 (1985).

'2 Even under O'Brien's less demanding standard, however, these

must carry provisions must fail. As Appellant Turner notes in its

Reply Brief, the “must carry provisions-—divesting editorial dis-

cretion from all cable operators as a class for the benefit of all

broadcasters as a class at the expense of all cable programmers

as a class--are about the most blunt instruments imaginable for

protecting against genuinely anticompetitive actions.” Appellant

Turner Broadcasting System, Inc.’s Reply Brief in Opposition to

Motions to Affirm at 6. Thus, “a substantial portion of the burden

on speech does not serve to advance its goals.” Ward v. Rock

Against Racism, 491 U.S. 781, 799 (1989).

10

Doctrine, have been upheld when applied to the broadest

medium, though found impermissible when applied to

newspapers. Compare Red Lion Broadcasting Co. vy.

FCC, 395 U.S. 367 (1969), with Miami Herald Publish-

ing Co. v. Tornillo, 418 U.S. 241 (1974). Were cable

afforded the same First Amendment protection as news-

papers, these must-carry regulations would not survive

constitutional review.'’ The fundamental question before

this Court then is whether cable should be given full First

Amendment protection, as articulated in) Tornillo, or

Whether, because of its medium of delivery. it is only en-

titled to a lower level of protection. similar to Red Lion.

Thus far. this Court has indicated, in sometimes cryptic

terms. that cable television “is engaged in ‘speech’ under

the First Amendment, and is, in much of its operation.

part of the ‘press.”” Leathers v. Medlock, 111 8. Ct. at

1442." Nevertheless, despite grappiing with cable’s status

for over 20 years, this Court has been reluctant to define

cable's First Amendment protection.'* Unfortunately, this

See Turner Broadcasting Syst.. Ine. vo FCC. 118 S.Ct. 1806,

1807-08 (1993) (Rehnquist, C.J., in chambers) (“Under Tornillo.

Congress plainly could net impose the must-carry provisions on

privately owned newspapers.”). In Tornillo, the Court struck down

a right-of-reply statute without opplying avy balancing test. Other

decisions have subjected content-based restrictions to strict serutiny

review and will only be upheld if the “regulation is necessary to

serve x compelling state interest and is narrowly drawn to achieve

that end.” Simon & Schuster, Ine. +. Memb rs of the New York

State Crime Victims Board, 112 S.Ct. 501, 509 (1991), quoting

Arkansas Writers’ Project, Ine. +. Ragland, 481 US. 221. 22)

(1987). These must-carry regulations would not survive strict scru-

tiny review.

“This Court has recognized that cable operators exercise a

significant amount of editorial discretion with respect to pro-

gramming supplied to subscribers. See, ¢.g., City of Los A naeles v.

Preferred Communications, Inc., 476 US. 488, 494 (1986),

“In City of Los Angeles v. Preferred Communications. Tne.,

476 U.S. 488 (1986), this Court noted that “lejable television

1]

Court's reluctance to recognize full First Amendment pro-

tection with respeet to cable puts cable in familiar com-

pany with other new media developed in this century.

such as motion pictures and broadcasting."

A. This Court Has Justified Lower First Amendment

Protection By Distinguishing New Media From The

Print Press

In confronting new media. this Court has been very

hesitant to grant full First Amendment protection com-

parable to that enjoyed by the print press. Rather, this

Court has sought to distinguish new media from print

media, thereby justifying a different (always lower) level

of First Amendment protection for the former.’? Unfor-

tunately, because the Court has focused on the medium.

and not the message. the government has been allowed to

infringe severely upon the First Amendment riehts of elee-

tronic publishers. The result: With the advent of the elec-

tronic age. a great deal of speech is subject to regula-

tion inconsistent with First Amendment principles."

paurtakes of some of the aspects of speech and the communication

of ideas as do the traditional [press}." Jd. at 494. This view

demonstrates the lone-standing bias against recognizing cable as

a fully protected First Amendment specker. Of what “aspects of

speech” does the traditional press partake that cable does not?

There seem to be none,

"See, eo. 3. Pmord, Freepom. TECHNOLOGY, AND THE Fire

AMENDMENT (1991).

wsN ‘ es ie 7 4 fen 2? wadousting ('h, e. Ft , te BOD of 4 367,

BSG yo "| DOnTerence in the churseteristies of new medin

justify differences in the First Amendment standards applied to

them,”) + Southerstern Promotions, Ltd. +. Conrad. 420 US. 546,

997 (9975) (“Each medium of expression .. . must be addressed

for First Amendment purposes by strndords suited to it, for each

miy present its own problems.”

The! de Sola Pool explained the effect of the Court's approach

us foliows: “A long series of precedents, each based on the Inst

and tresting clumsy new technologies in’ their early forms as

specialized business machines, has led to a scholastic set of dis-

] i]

1. Cinema

As curious as it may seem now, in 1915 this Court

ruled that motion pictures were not part of the press and

therefore did not merit any First Amendment protection.

Meutual Film Corp. v. ladustrial Commission of Ohio, 236

U.S. 230 (1915). In upholding a censorship board to

review motion pictures before distribution, this Court

noted that motion pictures did not merit any First Amend-

ment protection because “the exhibition of moving pictures

is a business. pure and simple, originated and conducted

for profit. like other spectacles, not to be regarded... as

part of the press... .° /d. at 244.

In reasoning similar to that used to justify lower First

Amendment protection for cable, the Court noted that

motion pictures were mere conduits of another's informa-

tion, “mere representations of events, of ideas and senti-

ments published and known.” /d. at 244. It took 37

years before the Court specifically overruled Mutual Film

in Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495 (1952)."

2. Broadcast

In confronting First Amendment rights asserted by radio

and television broadcasters, this Court justified greater

governmental regulation, including content controls, based

on the physical scarcity of the spectrum and_ physical

interference. See National Broadcasting Co. v. United

States, 319 U.S. 190, 226 (1943) (“Unlike other modes

of expression, radio inherently is not available to all. That

tinctions that no lonver correspond to reality. As new technologies

have eequired the functions of the press, they have not acquired

the rights of the press.” T, Pool, TECHNOLOGIES OF FREEDOM 250

(1983).

Nevertheless, this Court ruled in 1965 that motion pictures

could still be subject to censorship boards pursuant to certein

procedural safewuards, See Freedman v. Meryland, 380 U.S. 51,

58 (1°65). The last local movie review board was open until this

past summer, See Elizabeth Kastor, It's a Wrap: Dallas Kills Film

Board; To Save £60,000, City Stops Rating Movies, Wash. Post,

Aug. 13, 1993, at D1.

13

is its unique characteristic, and that is why, unlike other

modes of expression, it is subject to governmental regula-

tion.” ): Red Lion Broadcasting Corp. v. FCC, 395 US.

367. 390 (1969): FCC v. League of Women Voters of

California, 468 U.S. 364 (1984). In FCC v. Pacifica

Foundation, 438 U.S. 726 (1978), this Court ruled that

regulation of indecent broadcasting was justified because

broadcasting was “uniquely pervasive” and “uniquely ac-

cessible to children.” /d. at 748-49. By finding unique

characteristics with respect to the medium of communica-

tion, the Court has justified content regulation of protected

speech, which, if delivered through the print medium,

would be struck down.

3. Cable

Like its predecessors, cable has been distinguished from

the print press because of its mode of delivery. The

most common arguments are that cable must use public

rights of way, is a natural monopoly, and exercises much

less editorial discretion than newspapers.” In this case,

appellees have also argued that cable has received govern-

ment assistance in securing the right to retransmit the pro-

grams of broadcast channels, free of charge (through com-

pulsory copyright access), and that cable can privately

censor broadcasters (a variant of the natural monopoly

avgument).

The public rights of way argument is fatally flawed.

Newspapers, too, must use public rights of way for de-

livery. through the placement of vending machines on

public sidewalks and the use of public streets by news-

paper trucks. Even if a cable system did impose a slightly

different burden, the proposition that such use (and reg-

“" See, e.n., Omega Satellite Praducts Co. v. City of Indianapolis,

694 F.2d 119 (7th Cir. 1982): Community Communications Co. rv.

(tu of Roulder, 660 F.2d 1370 (10th Cir, 1981), cert. dismissed.

16 TS 1001 (1982): Telesat Cabh vsion, Ine. v. City of Riviera

Beech, 773 F. Supp. 383 (S.D. Fla. 1961),

14

ulation) justifies comteat contrel dees not follow. As

Onines recognized: “Ny doubt a municipality has seme

power to contre! the placement of newspaper vending

machines. But any effort to use that power as the basis

for eteting what must be placed in such machines would

surely be invalid.” *'

A useful analogy may help expose the bias against non-

print media inherent in this argument. Suppose a law

required newspaper venders who operate on'y on public

sidewalks to ca ty the local newspapers or books by local

writers. A vender could sell US4 Today but only

the vender alse carricd the Washine on Posi. Such a kew

would be struck down before the ink was dry on the lecis-

Intion. ' this sense. the pesitien ef 2 cable operator is

no different than our hypothetica’ newspaper vend

The ratural monopoly privete censorship argument is

equally flawed. It is arguable whether cable ts a nacuri!

monopoly, rather its monopolistic cheracteristics may be

caused deliberately by politico! choices.~ Nevertheless,

2 Ouiney Catle TV, Ine. «. FCC, T7683 F.2d at 1449: see also

Picferved Communications, Ine. vc. Cin of Los Angeles, Calif., T5A4

F.2d 1596, 1406 (oth Cir, 1685), aff'd eh nom. City of Los Angeles

vr. Preferred Commun-ealions, lee... 176 USS. 488 (7986); Lee, Cable

Freaweli vee and the Firat Ai:scndmeent. 36 Vand. L. Rev. 867, SRO-

ROR (1OR"% corening that this Court's decisions ecneerning regula-

tien of public facilities, such as streets, provide constitutional pro-

tection bere. 5 t ewonte nt-hased intri ej ie).

-!Oniney noted that “the ‘economic scarcity’ armoment rests on

the entirely anproeven and indeed deubtful assumption that cable

operstors sre in a position to exact monopolistic charees. .. More-

over, the tendency toward monopely, if present at all, may wel! be

attributable more to governmental actien -particularly the munie-

ips! franchising process than to any ‘natural’ economic phenom-

enon.” Qeineyw Cable TV, Ine, oc. FCC, 768 F.2d at 1150 (citations

omitted : see else William FE. Lee, Cable Franchising and the First

Amend cnt, 36 Vand. L. Rev. 867, 880-887 (1985) (diecussine lock

of empirical proof and the need te define the relevant product mar-

ket): Themas W. Voglett, Pricate Monopoly and the Putlie Tater-

eet: An Reenomic Analysis of the Cable Television Franchise, WA

Univ. Pa. L. Rev. 1335 (1986).

15

“whatever ihe outcome of the debate over the monop-

Olistic characterisiies of cab'e, the Supreme Court has

categorical'y rejected the suggestion that purely econcmic

constraimis on the number of voices available in a given

community justify otherwise unwarranted intrusions into

First Amendment rights.” In Tornil/lo, the Court went

to great lengths to Wlustrate the prevalence of one-news-

paper cities. the growth of national newspaper chuins,

and the prohibithhe costs of entering the newspop-r du-i-

ness. Despite such findings, this Court siruck down a

richt-of-reply siatuie. Thus. the natural monopoly argu-

ment is irrelevant because “there is no meanineful ‘dis-

tinction between cab'e television and newspapers on this

point.” J/d., quoting Home Box Office, Inc. v. FCC, 567

F.2d 9, 46 (D.C. Cir. 1977), cert. denied, 434 US. 829

(1977).*

The government argues that cable operators deserve

less First Amendment protection because although th y

exercise editorial discretion. cable operators’ “fuaciions

are quite distinct when they serve as passive conduits

retransm tting the programming of others, rather than

originating programming of their own.” Govt. Motion at

“3 Quiney Cable TV, lve. ¢. FCC, 768 F.2d at 1150, citing Miemi

Hevald Publishing Company v. Tornille, 118 US. 241 (1973).

“In an otherwise superb opinion which reaches the right result

and applies the proper standard of review to these must-carry pro-

visions Judge Williams errs when he suggests that the mandatory

access provisions in the Cable Communications Policy Act of 1984,

Pub. L. No, 98-549, 98 Stat. 2779 (417 U.S.C. £532), as amended,

would pass constitutional muster under Torwiilo, He seeks to dis-

tinguish cable from print by neting its special character —“hottle-

neck control of aecess to an important medium.” J.S, App. Tla. As

discussed, spre, one-cable towns are often due to political factors.

Moreover, Cornllo recoonized the “bottleneck” features of the press

industry and still rejected the richt-of-reply statute. The gravemen

of Toracle was that all access provisions uncenstitutionally intrude

on editorial discretion.

16

27-28. The proposition that cable operators exercise less

editorial discretion than newspapers because they transmit

others programming is dubious at best. The content of

many smal! town newspapers, for example, is generated

not by the paper's staff writers but by national wire serv-

ices. Similarly, most op ed pages of major newspapers

carry syndicated writers, again merely transmitting a third

partys message. But such “retransmissions” in news-

papers are never used to classify newspapers as passive

conduits,

Such a view also does not correspond with history.

Arthur Schlesinger described the workings of the colonial

newspaper editor: “Not until the rise of the troubles with

Britain did the editor come to think of himself as a maker

of opinion as well as a transmitier of news and literary

offerings. Yet he unwittingly did something, however lit-

tle, in that direction by the very act of deciding what to

put in or leave out of his paper, and once in a great while

he offered a terse comment of his own.” *

Appel'ees argument that cable’s prior receipt of gov-

ernmental assistance justifies increased regulation is

equally unavailing. As the dissent below noted, govern-

ment largesse does not condemn one to second-class First

Amendment protection. J.S. App. 70a. If that were the

test, newspapers would surely be one of the most regu-

lated industries. See, e.g., Columbia Broadcasting System,

Inc. v. Democratic National Committee, 412 U.S. 94, 145

(1973) (Stewart, J.. concurring) (noting that newspapers

receive Government mail subsidies and a limited antitrust

immunity ).

Finally, the government’s argument that cable is dis-

tinct from the print press because, unlike the print press.

cable has been subject to a long history of regulation

“merely begs the question.” Preferred Communications,

“* A. Schlesinger, PRELUDE TO INDEPENDENCE 61 (1958) (em-

phasis added).

17

inc. v. City of Los Angeles, Calif., 754 F.2d 1396, 1405

n.8 (9th Cir. 1985), aff'd sub nom. City of Los Angeles

v. Preferred Communications, Inc., 476 U.S. 488 (1986).

This argument is akin to saying in the Reconstruction

Era that because former slaves had been subject to slavery

for 200 years, they would only be entitled to lower consti-

tutional guarantees of freedom. Obviously, if something

is wrong, the fact that it has been wrong a long time does

not make it right.

All of the arguments attempting to distinguish cable

from the print press to justify lower First Amendment

protections ring hollow and emphasize the point that

“[t}here is never a paucity of arguments in favor of limit-

ing the freedom of the press.” Columbia Broadcasting

System, Inc. v. Democratic National Committee, 412 US.

at 144 (Stewart, J., concurring).

Bb. First Amendment Values Do Not Justify Content-

Based Regulation

Legislative intrusions on new electronic media are usu-

ally taken in pursuit of First Amendment “values”’—thus

the government steps in to ensure a vibrant marketplace

of ideas. For example. in Red Lion, the Court cited the

First Amendment's “ends and purposes” in sacrificing the

editorial discretion of broadcasters and making the listen-

ers interest paramount.*"

In another decision, this Court noted “an unusual order

of First Amendment values” present when considering the

broadcast medium.” In justifying the must-carry regula-

** Red Lion Broadcasting Co. v. FCC, 395 U.S. at 390. The Court

added: “It is the right of the viewers and listeners, not the right

of the broadcasters, which is paramount ... [and]! [i]t is the right

of the public to receive suitable access to social political, esthetic,

moral, and other ideas and experiences which is crucial here.” Jd.

at 590-91,

“7 Columbia Broadcasting System, Tne. v. De mocratic National

Committee, 412 U.S. 94, 101 (1973).

18

tions, Congress cited the First Amendment values of pro-

moting a diversity of views and ensuring that all viewers.

not just cable subscribers, have access to local broadcast

stations. Cable Act of 1992, $ 2(a)(6)-(12), 106 Stat.

1461. Thus, the cable operator’s editorial discretion

would be sacrificed for a larger good.”

These actions (and justifications) run afoul of the besic

principle that the First Amendment protects the press

from governmental interference. “The very purpose o7 the

First Amendment, is to foreclose public authority from

assuming a guardianship of the public mind through reve

lating the press.” Riley v. National Fed'n of the Blind of

Nerth Carolina, Inc., 487 U.S. 781, 791 C1988). quoting

Thomas v. Collins, 323 U.S. 516, 545 (1945) (Jackson,

J.. concurring )."

Red Lion’s audience-rights approach to the First

Amendment turns the purpose of the Amendment on iis

head—a bulwark that guaranteed that the government

may not interfere with free speech becomes the very

excuse to interfere.” It is a “frightening specter” to view

*- According to the Senate committee report to the Cable Act of

1922, °\t he First Amendment also supports government regulations

intended to promote a diversity of voices, even if some incidental

loss of editorial discretion results, Local signal carriage regulations

ensure that cable subscribers receive a diversity of voices, not just

the signals chosen by the cable operator.” S. Rep, No. 102-92, 102d

Cong., Ist Sess. (1991), reprinted in 1992 ULS.C.CLA.N, 1135, 1189.

““ Thus, “|tlo this end, the government, even with the purest of

motives, may not substitute iis judgment as to how best to speak

for that of speakers and listeners; free and robust debate cannot

thrive if directed by the government.” TJd.; see also Columbia

Rroadcasting Sustem, Inc. v. Democratic National Committee, 412

U.S. at 116 (Stewart, J.. concurring) ("If we must choose whether

editorial decisions are to be made in the free judgement of individual

broadcasters, or imposed by bureaucratic flat, the choice must be

for freedom.”).

"See Glen O. Robinson, Catle Television and the First Amend-

ment, 6 Comm. & the Law 17, 55 (1081 neting alse that for eon-

19

the First Amendment as “requirling] the government to

impose controls upon private [speakers] in order to pre-

serve First Ameadnient values.” Columbia Broadcasiing

System, Inc. v. Democratic National Committee, 412

U.S. at 133 (Stewart, J.. concurring ).”

Ht. THIS COURT SHOULD DISCARD MEDIUM-BASED

RIGHTS APPROACH AND ADOPT A MESSAGE-

BASED RIGHTS APPROACH

The inclination to distinguish al! other electronic medi:

from print media, including cable, may ultimately dimin-

ish the traditional First Amendment protection afforded

the print press. The Court's current approach of assien-

ins different levels of protection based on the medium

of delivery is on a collision course with technology * The

walls that have historically separated the catevor'es are

disappearing with technological advances and the old

legal theories strain under these new circumstances. As

stitutional adjudication, the audience-rights approach “seems mis-

chievous; it undermines the very essence of the First Amendment.

as a restraint on government interference, insofar as it subordinates

the right of a sperker to spexk what he wants to speak to the right

of the listener to hear what he wants to hear.”),

'Under an audience-rights theory, governmental interventions

are meant to “preserve an uninhibited marketplace of ideas.” Red

Lion Broadcasting Co. v. FCC, 395 US. at 890. But such thinking

is directly contrary to the Court’s conelusion in Torniilo that a

“ g overnment-enforced right of access inescapably ‘dampens the

Viger and limits the variety of publie debate.” Miami Herald

Publishing Co, «, Tornillo, AVR US. at 257, quoting New York Times

Co. rv, Sullivan, 376 US, 254, 279 (1964): accord Riley vo National

Ked'n of the Blind of North Carolina, Ine., A837 US. 781, 791 (1988).

It is not surprising that despite nearly identical facts, Tornillo

does not mention Red Lion.

“For example, the advent of new spectrum technologies, such

as digital compression technologies, have expanded the use of the

spectrum exponentially in the past five vears. Rather than being

a limited or searce commedity, the space on speetrum now can be

considered to be unlimited, constrained only by economie considera-

tions. See, e.9., George Gilder, What Spectrum Shortage?, Fornes,

May 27, 1991, at 324.

20

the Congressional Otic: of Technoleey Assessment con-

cluded. “| njew technologies. such as electronic publishing,

may not Ht easily into old models of regulation, and First

Amendment distinctions between rights of print publish-

ers. broadcasters, and common carriers will become in-

creasingly difficult to justify.”

For example. if this Court concludes that cable should

only receive Red Lion-like protection, could an electronic

edition of the Wail Street Journal delivered by cable to

a subscribers desktop be subject to a right-of-repiy stat-

ule or fairness doctrine, while its printed counterpart

delivered to that subseriber’s door step is protected from

such tnirusions?

This scenario would seem to be the implication. of

Telecommunications Research & Action Center v. FCC,

801 F.2d 501 (D.C. Cir. 19863. cert. denied, 482 US.

919 (1987) ("TRAC™). TRAC concerned whether Red

Lion would govern teletext technology when it was sent

through an otherwise unusuable portion of the spectrum.”

Despite the similarities of iclotext to the print medium,

the D.C. Circuit concluded that when teletext used the

specthum., Red Lion covcrned.” fn fact, Professor Robert

“US. Congress, Office of Technology Assessment, Science, Tech-

nology vue file Firs! Awe ndmentl, OTA-CIT-369 2 (Washington,

D.C.: U.S. Government Printing Oflice, January 1988).

“Teletext is a form of electronic information services (“EIS”).

Much of EIS is sent through telephone lines and cable. EIS is

essentially an “electronic library” offering subscribers access to a

wide array of topical databases, news, magazines, bulletin boards,

and other information,

“In that opinion, the D.C. Circuit discussed at length the defi-

ciencies in the scarcity rationale, noting that all economie goods,

including newsprint and ink, are scarce. “The attempt to use a

universal fact as a distinguishing principle necessarily leads to

analytical confusion.” Telecommunications Research & Action Ctr.

ve FOC, 801 F.2d at 508. The government in this case implicitly

acknowledges the bankruptey of the spectrum searcity rationale by

trying to argue that the “critical factor” justifying broadcasting

regulation has not been spectrum seareity but the “resulting in-

21

Shanyon of the Annenberg School of Communications has

argued that Congress constiiutionally may be able to im-

pose must-carry regulations on the New York Times and

Wall Street Journal because they transport copy via satel-

lite to printing plants across the country. “I think that the

spectrum is limited, and if the big users shut out the small

users, then the government should act to make fairness

the ruling guideline.” See Licensing Broadcasters: Just

What the Framers Feared?, CATO POLICY REPORT,

6. 8-9 (Jan. Feb. 1988).

The future holds only more problems that defy cate-

gorization. Fiber optics will allow telephone companies or

cable companies to deliver a multitude of services rang-

ing from video to publishing to banking services. To-

day, technology has produced almost unlimited outlets

of information. In the very near future, individuals can

have instantaneous access to information from virtually

unlimited sources.” Whether the fear of a too powerful

press limiting the marketplace of ideas was ever legiti-

mate for such regulation, today’s technological advances

certainly render such fear moot. Thus, the medium-based

rights approach only hinders speakers—-and continues to

do injustice to the principles of the First Amendment.

This Court shou!d discard that approach and apply full

First Amendment protection to all messages without re-

gard to the medium upon which they are delivered. The

recognition of cable as a full-fledged member of the press

is critical, not merely for the First Amendment rieht: of

cable operators and cable programmers, but for the new

press technologies which are on the horizon (indeed they

are here).

ability of the broadeast market to function successfully.” Govt.

Motion at 21,

“See, eg, PL Huber, M. Kellogg & J. Thorne, THe Groprsic

NETWORK I]: 1993 ReporT ON COMPETITION IN THE TELEPHONE

INDUSTRY (1992),

22

Cable and all electronic publishers shou'd be given the

same level of First Amendnent protection that the print

medium is given under Torni/io. The Framers of the Firs:

Anendment dd rot contemplate calibrating rights based

on how the messoge is deivered. Such a dim nution cf

First Amendment principles in this electronic age will

inevitably lead to less protection for all speech. Rather

than trying to create First Amendment categories for

each new medium, the Court should focus on the messaze.

and not the medium, and apply one level of First Amend-

ment protection,

In striking down the first set of must-carry rules,

Quincey noted that “tradit’onal First Amendment doctrine

[does not} fa" [] by the wayside when evaluating the pro-

tection due novel medes of communication. For the core

values of the First Amendment clearly transcend the par-

ticular details of the various vehicles through which mes-

Sages are conveyed.” Quincy Cable TV, Inc. v. FCC, 768

F.2d at 1148. Cable operators and programmers deliver

Messages no less than the pint press. That should be the

only relevant fact for First Amendment analysis. Cable

television is entitled to the same level of First: Amend-

Ment protection that the print press enioys. as are all clec-

tronic publishers. Perhaps Justice Douglas presented the

best defense for such an approach in his concurrence in

the CBS decision:

What kind of First Amendment would best serve our

needs as we approach the 2Ist century may be an

open question. But the old-fashioned First Amend-

ment that we have is the Court’s only guideline: and

one hard and fast principle which it announces is

that Government shall keep its hands off the press.

That principle has served us through days of calm

and eras of strife and T would abide by it unti! a new

First Amendment is adopted. That means, as I view

it, that TV and radio, as well as the more conven-

tional methods for disseminating news. ere all in-

cluded in the concept of “press” as used in the First

Amendment and therefore are entitled to live under

23

the laissez-faire regime which the First Amendment

sanctions.

Columbia Broadcasting System, Inc. v. Democratic Na-

tional Committee, 412 U.S. at 160-61 (Douglas, J., con-

curring ).

CONCLUSION

For all the above reasons, this Court should strike the

must-carry regulations of the Cable Act of 1992 as viola-

tive of the First Amendment.

Respectfully submitted,

JAMES L. GATTUSO MARK R. PAOLETTA *

MICHELE ISELE O’CONNOR & HANNAN

CITIZENS FOR A SOUND 1919 Pennsylvania, Ave., N.W.

ECONOMY FOUNDATION Suite 800

1250 H Street, N.W. Washington, D.C. 20006

Suite 700 (202) 887-1400

Washington, D.C. 20005 Counsel for Amicus Curiae

(202) 783-3870 Citizens for a Sound

Economy Foundation

November 9, 1993 * Counsel of Record